ITO, Ward-4(2), Bhubaneswar V. Tribal Development Co-operative Corporation of Odisha Limited, Bhubaneswar

ITA 479/CTK/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 7767 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 01-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHENDU DUTTA J
• Assessee Lawyers: SWATI KEJRIWAL
• Keywords: Capital asset; Depreciation; Revenue expenditure
• Section: 142(1); 32

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM . / ITA NO. 479 /CTK/201 7 ( [ [ / ASSESSMENT YEAR : 201 4 - 201 5 ) ITO, WARD - 4 (2), BHUBAN ESWAR VS. TRIBAL DEVELOPMENT CO - OPERATIVE CORPORATION OF ODISHA LIMITED, RUPALI SQUARE, BHOI NAGAR, BHUBANESWAR - 751002 ./ ./ PAN/GIR NO. : A A AAT 3642 C ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI SUBHENDU DUTTA, J CITDR [ /AS SESSEE BY : MISS SWATI KEJRIWAL, AR / DATE OF HEARING : 1 2 / 0 9 /201 8 / DATE OF PRONOUNCEMENT 27 / 0 9 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT( A ) , BHUBANESWAR , DATED 30.08.2017 , PASSED IN I.T.APPEAL NO. 0218 / 2016 - 17 FOR THE ASSESSMENT YEAR 2014 - 2015 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THE ORDER OF THE LD. CIT(APPEALS) IS ERRONEOUS BOTH IN FACTS AND IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAVING REGARD TO THE REASONS STATED BY THE ASSESSING OFFICER(AO) IN PARA (4.0) OF THE ASSESSMENT ORDER, THE LD. CIT(APPEALS) IS NOT JUSTIFIED IN DELE TING THE DISALLOWANCE OF CLAIM OF BROUGHT FORWARD LOSS OF RS.16758010/ - MADE BY THE AO IN THE ASSESSMENT. 3. HAVING REGARD TO THE REASONS STATED BY THE AO IN PARA 5.0 OF THE ASSESSMENT ORDER AND IN ABSENCE OF ANY OPPORTUNITY GIVEN TO THE AO FOR VERIFYI NG THE CLAIM/MATTER W.R.T., THE SUBMISSIONS MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LD. CIT(APPEALS) IS NOT JUSTIFIED IN DELETING THE DISALLOWANCE OF RS.60,40,492/ - MADE ITA NO. 479 /CTK/201 7 2 BY THE AO IN THE ASSESSMENT TOWARDS 'DEPRECIATION ON GUN NY BAGS'. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAVING REGARD TO THE REASONS STATED BY THE AO IN PARAS 6 & 7 OF THE ASSESSMENT ORDER AND IN ABSENCE OF ANY OPPORTUNITY PROVIDED TO THE AO FOR VERIFYING THE CLAIM W.R.T., SUCH SUBMISSIONS MADE D URING THE APPELLATE PROCEEDINGS, THE LD. CIT(APPEALS) IS NOT JUSTIFIED IN DELETING THE DISALLOWANCES OF RS.6,65,055/ - AND RS.2,95,809/ - MADE U/S.40(A)(IA) OF THE I.T. ACT, IN THE ASSESSMENT. 5. HAVING REGARD TO THE SPECIFIC REASONS STATED BY THE AO IN PARAS 8 & 9 OF THE ASSESSMENT ORDER AND IN ABSENCE OF ANY OPPORTUNITY GIVEN TO THE AO FOR VERIFYING THE CLAIM/SUBMISSIONS MADE BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, LD. CIT(APPEALS) IS NOT JUSTIFIED IN DELETING THE DISALLOWANCES OF RS.1,54,780/ - AND OF RS.20,93,209/ - MADE UNDER 'TRANSPORTATION CHARGES' AND TOWARDS 'REIMBURSEMENT OF GUNNY BAGS' IN THE ASSESSMENT. 6. THE APPELLANT CRAVES TO ALTER, AMEND OR ADD ANY OTHER GROUND THAT MAY BE CONSIDERED NECESSARY IN COURSE OF THE APPEAL PROCEEDING . 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COOPERATIVE SOCIETY AND DERIVES INCOME FROM TRADING OF FOREST PRODUCTS AND INCOME FROM HOUSE PROPERTY AND FILED THE RETURN OF INCOME ELECTRONICALLY ON 28.11.2014 FOR THE A.Y.201 4 - 201 5 DECLARING TOTAL INCOME AT RS. 1,15,390/ - . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER THE AO COMPLETED THE ASSESSMENT ASSESSING TOTAL INCOME OF RS. 2,60,07,360/ - AND PASSED ORDER U/S.143(3) OF THE ACT, DATED 28.12.2016 MAKING ADDITIONS ON ACCOUNT OF NET PROFIT, DEPRECIATION ON GUN NY BAGS, LEGAL AND PROFESSIONAL FEES, ADVERTISEMENT & PUBLICITY, TRANSPORTATION CHARGES AND REIMBURSEMENT OF GUNNY BAGS. ITA NO. 479 /CTK/201 7 3 4 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS, THE ASSESSEE REITER ATED THE SUBMISSIONS MADE BEFORE THE AO AND THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND FINDINGS OF THE AO, DELETED THE ADDITIONS AND ALLOWED THE APPEAL OF THE ASSESSEE. 5 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVENUE HAS FILED AN A PPEAL BEFORE THE TRIBUNAL. 6 . BEFORE US, LD. AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). 7 . CONTRA, LD.DR RELIED ON THE ORDER OF AO AND SUBMITTED THAT THE CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITIONS MADE BY THE AO AS THE CIT(A) HAS NOT PROVIDED ANY OPPORTUNITY TO THE AO FOR VERIFYING THE CLAIM OF THE ASSESSEE AND, THEREFORE, LD. DR PRAYED FOR ALLOWING THE APPEAL. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . WE FOUND THAT THE LD. CIT(A) WHILE DELETING THE ADDI TION MADE BY THE AO ON ACCOUNT OF BROUGHT FORWARD LOSS , HAS OBSERVED AS UNDER : - 3.3 I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER AS WELL AS THE SUBMISSION OF THE APPELLANT. THE APPELLANT HAS SH OWN CURRENT YEAR'S INCOME OF RS. 3,80,94,520/ - COMPRISI NG OF NET PROFIT OF RS. 1,67,58,011/ - IN WHICH INTEREST INCOME OF RS . 2,15,15,249/ - HAS BEEN ADDED BACK. THEREAFTER, THE APPELLANT HAS SET OFF BROUGHT FORWARD LOSS OF RS. 3,80,94,520/ - . THE ASSESSING OFFICER HAS NOT DOUBTED THE CORRECTNESS OF BROUGHT FORWARD LOSS. THE REASONS AND THE JUSTIFICATION FOR MAKING ADDI TION OF RS. 1,67,58,010/ - BY THE ASSESSING OFFICER ARE NOT KNOWN. CONSIDERING THESE ASPECTS, THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 1,67,58,010/ - IS ORDERED TO BE DELETED . THE GROUND OF APPEA L IS ALLOWED. ITA NO. 479 /CTK/201 7 4 WITH REGARD TO ADDITION MADE ON ACCOUNT OF DEPRECIATION ON GUNNY BAG , THE CIT(A) OBSERVED AS UNDER : - 4.3 I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER AS WELL AS THE SUBMISSION OF THE APPELLANT. THE APPELLANT HAS USED THE TERM 'DEPRECIA TION ON GUNNY BAG' IN KEEPING