M/s. Chandrabhaga SSK Ltd., Solapur V. Asstt. CIT Cir.-1, Solapur, Solapur

ITA 514/PUN/2007

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7533 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 12-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANTKUMAR C LEUVA
• Assessee Lawyers: MRS DEEPA KHARE
• Section: 43B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI G.S. PANNU (AM) ITA NO. 514 & 515 /PN/ 2007 ( ASSTT. YEAR S : 2000 - 01 & 2001 - 02 ) M/S. CHANDRABHAGA S.S.K. LTD., VASANT NAGAR, BHALWANI, TAL. PANDHARPUR, DIS T. SOLAPUR PAN : NOT AVAILABLE .. APP ELLANT V. ASSTT. COMMISSIONER OF INCOME - TAX, CIR. 1, SOLAPUR . RESPONDENT APP ELLANT BY : MRS. DEEPA KHARE RESPONDENT BY : SHRI HEMANT KUMAR C. LEUVA ORDER PER I.C. SUDHIR J M THE ASSESSEE HAS QUESTI ONNED FIRST APPELLATE ORDER ON THE G ROUND THAT THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 3,24,768/ - IN A.Y. 2000 - 01 AND RS. 25,74,397/ - IN A.Y. 2001 - 02 MADE ON ACCOUNT OF DEFERMENT OF SALES - TAX. 2. THE RELEVANT FACTS ARE THAT THE A.O MADE ABOVE ADDITIONS SINCE CERTIFICATE OF ENTITLEMENT ISSUED BY THE COMMISSIONER OF SALES TAX REGARDING THE AVAILABILITY OF BENEFIT TO THE ASSESSEE WAS NOT FURNISHED BEFORE HIM. THE ASSESSEE MADE APPLICATION U/S. 154 BEFORE THE A.O FOR RECTIFICTION OF THE SA ID ORDER RELATING TO THE ADDITION IN QUESTION BUT COULD NOT SUCCEED. LD CIT(A) HAS UPHELD THE ACTION OF THE A.O IN REJECTING THE APPLICATION U/S. 154 ON THE BASIS THAT A.O HAD RIGHTLY MADE THE ADDITION ON ACCOUNT OF DEFERMENT OF SALES TAX IN ABSENCE OF CE RTIFICATE OF ENTITLEMENT ISSUED BY COMMISSIONER OF SALES TAX. 3. THE CONTENTION OF THE LD. A.R. BEFORE US REMAINED THAT ALONG WITH APPLICATION U/S. 154 ADDRESSED TO THE A.O, THE ASSESSEE HAD NOT ITA . NO S.514 & 515/PN/2007 CHANDRABHAGA S.S.K. LTD.. A. YS.2000 - 01 & 2001 - 02 PAGE OF 3 2 ONLY FURNISHED THE CERTIFICATE OF ENTITLEMENT ISSUED BY THE COMMISSIONER OF SALES TAX DATED 18.11.2002 THAT THE ASSESSEE SOCIETY IS ENTITLED FOR DEFERMENT OF SALES TAX FROM 16.11.99 TO 15.11.2010, AS SUCH THE SOCIETY IS NOT REQUIRED TO MAKE THE PAYMENT OF SALES TAX TO THE SALES TAX DEPARTMENT, BUT HAD ALSO FURNI SHED THE DEPARTMENTAL CIRCULAR NO. 496 DATED 25 TH SEPTEMBER 1987 IN SUPPORT. THE LD. A.R. REFERRED THE COPY OF APPLICATION FILED ALONG WITH CERTIFICATE OF ENTITLEMENT UNDER SALES TAX LAW AND CIRCULAR ISSUED BY CBDT FILED BEFORE THE A.O. THE LD. A.R. PLA CED RELIANCE ON THE DECISION OF HONBLE JAMMU & KASHMIR HIGH COURT IN THE CASE OF SMT. SNEHLATHA JAIN V/S. CIT (2004), 140 TAXMAN 156 ( J&K). 4. THE LD. D .R., ON THE OTHER HAND, TRIED TO JUSTIFY FIRST APPELLATE ORDER IN UPHOLDING THE ACTION OF THE A.O. IN REJECTING THE SAID APPLICATION FOR RECTIFICATION U/S. 154 OF THE ACT. 5. CONSIDERING THE ABOVE SUBMISSION, WE ARE OF THE VIEW THAT WHEN THE ASSESSEE HAD FILED THE REQUISITE CERTIFICATE OF ENTITLEMENT ISSUED BY THE COMMISSIONER OF SALES TAX DATED 18.11 .2002 THAT THE ASSESSEE SOCIETY IS ENTITLED FOR DEFERMENT OF SALES TAX FROM 16.11 .1999 TO 15.11.2010 AND AS SUCH, THE SOCIETY IS NOT REQUIRED TO MAKE THE PAYMENT OF SALES TAX TO THE SALES TAX DEPARTMENT AND HENCE THE AMOUNT CANNOT BE DISALLOWED U/S. 43B O F THE INCOME TAX ACT 1961 AS PER CBDT CIRCULE NO. 496 DATED 25.9.1987, THE A.O SHOULD HAVE ENTERTAINED THE SAME TO MAKE JUST ASSESSMENT . WHILE DECIDING THE CASE OF SMT. SNEHLATHA JAIN V/S. CIT (SUPRA), THE HONBLE J & K HIGH COURT HAS BEEN PLE A SED TO OBSE RVE THAT WHEN THE SUBSTANTIVE LAW CONFERS A BENEFIT ON THE ASSESSEE UNDER A STATUTE, IT CANNOT BE TAKEN AWAY BY THE ADJUDICATORY AUTHORITY ON MERE TECHNICALITIES. UNDER ITA . NO S.514 & 515/PN/2007 CHANDRABHAGA S.S.K. LTD.. A. YS.2000 - 01 & 2001 - 02 PAGE OF 3 3 THESE CIRCUMSTANCES, WHILE SETTING ASIDE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE , WE REMAND THE MATTER TO THE FILE OF THE A.O WITH DIRECTION TO ALLOW THE APPLICATION FILED U/S. 154 DATED 29 TH SEPTEMBER 2005 AFTER VERIFICATION OF THE CORRECTNESS OF CERTIFICATE OF ENTITLEMENT UNDER SALES TAX LAW FILED BY THE ASSESSEE, IN SUPPORT OF BEN EFIT . THE GROUND IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 6. IN RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07 MARCH 2011. SD/ - SD/ - ( G.S. PANNU ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 7TH MARCH , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PP ELLA NT 2. THE RESPONDENT 3. THE CIT I V PUNE 4. THE CIT(A) - III, UNE 5. THE D.R. B BENCH, PUNE 6. GUARD FIL E BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE