D.C.I.T Cir - 4,kolkata, Kolkata V. M/s Assambrook Ltd., Kolkata

ITA 409/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4892 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NONGOTHUNG JUNGIO
• Section: 143(3); 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI M. BALAGANESH, A.M. & SHRI S.S.VISWANE THRA RAVI, J.M.) ITA NO. 409/KOL/2013 : ASSTT. Y EAR : 2009-2010 DCIT, CIRCLE-4 KOLKATA VS M/S. ASSAMBROOK LTD. (PAN: AACCA 4606M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NONGOTHUNG JUNGIO, JCIT RESPONDENT BY : SHRI RAVI TULS IYAN, FCA DATE OF HEARING : 06.01.2016 DATE OF PRONOUNCEMENT : 23 -03-2016 ORDER PER SHRI S.S.VISWANETHRA RAVI, J.M . THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 26.11.2012 PASSED BY THE CIT(APPEALS)-IV, KOLKATA I N APPEAL NO. 269/CIT(A)-IV/1011-12 FOR THE ASSESSMENT YEAR 2009- 10 FRAMED UNDER SECTION 143(3) OF THE I.T.ACT. 2. THE APPELLANT REVENUE CHALLENGING THE IMPUGNED O RDER, HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.89,11,475/ - ON ACCOUNT OF CESS ON GREEN LEAF WITHOUT CONSIDERING THE FACT THA T EXPENSES ON ACCOUNT OF CESS ON GREEN LEAF IS RELATED TO 100% AG RICULTURAL OPERATION AND SLP IS PENDING BEFORE THE HONBLE SUP REME COURT AGAINST THE DECISION OF CALCUTTA HIGH COURT IN THE CASE OF AFT INDUSTRIES LTD. VS- CIT (270 ITR 167) IN THE LIGHT OF WHICH LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 2. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DE LETE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY AND IS ENGAGED IN THE BUSINESS OF CULTIVATION, MANUFACTURE, PROCES SING AND SALE OF TEA PRODUCTS. THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICA LLY DECLARING A TOTAL INCOME OF RS.3,15,000/- ON 30.3.2010 AND THE SAME WAS PROCESS ED UNDER SECTION 143(1) OF THE ACT. NOTICES UNDER SECTION 143(2) AND 142(1) W ERE ISSUED SELECTING THE CASE FOR SCRUTINY AND DETAILS CALLED THEREON. 4. DURING SUCH PROCEEDINGS, THE ASSESSEE CLAIMED EX PENSES OF RS.89,11,475/- TOWARDS PAYMENT OF CESS ON GREEN LEA F FOR FINANCIAL YEAR 2008-09 WHICH IS RELEVANT TO THE ASSESSMENT YEAR UNDER CONS IDERATION. THE AO DISALLOWED THE SAME ON THE GROUND THAT SUCH EXPENSE S DOES NOT FORM PART OF COMPOSITE INCOME WHICH CAN BE ALLOWED AS DEDUCTION BEFORE APPLYING RULE 8 OF INCOME TAX RULES 1962. 5. AGGRIEVED BY SUCH DISALLOWANCE, THE ASSESSEE CHA LLENGED THE SAME BEFORE THE CIT(A). THE LD. CIT(A) TAKING INTO CONSIDERATIO N OF THE ORDER OF ITAT, KOLKATA IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07, DELETED THE ADDITION OF RS.89,11,475/-. 6. BEFORE US, THE APPELLANT REVENUE RELIED ON THE O RDER OF THE AO. THE LD. A/R FOR THE ASSESSEE SUBMITTED THAT A SIMILAR CASE ON IDENTICAL ISSUE IN THE CASE OF ACIT-VS- AFT INDUSTRIES WAS PENDING BEFORE THE H ONBLE SUPREME COURT FOR CONSIDERATION. THE A/R SUBMITTED FURTHER, THAT HON BLE SUPREME COURT DID NOT GRANT STAY OF ORDER PASSED BY THE HONBLE JURISDICT IONAL HIGH COURT OF CALCUTTA REPORTED IN 270 ITR 167 (CAL). 7. HEARD BOTH SIDES AND PERUSED THE MATERIAL ON REC ORD. THE FACTS RELATING TO THE AFOREMENTIONED CASE ARE THAT, THE ITAT, KOLKATA BENCHES ALLOWED THE DEDUCTION CLAIMING EXPENSES PAID TOWARDS CESS ON GR EEN LEAF, AGAINST WHICH, THE 3 REVENUE FILED A WRIT PETITION BEFORE THE HONBLE HI GH COURT WHICH, IN TURN, PASSED ORDER IN FAVOUR OF THE ASSESSEE. AGGRIEVED B Y SUCH ORDER, THE REVENUE FILED A SLP BEFORE THE HONBLE SUPREME COURT WHICH IS PENDING ADJUDICATION. AS SUBMITTED BY THE AR THAT THE HONBLE SUPREME COU RT DID NOT GRANT STAY IN THE SAID SLP. BARING SUCH SUBMISSION AND CONSIDERIN G THE ORDER PASSED BY THE ITAT, KOLKATA BENCHES, KOLKATA IN ASSESSEES OWN CA SE, WE ARE OF THE VIEW THAT AS ON THIS DAY, THERE IS NOTHING AGAINST THE ASSESS EE, MORE SO, A FAVOURABLE ORDER BY THE HONBLE JURISDICTIONAL HIGH COURT OF CALCUTT A ON IDENTICAL ISSUES, AS IT IS IN FORCE AND BINDING ON THE APPELLANT REVENUE TO FO LLOW THE SAME. FOR THE CONVENIENCE, THE ORDER PASSED BY THE ITAT, KOLKATA BENCHES IS REPRODUCED HEREINBELOW FOR BETTER APPRECIATION. IN THIS CONNECTION, WE REFER TO THE ORDER OF THE IN COME TAX APPELLATE TRIBUNAL BENCH, KOLKATA IN THE MATTER OF ASSESSEE WHEREIN THE ABOVE REFERRED MATTER WAS DECIDED IN FA VOUR OF THE ASSESSEE. THE OBSERVATIONS OF THE TRIBUNAL ARE REPR ODUCED HEREIN BELOW: ''AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFU L PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, KEEPING IN VI EW OF THE FACT THAT THE ISSUE IS CONCLUDED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS. AFT INDUSTRIES LTD. 270 ITR 167 (CAL) WHERE THE AMO UNT PAID AS CESS WAS HELD AS ELIGIBLE FOR DEDUCTION IN COMPUTING THE COMPOSITE INCOME UNDER RULE 8 OF I. T. RULES. T HIS ISSUE IS, THEREFORE, DECIDED IN FAVOUR OF THE ASSESSEE AN D AGAINST THE REVENUE BY UPHOLDING THE ORDER OF THE COMPUTING THE COMPOSITE INCOME FROM TEA BUSINESS OF THE ASSESSEE UNDER THE RULE 8 OF THE I. T. RULES. WE MAY FURTHER MENTI ON THAT IDENTICAL ISSUE WAS THE SUBJECT MATTER OF APPEAL BE FORE THE TRIBUNAL IN THE CASE OF M/S. EMPIRE PLANTATIONS (IN DIA) LTD. AND THE TRIBUNAL VIDE ORDER DATED 28.02.2005 IN 1. T.A. NO.1600 (KO/)/2004 FOR A. Y. 2000-01 HAS ALLOWED TH E CLAIM OF THE ASSESSEE. 13.1. THE FACT THAT THE SLP IS PENDING BEFORE THE HON'BLE SUPREME COURT AGAINST THE DECISION OF THE HON'BLE C ALCUTTA HIGH COURT IN RESPECT OF AFT INDUSTRIES LTD. VS. CI T (270 4 ITR 167) WILL NOT HAVE ANY EFFECT SINCE THE HON'BLE APEX COURT HAS NEITHER SET ASIDE THE ORDERS OF THE CALCU TTA HIGH COURT NOR GRANTED ANY STAY. ' 3.3. IN VIEW OF THE ADJUDICATION OF THE HON'BLE ITA T, KOLKATA IN ASSESSES OWN CASE FOR A.Y. 2006-07, I AM OF THE VIE W THAT THE ADDITION ON ACCOUNT OF CESS ON GREEN LEAF FOR AN AM OUNT OF RS. 89,11,475/- MADE BY THE A.O. IS NOT JUSTIFIED AND S HOULD BE DELETED. 8. RESPECTFULLY FOLLOWING THE ORDER PASSED BY THE I TAT, KOLKATA, WE CONFIRM THE ORDER OF CIT(A) IN DELETING THE DISALLO WANCE OF RS.89,11,475/- MADE BY THE AO. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE IS DISMISSED. 9. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MARCH, 2016. SD/- SD/- ( M. BALAGANESH) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 23/03/2016 TALUKDAR/SR.PS COPY OF ORDER FORWARDED TO: 1 M/S. ASSAMBROOK LTD., 1, SHAKESPEARE SARANI, KOLKAT A 700 071 2 DCIT, CIRCLE-4, KOLKATA 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA 5