M/s. Choudhary Freight Carrier, JODHPUR V. DCIT, JODHPUR

ITA 427/JODH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70334 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 22-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Depreciation; Wrong claim
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NO.427/JODH/2013 ASSESSMENT YEAR: 2007-08 M/S CHOUDHARY FREIGHT CARRIER, VS. DY. COMMISSION ER OF INCOME TAX, C/O. SHRI U.C. JAIN, ADVOCATE, CENTRAL CIRCLE-1, JODHPUR. SHATRUNJAY HARI SINGH NAGAR, PALI ROAD, JODHPUR. (PAN: AABFC 0104 E). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI U.C. JAIN RESPONDENT BY : SHRI N.A. JOSHI, D.R. DATE OF HEARING : 18.11.2013 DATE OF PRONOUNCEMENT : 29.11.2013 ORDER PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 200 7-08 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), JAIPUR DATED 24.05.2010. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A FIRM DERIVING INCOME FROM PLYING OF VEHICLES, COMMISSION AND INTE REST. THE ASSESSEE OWNS A POWER WIND MILL AND DERIVES INCOME FROM GENERATION OF POWER. THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IA OF THE INCOME TAX ACT, 1961, THE ACT FOR 2 ITA NO.427/JODH/2013 A.Y. 2007-08 SHORT, AMOUNTING TO RS.25,68,521/-. THE A.O. NOTIC ED THAT FORM NO.10CCB WAS NOT SUBMITTED BY THE ASSESSEE WHICH IS REQUIRED UND ER THE ACT TO CLAIM DEDUCTION UNDER SECTION 80IA OF THE ACT. THE ASSESSEE FIRM C OMMENCED THE ELIGIBLE BUSINESS OF POWER GENERATION FROM THE WIND MILL IN THE A.Y. 2004-05 BY MAKING INVESTMENT OF RS.2,90,53,244/-. THEREFORE, HE COMP UTED THE PROFIT OF THE ELIGIBLE BUSINESS FROM THE A.Y. 2004-05 ONWARDS TREATING IT AS THE ONLY SOURCE OF INCOME IN THE CHART GIVEN IN THE ASSESSMENT ORDER AND AS P ER THIS CHART THE RESULTANT LOSS AFTER ADJUSTMENTS OF BROUGHT FORWARD LOSSES OF EARL IER YEARS ON ACCOUNT OF DEPRECIATION CAME TO RS.1,93,86,488/-. THUS, THE A .O. FOUND THAT THE ASSESSEE HAS MADE WRONG CLAIM OF DEDUCTION UNDER SECTION 80IA OF RS.25,68,521/- AND HAS THUS DISALLOWED THE SAME. AGGRIEVED, THE ASSESSEE WENT IN APPEAL AND AFTER R ELYING ON VARIOUS DECISIONS IN ITS FAVOUR CONVINCED THE LD. CIT(A) TH AT THE REQUISITE CONDITIONS TO CLAIM DEDUCTION UNDER SECTION 80IA(5) ARE FULFILLED . THE CIT(A) HAS TREATED THIS UNIT AS INDEPENDENT BUT HE GAVE FINDING THAT WHERE NO LOSSES OF ELIGIBLE UNIT ARE CARRIED FORWARD AFTER BEING SET-OFF AGAINST PROFITS OF THAT SOURCE IN THE YEAR ITSELF, IT IS THE MANDATE OF LAW THAT SUCH LOSSES OF EARLIER YEARS, THOUGH ALREADY ADJUSTED ARE ONCE AGAIN TO BE NOTIONALLY BROUGHT FORWARD AND SET OFF AGAINST PROFITS OF ELIGIBLE UNIT WHILE COMPUTING DEDUCTION UNDER SECTION 80IA. THEREFORE, HE HAS HELD THAT 3 ITA NO.427/JODH/2013 A.Y. 2007-08 THE UNABSORBED DEPRECATION OF THE POWER PROJECT HAS TO BE SET-OFF AGAINST THE PROFITS OF THE SAME UNIT FOR THE PURPOSE OF DEDUCTION UNDER SECTION 80IA OF THE ACT BECAUSE THE AUDIT REPORT IN FORM NO.10CCB