ACIt, Kollam V. Dr.B.A.Rajakrishnan, Kollam

ITA 568/COCH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64998 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: R KRISHNAN
• Keywords: Tax effect

Judgement Text

1 ITA NO.543&568/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO.543/COCH/2011 (ASSESSMENT YEAR 2008-09) DR B.A. RAJAKRISHNAN VS THE DY.CIT, CIR.1 KERALASABDAM WEEKLY KOLLAM LAKSHMINADA, KOLLAM 691 001 PAN : ACYPA3789L (APPELLANT) (RESPONDENT) I.T.A NO.568/COCH/2011 (ASSESSMENT YEAR 2008-09) A.C.I.T., CIR.1 VS DR B.A. RAJAKRISHNAN KOLLAM LAKSHMINADA, KOLLAM 601 001 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R KRISHNAN REVENUE BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 04-12-2012 DATE OF PRONOUNCEMENT : 04-12-2012 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEALS OF THE TAXPAYER AND THE REVENUE A RE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (A) DATED 25-07-2011. 2 ITA NO.543&568/COCH/2011 2. LET US FIRST TAKE THE TAXPAYERS APPEAL IN ITA N O.543/COCH/2011. THE FIRST GROUND IS WITH REGARD TO NON DEDUCTION OF TAX . SHRI R KRISHNAN, THE LD.REPRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT T HIS ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN THE TAXPAYERS OWN CASE FOR THE ASSESSMENT YEAR 2007-08 AND THIS TRIBUNAL FOUND THAT THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION THE NOTIFICATION NO.SO 17(E) DATED 12 -01-1977. ACCORDINGLY, THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASS ESSING OFFICER FOR RECONSIDERATION. 3. WE HEARD SMT. S VIJAYAPRABHA, THE LD.DR ALSO. 4. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 IN ITA NOS.497 & 555/COCH/2010 ORDER DATED 03-04-2012. AS RIGHTLY S UBMITTED BY THE LD.REPRESENTATIVE FOR THE TAXPAYER, THIS TRIBUNAL A FTER REFERRING TO THE CIRCULAR ISSUED BY THE CBDT IN NO.SO 17(E) DATED 12 -01-1977 REMANDED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FO R RECONSIDERATION. IN VIEW OF THE DECISION OF THE CO-ORDINATE BENCH OF THIS TR IBUNAL, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED IN THE 3 ITA NO.543&568/COCH/2011 LIGHT OF THE CIRCULAR ISSUED BY THE CBDT CITED SUPR A. ACCORDINGLY, THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF T HE CIRCULAR ISSUED BY THE CBDT IN NO.SO 17(E) DATED 12-01-1977 AND WILL THERE AFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPO RTUNITY OF HEARING TO THE TAXPAYER. 5. NOW COMING TO THE DEPARTMENTAL APPEAL, THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDITION OF RS.23,10,661 BEING THE COST OF UNSOLD COPIES. THE LD.DR SUBMITTED THAT FOR THE ASSESSMENT YEAR 20 07-08 THIS TRIBUNAL BY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH FOR TH E ASSESSMENT YEAR 2003- 04 ALLOWED THE CLAIM OF THE TAXPAYER. HOWEVER, ACC ORDING TO THE LD.REPRESENTATIVE, BECAUSE OF THE TAX EFFECT, THE D EPARTMENT COULD NOT FILE APPEAL BEFORE THE HIGH COURT. THE LD.REPRESENTATIV E FURTHER SUBMITTED THAT BY DELETING THE ADDITION MADE ON ACCOUNT OF UNSOLD COPIES, THERE WOULD BE A DOUBLE DEDUCTION. THEREFORE, THIS TRIBUNAL NEEDS TO RECONSIDER THE ISSUE IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. 4 ITA NO.543&568/COCH/2011 6. WE HEARD, SHRI R KRISHNAN, THE LD.REPRESENTATIVE FOR THE TAXPAYER ALSO. 7. ADMITTEDLY, THIS ISSUE WAS CONSIDERED BY THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.349(COCH/2006 ORDER DATED 2 0-08-2007 FOR THE ASSESSMENT YEAR 2003-04. THIS ORDER OF THE TRIBUNA L WAS FOLLOWED BY ANOTHER BENCH FOR ASSESSMENT YEAR 2007-08. THE CON TENTION OF THE ASSESSING OFFICER THAT DELETING THE ADDITION IN RES PECT OF UNSOLD COPIES WOULD AMOUNT TO DOUBLE DEDUCTION WAS CONSIDERED BY THIS TRIBUNAL FOR ASSESSMENT YEAR 2003-04. ON IDENTICAL ISSUE THE CO -ORDINATE BENCH OF THIS TRIBUNAL FOUND THAT THE COST OF THE UNSOLD MAGAZINE HAS TO BE ALLOWED AS DEDUCTION WHILE COMPUTING THE TAXABLE INCOME. SINC E THE FACTS ARE IDENTICAL FOR ASSESSMENT YEARS 2003-04 AND 2007-08, THIS TRIBUNAL DO NOT FIND ANY REASON TO TAKE A DIFFERENT VIEW FOR THE AS SESSMENT YEAR UNDER CONSIDERATION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IS BINDIN G ON THE SUBSEQUENT BENCH. IT IS OPEN TO THE DEPARTMENT TO TAKE UP THE MATTER BEFORE THE HIGH COURT IN CASE THE DEPARTMENT FELT AGGRIEVED. THERE FORE, BY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL, WE DO NOT FIND ANY 5 ITA NO.543&568/COCH/2011 INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACC ORDINGLY, THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) ON THIS ISSUE IS CONF IRMED. 8. IN THE RESULT, THE APPEAL OF THE TAXPAYER IS ALL OWED FOR STATISTICAL PURPOSE AND THE APPEAL OF THE DEPARTMENT IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04 TH DAY OF DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 04 TH DECEMBER, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH