M/s M& D Global Pvt. Ltd., Kanpur V. Income Tax Officer- 6(1), Kanpur

ITA 400/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4797 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANAND SINHA
• Keywords: Depreciation; Opportunity of being heard; Unabsorbed depreciation

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.400/LKW/2015 ASSESSMENT YEAR:2009-10 M/S M & D GLOBAL PVT. LTD., 79/75 BANSMANDI, KANPUR. PAN:AAACM9361M VS. INCOME TAX OFFICER, (CPC) BANGALORE. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ANAND SINHA RESPONDENT BY SHRI AMIT NIGAM, D.R. DATE OF HEARING 11/01/2016 DATE OF PRONOUNCEMENT 15/01/2016 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER OF LEARNED CIT(A)-II, KANPUR DATED 23/03/2015 FOR THE ASSESSME NT YEAR 2009-10. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS: 1. HONOURABLE COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING INITI ATION DETERMINING DEEMED TOTAL INCOME U/S. 115 JB OF THE ACT BY NOT ALLOWING DEDUCTION OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION OF EARLIER YEARS. 2. HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE FACT THAT APPELLANT HAS RI GHTLY CLAIMED SET OFF UNABSORBED DEPRECIATION AND BROUGHT FORWARD LOSSES OF EARLIERS WHICH WERE DULY BEEN DISCLOSED IN THE RETURN AND WERE REQUIRED TO BE CONSIDERED IN TOTALITY FOR COMPUTING DEDUCTION U/S. 115 JB OF THE ACT AND NOT ON YEAR TO YEAR BASIS. 2 3. HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS IN FACT BY CONFIRMING ADJUS TMENT MADE OTHER THAN PERMITTED UNDER LAW IN THE INTIMATI ON U/S. 143 (1) OF THE ACT. 4. HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE FACT THAT ON BEING ACKNOWL EDGED MISTAKE APPARENT ON RECORD ASSESSING OFFICER (PROCESSING CENTRE) HAS RECTIFIED THE MISTAKE BY AL LOWING SET OFF OF BROUGHT FORWARD DEPRECIATION AND OF UNABSORBED LOSSES AS CLAIMED IN THE RETURN ON APPLICATION U/S. 154/155 FILED FOR RECTIFICATION WH ICH HE DID NOT ACKNOWLEDGE BEFORE PASSING OF APPELLANT ORD ER. 5. APPELLANT ORDER IS ILLEGAL UNJUST ARBITRARY AND BAD IN LAW. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSEE THAT EX-PARTE ORDER WAS PASSED BY CIT(A) WITHOUT GI VING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THER EFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FIL E OF CIT(A) FOR FRESH DECISION. 4. AS AGAINST THIS, LEARNED D. R. OF THE REVENUE SU BMITTED THAT SUFFICIENT OPPORTUNITIES WERE PROVIDED BY CIT(A) AN D THEREFORE, NO FURTHER OPPORTUNITY IS REQUIRED TO BE PROVIDED TO THE ASSES SEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT ALTHOUGH SEVERAL OPPORTUNITIES WERE PROVIDED BY CIT(A) BUT E VEN WHILE PASSING THE ORDER EX-PARTE QUA THE ASSESSEE, HE SHOULD HAVE DEC IDED THE ISSUE ON MERIT INSTEAD OF DISMISSING THE APPEAL IN LIMINE AND UNDE R THESE FACTS, WE FEEL IT PROPER THAT IN THE INTEREST OF JUSTICE, THE MATTER SHOULD GO BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, WE SET ASIDE THE ORD ER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTE R PROVIDING REASONABLE 3 OPPORTUNITY OF BEING HEARD TO BOTH SIDES. SINCE WE ARE RESTORING THE MATTER BACK TO THE FILE OF CIT(A), WE ARE NOT MAKING ANY C OMMENT ON THE MERIT OF THE ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:15/01/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT . REGISTRAR