WAS NOT F ILED ALONG WITH THE RETURN OF INCOME. THE LD. CIT(A) HAS CONFIRMED THE FINDING O F A.O. AND HAS UPHELD THE DISALLOWANCE OF RS.25,68,521/- MADE BY THE A.O. 3. AGAINST THIS ORDER, THE ASSESSEE HAS COME IN SEC OND APPEAL. IT WAS ARGUED THAT THE ISSUE RAISED IN THIS APPEAL STANDS COVERED BY THE DECISION OF THIS VERY BENCH IN ASSESSEES OWN CASE FOR A.Y. 2009-10. A C OPY OF THIS ORDER DATED 04.07.2013 RENDERED IN ITA NO.441/JODH/2012 FOR A.Y . 2009-10 IN ASSESSEES OWN CASE HAS BEEN FILED FOR OUR PERUSAL. THIS FACT COU LD NOT BE CONTROVERTED SUCCESSFULLY BY THE LD. DEPARTMENTAL REPRESENTATIVE AS THIS ISSUE TOO STANDS COVERED IN FAVOUR OF THE ASSESSEE. 4. HOWEVER, THIS APPEAL OF THE ASSESSEE IS FOUND TO BE DELAYED BY 1083 DAYS OF WHICH CONDONATION PETITION HAS BEEN FILED WHICH IS SUPPORTED BY DULY ATTESTED AFFIDAVIT. FOR READY REFERENCE, WE REPRODUCE BELOW THE ENTIRE APPLICATION IN WHICH THE REASONS FOR THIS LONG DELAY ARE MENTIONED. 4 ITA NO.427/JODH/2013 A.Y. 2007-08 DATED 22/07/2013 FROM, M/S CHOUDHARY FREIGHT CARRIER PLOT NO.3, BHOPAL NAGAR, HOTGI ROAD, SOLAPUR (MAHARASHTRA) AT PRESENT C/O. SHRI BADRI RAM CHOUDHARY JODHPUR TO, THE HONBLE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. PAN : AABFC0104E ASST. YEAR : 2007-08 SUB: APPLICATION FOR CONDO NATION OF DELAY IN FILIN G APPEAL BEFORE HONBLE TRIBUNAL HONBLE SIRS, THE HUMBLE PETITION ON BEHALF OF THE ABOVE NAMED FIRM FOR CONDO NATION OF DELAY IN FILING THE APPEAL IS ON TH E FOLLOWING FACTS & GROUNDS :- FACTS OF THE CASE 1] THAT THE APPELLANT FIRM WAS EARLIER REASSESSED A T SOLAPUR, MAHARASHTRA AS THE REGISTERED ADDRESS OF THE FIRM I S PLOT NO.3, BHOPALE NAGE, HOTGI ROAD, SOLAPUR (MAHARASHTRA). 2] THAT THE JURISDICTION OVER THE FIRM WAS TRANSFER RED BY ORDER U/S 127 AS A SEARCH U/S 132 WAS CARRIED OUT AT THE RESI DENCE AND BUSINESS PREMISES OF ONE OF THE PARTNER SHRI BADRI RAM CHOUD HARY. 3] THAT ON TRANSFER OF THE FIRM WITH DCIT, CENTRAL CIRCLE-1, JODHPUR THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 24.12.2009 AND APPEAL WAS PREFERRED BEFORE THE CIT(A), CENTRAL, JO DHPUR WHICH WAS 5 ITA NO.427/JODH/2013 A.Y. 2007-08 DECIDED ON 24/05/2010 AND THE ORDER WAS SERVED 05/0 6/2010 AT JODHPUR. 4] THAT IN THE ORDER OF CIT(A) THE ADDRESS OF THE F IRM WAS GIVEN AS THAT OF SOLAPUR (MAHARASHTRA) AS SUCH ON RECEIPT OF THE ORDER THE SAME WAS SENT TO SOLAPUR WHERE THE ACTUAL BUSINESS IS CA RRIED OUT FOR TAKING NECESSARY STEP IN FILING OF THE APPEAL. 5] THAT SOLAPUR OFFICE ON RECEIPT OF THE ORDER PLAC ED ON THE FILE ON THE PRESUMPTION THAT NECESSARY ACTION HAS ALREADY B EEN TAKEN AT JODHPUR WHERE THE JURISDICTION STOOD TRANSFERRED AN D THE SAME WAS NOT PROCEEDED DUE TO THIS MISTAKE. 