DCIT, New Delhi V. M/s Laxmi Sugar Mills Co. Ltd., New Delhi

ITA 4718/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0029 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 30-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS BANITA DEVI
• Assessee Lawyers: R P PATHAK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH D DD D BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI A K GARODIA, ACCOUTANT MEMBER ITA NO. 4718 /DEL/2010 (ASSESSMENT YEAR 2006-07) DCIT, CIRCLE 4(1), VS. M/S. LAXMI SUGAR MILLS CO. LTD., NEW DELHI. 704, SIDHARTHA BUILDING, 96, NEHRU PLACE, NEW DELHI- 110 019. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AAACT0034G APPELLANT BY: MRS. BANITA DEVI, SR. DR RESPONDENT BY: SHRI R P PATHAK, AR ORDER ORDER ORDER ORDER PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A) VIII, NEW DELHI DATED 20.09.2010 FOR THE ASS ESSMENT YEAR 2006-07. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1) THE ORDER OF THE LD. CIT(A) IS ERRONEOUS & CONT RARY TO FACTS AND LAW. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF ` 2,28,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF MOLASES STORAGE FUND WHICH HAS BEEN ERRONEOUSLY MEN TIONED BY CIT(A) AS ` 2,34,568/-. 2.1) THE LD. CIT(A) IGNORED THE FACT THAT MONEY IN QUESTION HAS BEEN RECEIVED BY THE APPELLANT FROM ITS CLIENTS DURING THE YEAR. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS BEEN IN DELETING THE ADDIT ION OF ` 5,08,920/- MADE BY THE ASSESSING OFFICER U/S 145A O F THE INCOME TAX ACT, 1961, BEING THE EXCISE DUTY PAYABLE . 3.1) THE LD. CIT(A) IGNORED THE FACT THAT THE ASSE SSEE SHOULD HAVE INCLUDED THE EXCISE DUTY IN ITS CLOSING STOCK AS PER THE PROVISIONS OF SECTION 145A OF THE ACT. 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT HAS BEEN IN DELETING THE ADDITION OF ` 17,29,390/- BEING THE INTEREST ACCRUED ON THE EXCES S LEVY PRICE OF SUGAR. 4.1) THE LD. CIT(A) IGNORED THE FACT THAT THE ASSE SSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND INTER EST ACCRUED DURING THE YEAR TO BE TAXED AS INCOME OF TH E YEAR. I.T.A.NO. 4718/DEL/2010 2 2. IT IS SUBMITTED BY THE LD. D.R. FOR THE REVENUE THAT GROUND NO.1 IS GENERAL. REGARDING THE REMAINING GROUNDS, HE SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. A.R. FOR THE ASSES SEE SUPPORTED THE ORDER OF LD. CIT(A). IT IS ALSO SUBMITTED BY H IM THAT THESE ISSUES ARE COVERED BY THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 IN I.T.A. NO. 4472/DEL/2009 DATED 08.09.2010. HE SUBMITTED A COPY OF THE TRIBUNAL DE CISION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. REGARDING GROUND NO.2, WE FIND THAT THIS IS SUE HAS BEEN DECIDED BY THE LD. CIT(A) IN PARA 4 OF HIS ORDER WH EREIN HE HAS NOTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY VARIOUS TRIBUNAL ORDERS IN ASSESSEES OWN CASE FOR THE ASSE SSMENT YEARS 1990-91, 2004-05 AND 2005-06. THE TRIBUNAL ORDER I N ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 HAS BEEN P LACED ON RECORD BEFORE US. SINCE THIS ISSUE HAS BEEN DECIDE D BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN VARIOUS EARLIER YEARS AS HAS BEEN NOTED BY THE LD. CIT(A), WE FIND NO REASON TO INTERFERE I N THE ORDER OF LD. CIT(A) IN THE PRESENT YEAR ON THIS ISSUE BECAUSE NO DISTINGUISHING FACTS COULD BE POINTED OUT BY THE LD. D.R. FOR THE REVENUE. HENCE, BY RESPECTFULLY FOLLOWING EARLIER TRIBUNAL DECISION , GROUND NO.2 OF THE REVENUE IS REJECTED. 4. REGARDING GROUND NO.3, IT WAS SUBMITTED BY THE L D. A.R. FOR THE ASSESSEE THAT IDENTICAL GROUND HAS BEEN RAISED IN THE ASSESSMENT YEAR 2005-06 IN I.T.A. NO. 3445/DEL/2010 . IT HAS BEEN SUBMITTED THAT THIS APPEAL HAS BEEN HEARD AND THE O RDER IS AWAITED. THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT THE MA TTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION BY FOLLOWING THE DIRECTIONS OF THE TRIBUNAL ON THI S ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 . LD. D.R. FOR THE REVENUE ALSO HAD NO OBJECTION AND HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE M ATTER BACK TO THE I.T.A.NO. 4718/DEL/2010 3 FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. THE ASSESSING OFFICER SHOULD FOLLOW THE DECISION OF THE TRIBUNAL ON THIS ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 . THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PE R LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 5. REGARDING GROUND NO.4, WE FIND THAT THIS ISSUE I S SQUARELY COVERED BY THE TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05. GROUND NO.2 IN THAT YEAR WAS IDENTICAL. IN THAT YEAR, THE TRIBUNAL HAS FOLLOWED AN EARLIER TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001-02 IN I.T.A. NO. 692/DEL/2005 DATED 17.07.2009. SINCE NO DIFFERENCE IN THE FACTS COULD BE POINTED OUT BY THE LD. D.R. FOR THE REVENU E, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT Y EAR. HENCE, BY RESPECTFULLY FOLLOWING THE EARLIER TRIBUNAL DECISIO N, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE IN THE PRESENT YE AR ALSO. GROUND NO.4 OF THE REVENUE IS ALSO REJECTED. 6. GROUND NO.5 IS GENERAL. 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 30 TH MARCH 2011. SD./- SD./- (R. P. TOLANI.) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH MAR., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI