M/s. Krishi Upaj Mandi samiti, Hoshagabad V. The ACIT, Bhopal

ITA 480/IND/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2849 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 12-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: S S DESHPANDE
• Keywords: Depreciation
• Section: 12A; 11

Judgement Text

PAGE 1 OF 5 - I.T.A.NO. 480/IND/2009 KUMS BANKHED I IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : AAALK0260G I.T.A.NO. 480/IND/2009 A.Y. : 2006-07 KRISHI UPAJ MANDI SAMITI, ACIT, BANKHEDI VS 1(1), BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI S.S.DESHPANDE, C.A. RESPONDENT BY : SMT.APARNA KARAN, CIT DR DATE OF HEARING : 26.5.2010 O R D E R PER V.K. GUPTA, A.M. THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF ORD ER OF THE LD. CIT(A)-I, BHOPAL , DATED 24.04.2009, FOR THE ASSESS MENT YEAR 2006-07. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. GROUND NOS. 1 & 2 READ AS UNDER :- 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ADDITION IS CONTRARY TO LAW, MATERIALLY INCORRE CT AND UNSUSTAINABLE IN LAW AS WELL AS FACTS. IN ADDITION THAT ALL THE PAGE 2 OF 5 - I.T.A.NO. 480/IND/2009 KUMS BANKHED I FINDINGS RECORDED THEREIN ARE CONTRARY TO THE EVIDE NCE AND INCORRECT. 2. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) BHOPAL ERRED TO GIVE THE ENHANCEMENT NOTICE U/S 251(1) OF THE INCOME-TAX ACT, 1961,, WHICH IS O PPOSED TO FACTS AND LAWS. 4. THESE GROUNDS WERE NOT PRESSED, HENCE, DISMISSED AS NOT PRESSED. 5. GROUND NO. 3 READS AS UNDER :- ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) BHOPAL ERRED TO NOT CONSIDER THE DIS ALLOWANCE OF PENSION AND RESERVE (ARAKSHIT NIDHI) AT RS. 2213 61/- WHICH IS IMPROPER, UNJUSTIFIED AND UNWARRANTED. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED TH AT IDENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN ASSESSEES OWN C ASE IN I.T.A.NO. 234/IND/2009 DATED 16.11.2009 AND REFERRED TO PARAS 6 & 7 AT PAGE 4 & 5 OF THE ORDER, WHEREIN THE TRIBUNAL HAD RESTORED THE ISSUE TO THE FILE OF AO. HENCE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE C ASE OF KRISHI UPAJ MANDI SAMITI VS. ITO , AS REPORTED IN 12 ITJ 12, TH E MATTER COULD BE RESTORED TO THE FILE OF THE AO ON SIMILAR LINES. PAGE 3 OF 5 - I.T.A.NO. 480/IND/2009 KUMS BANKHED I 7. THE LD. SR. JDR, ,ON THE OTHER HAND, PREFERRED TO R ELY ON THE ORDER OF THE LD. CIT(A). 8. WE FIND THAT THE TRIBUNAL IN EARLIER CASE HAS RESTO RED THIS ISSUE TO THE FILE OF AO TO VERIFY THE FACTS AND TO ALLOW THE QUANTUM OF ACTUAL AMOUNT TRANSFERRED TO SUCH FUND. ACCORDINGLY, WE D IRECT THE AO TO ADJUDICATE THIS ISSUE ON SIMILAR LINES. THUS, THIS GROUND STANDS ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO. 4 READS AS UNDER :- ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) BHOPAL ERRED TO NOT CONSIDER/ALLOW T HE DISALLOWANCE ON ACCOUNT OF 20% STHAI NIDHI FUND RS. 8,60,195/- WHICH IS IMPROPER, UNJUSTIFIED AND UNWAR RANTED. 10. THE LEARNED COUNSEL FAIRLY CONCEDED THAT THIS ISSU E WAS COVERED AGAINST THE ASSESSEE AS SUCH CONSISTENT VIE W WAS TAKEN BY THE TRIBUNAL IN VARIOUS CASES OF KRISHI UPAJ MANDI SAMI TI AND REFERRED TO PARA 8 & 9 OF THE ORDER OF THE TRIBUNAL IN ASSESSEE S OWN CASE IN I.T.A.NO. 239/IND/2009 IN THE CASE OF KUMS, HOSHANG ABAD VS. ACIT, 1(1), BHOPAL. ACCORDINGLY, WE DISMISS THIS GROUND OF THE ASSESSEE. 11. GROUND NO. 6 READS AS UNDER :- ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) BHOPAL ERRED TO DISALLOW THE CLAIM O F PAGE 4 OF 5 - I.T.A.NO. 480/IND/2009 KUMS BANKHED I DEPRECIATION OF RS. 4,87,387/- AND ENHANCEMENT AS M ADE IS IMPROPER, UNJUSTIFIED AND UNWARRANTED. 12. AS REGARD TO ISSUE RAISED IN THIS GROUND, THE LEARN ED COUNSEL SUBMITTED THAT THIS ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE VIDE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN I.T.A.NO. 239/IND/2009 (SUPRA), WHEREIN THE TRIBUNAL HAD HELD THAT THE LD. CIT(A) W AS NOT JUSTIFIED IN ENHANCING THE INCOME BY WITHDRAWING THE DEPRECIATIO N AND REFERRED TO PARAS 17 TO 19 AT PAGE 10 TO 12 OF THE SAID ORDER F OR OUR REFERENCE. THE LD. SR. DR COULD NOT CONTROVERT THESE CLAIMS OF THE ASS ESSEE. HENCE, RESPECTFULLY FOLLOWING THE RATIO OF THIS ORDER, WE ALLOW THIS GROUND OF THE ASSESSEE. 13. GROUND NO. 7 READS AS UNDER :- THAT THE LD. CIT(A) BHOPAL DID NOT CONSIDER THE PR OVISIONS OF SECTION 11 TO 13 OF THE INCOME-TAX ACT, 1961, WH ICH ARE DIRECTLY APPLICABLE AND THE CASE OF THE ASSESSEE BE ING REGISTRATION TRUST U/S 12A HENCE THE SAME IS IMPROP ER, UNJUSTIFIED AND UNWARRANTED. 14. THE LEARNED COUNSEL SUBMITTED THAT THE ISSUE RAISE D IN THESE GROUNDS HAD TO BE RESTORED TO THE FILE OF AO AS WA S DONE IN I.T.A.NO. 239/IND/2009 (SUPRA) AND REFERRED TO PARA 14 TO 16 OF THE SAID ORDER OF THE TRIBUNAL. WE FIND THAT THE IDENTICAL ISSUE AROSE BE FORE THE TRIBUNAL, WHICH PAGE 5 OF 5 - I.T.A.NO. 480/IND/2009 KUMS BANKHED I HAS BEEN RESTORED TO THE FILE OF AO IN ASSESSMENT Y EAR 2005-06 TO THE FILE OF ASSESSEES OWN CASE. HENCE, THIS ISSUE IS ALSO R ESTORED TO THE FILE OF AO FOR ADJUDICATION THEREOF ON SIMILAR LINES. THUS, TH IS GROUND OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH MAY, 2010. CPU* 265