6] THAT RECENTLY IT CAME TO NOTICE THAT NEITHER THE APPEAL WAS FILED AT JODHPUR NOR AT PUNE (WHERE THE JURISDICTION OVER THE SOLAPUR LIES) AS SUCH THE ASSESSEE HAS PRESENTED THIS APPEAL ON22/07 /2013. HAVING DISCUSSED THE FACTS OF THE CASE I WOULD LIKE TO SUBMIT GROUNDS FOR CONDO NATION OF DELAY IN FILING THE APPEAL. GROUNDS FOR APPEAL 1] THAT THERE WAS NO DELIBERATE MISTAKE ON THE PART OF THE APPELLANT FIRM IN FILING THE APPEAL AS DUE TO MISTAKE THE ORD ER WAS SENT TO THE OFFICE WHERE THE BUSINESS IS ACTUALLY CARRIED OUT. 2] THAT SINCE THE JURISDICTION OVER THE CASE WAS TR ANSFERRED TO JODHPUR THE APPEAL WAS TO BE FILED AT JODHPUR. 3] THAT THE APPEAL AT JODHPUR COULD NOT BE FILED AS ALL THE ORDERS RELATING TO THE ASSESSMENT YEAR WAS SENT TO SOLAPUR (MAHARASHTRA) WHERE THE ACTUAL BUSINESS IS CARRIED OUT. 4] THAT TO IMPART JUSTICE THE DELAY MAY KINDLY BE C ONDONED. IN THE LIGHT OF ABOVE I REQUEST YOUR HONORS TO CO NDONE THE DELAY TO IMPART SUBSTANTIAL JUSTICE. THANKING YOU, YOURS FAITHFULLY 6 ITA NO.427/JODH/2013 A.Y. 2007-08 FOR M/S CHOUDHARY FREIGHT CARRIER SD/- PARTNER 5. THE LD. DEPARTMENTAL REPRESENTATIVE HAS CONTESTE D THE CONDONATION PETITION BY STATING THIS VERY LONG DELAY. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT IN THE LIGHT OF THE LEGAL POSITION ON TH E ISSUE THIS PETITION NEEDS TO BE ADMITTED AFTER ALLOWING CONDONATION FOR THE DELAY. THE LEGAL POSITION IN THIS REGARD IS AS UNDER :- THE HON'BLE SUPREME COURT HAS LONG BACK LAID DOWN A PERFECT GUIDELINE WHILE DECIDING THE CASE OF COLLECTOR, LAND ACQUISI TION VS. MST. KATIJI & OTHERS (167 ITR 471), IN THEIR PITH AND SUBSTANCE, THAT WH EN SUBSTANTIAL JUSTICE IS PITTED AGAINST PEDANTIC REASONS, THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. RECENTLY, THE HON'BLE SUPREME COURT HAS REITERATED THE SAME P RINCIPLE WHILE DECIDING THE CASE OF IMPROVEMENT TRUST VS UJAGAR SINGH (2010) 6S CC 786 (S.C) [SOURCE WWW.ITATONLINE.ORG ] BY OBSERVING THAT JUSTICE CAN BE DONE ONLY WHEN T HE MATTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPOSE IT OFF ON SUCH TECHNICALITIES AND THAT TOO AT THE VERY THRESHOLD. IT WAS STRONGLY LAID THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE FACE OF IT DELAY SH OULD BE CONDONED. IN THIS CASE, NO SUCH MALAFIDE IS EXHIBITED. 7 ITA NO.427/JODH/2013 A.Y. 2007-08 6. ADVERTING TO THE FACTS OF THIS CASE, THE ISSUE R AISED ON MERIT STANDS COVERED IN FAVOUR OF THE ASSESSEE, BUT ON TECHNICAL GROUND, IF THIS APPEAL IS DISMISSED, IT WILL AMOUNT TO SUBSTANTIAL INJUSTICE WHICH IS AGAINST TH E DICTUM OF THE HONBLE SUPREME COURT GIVEN IN THE CASE OF COLLECTOR, LAND ACQUISIT ION VS MST. KATIJI & OTHERS (SUPRA). THE REASONS MENTIONED IN THIS PETITION CL EARLY EXPLAIN REASONABILITY OF THE DELAY AND IS SUFFICIENT ENOUGH TO EXONERATE THE ASS ESSEE FROM THIS DELAY. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THIS AP PEAL. 7. SINCE THE MAIN AND SOLE ISSUE RAISED IN THIS APP EAL STANDS COVERED IN FAVOUR OF THE ASSESSEE, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2013) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH NOVEMBER, 2013 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, JODHPUR