WITH THE NOMENCLATURE USED AS PER THE 'GOVERNMENT OF INDIA GUIDELINES FOR PADDY PROCUREMENT' AND IT HAS NOTHING TO DO WITH DEPRECIATION AS DEFINED U/S. 32 OF THE IT ACT, 1961. IN ANY CASE, GUNNY BAG IS NOT A CAPITAL ASSET, BUT , IT IS REVENUE EXPENDITURE. SIMILARLY, THIS EXPENDITURE ON GUNNY BAG OF RS 60,40,492/ - HAS NOTHING TO DO WITH REIMBURSEMENT EXPENDITURE OF GUNNY BAGS OF RS ,2,09,32,090/ - . THE ASSESSING OFFICER HAS NOT DOUBTED INCURRING OF EXPENDITURE OF RS 60,40,492/ - . CO NSIDERING THESE ASPECTS, THE ADDITION MADE BY THE ASSESSING OFFICE OF RS60,40,492/ - : IS ORDERED TO BE DELETED. THE GROUND OF APPEAL IS ALLOWED. WITH REGARD TO ADDITION MADE ON ACCOUNT OF LEGAL AND PROFESSIONAL FEES AS WELL AS ON ADVERTISEMENT AND PUBLICI TY EXPENSES, THE CIT(A) OBSERVED AS UNDER : - 5.2 IT IS SEEN THAT THE APPELLANT HAS DEDUCTED TAX AT SOURCE ON LEGAL AND PROFESSIONAL FEES AS WELL AS ON ADVERTISEMENT AND PUBLICITY EXPENSES. ACCORDINGLY, THE ADDITIONS OF RS.6,65,055/ - AND OF RS.2,95,809/ - A RE ORDERED TO BE DELETED. THE GROUNDS OF APPEAL ARE ALLOWED. FURTHER THE CIT(A) IN RESPECT TO ADDITION MADE ON ACCOUNT OF TRANSPORTATION CHARGES AND RE - IMBURSEMENT OF GUNNY BAGS, OBSERVED AS UNDER : - 6.2 I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER AS WELL AS THE SUBMISSIONS OF THE APPELLANT. IT IS TO BE NOTED THAT THE APPELLANT IS OWNED TO THE EXTENT OF 100% BY GOVERNMENT OF ODISHA. ALL THE PAYMENTS OF TRANSPORTATION CHARGES AS WELL AS REIMBURSEMENT OF GUNNY GAS CHARGES HAVE BEEN MADE IN CHEQUE. MOREO VER, TRANSPORTATION CHARGES HAVE BEEN PAID AT FIXED 'RATE AS PER THE ORDER OF FOOD CORPORATION OF INDIA VIDE THEIR LETTER DATED 26.11.2013. CONSIDERING THESE ACCEPTS, THE ADDITION MADE BY THE AS SESSING OFFICER OF RS. 1,54,780/ - AND OF RS 20,93,209/ - IS ORDER ED TO BE DELETED. THE GROUNDS OF APPEAL ARE ALLOWED. ITA NO. 479 /CTK/201 7 5 9 . FROM THE ABOVE OBSERVATIONS OF THE CIT(A), WE FIND THAT THE CIT(A) HAS CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND FINDINGS OF ASSESSING OFFICER AND DELETED THE ADDITIONS MADE BY THE AO. LD. DR COULD NOT BRING ANY NEW MATERIAL FACT OR ANY COGENT MATERIAL TO CONTROVERT THE ABOVE FINDINGS OF THE CIT(A). ACCORDINGLY, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ABOVE FINDINGS OF THE CIT(A) AND WE UPHOLD THE SAME AND DISMISS THE GROUNDS OF A PPEAL OF THE REVENUE. 10 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 09 / 201 8 . SD/ - ( N.S.SAINI ) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 / 09 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - ITO, WARD - 4(2), BHUBANESWAR 2. / THE RESPONDENT - TRIBAL D EVELOPMENT CO - OPERATIVE CORPORATION OF ODISHA LIMITED, RUPALI SQUARE, BHOI NAGAR, BHUBANESWAR - 751002 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FI LE. //TRUE COPY//