Nilkanth Specific Family Trust, Mehsana V. The Jt. CIT, Mehsana Range, Mehsana

ITA 589/AHD/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7880 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 16-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Depreciation
• Section: 143(3); 28

Judgement Text

ITA NOS.589/AHD/2015 & 2414/AHD/2016 ASSESSMENT YEARS: 2010-11 & 2012-13 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM] ITA NO.589/AHD/2015 ASSESSMENT YEAR: 2010-11 NILKANTH SPECIFIC FAMILY TRUST, ... ............... APPELLANT PROP. OF KARAN PAPER MILLS, 1074/B, 1075 TO 1078, KADI KALOL ROAD, CHHATRAL, DIST. MEHSANA. [PAN: AAATN 1399 K] VS. JT. COMMISSIONER OF INCOME TAX, MEHSANA RANGE, MEHSANA. ....................... RESPONDENT ITA NO.2414/AHD/2016 ASSESSMENT YEAR: 2012-13 NILKANTH SPECIFIC FAMILY TRUST, ... ............... APPELLANT PROP. OF KARAN PAPER MILLS, 1074/B, 1075 TO 1078, KADI KALOL ROAD, CHHATRAL, DIST. MEHSANA. [PAN: AAATN 1399 K] VS. INCOME TAX OFFICER, WARD 2, MEHSANA. .............................. RESPONDENT APPEARANCES BY HIMANSHU SHAH FOR THE APPELLANT V.K. SINGH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 20.06.2018 DATE OF PRONOUNCING THE ORDER : 18.09.2018 O R D E R 1. BY WAY OF THESE APPEALS, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDERS DATED 19.12.2014 & 16.08.2016, PASSED BY THE LEARNED CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TA X ACT, 1961, FOR THE ASSESSMENT YEARS 2010-11 & 2012-13 RESPECTIVELY. ITA NOS.589/AHD/2015 & 2414/AHD/2016 ASSESSMENT YEARS: 2010-11 & 2012-13 PAGE 2 OF 4 2. FIRST I TAKE UP ITA NO.589/AHD/2015 FOR THE ASSE SSMENT YEAR 2010-11. IN THIS APPEAL, THE GRIEVANCES RAISED BY THE ASSESSEE APPEL LANT ARE AS FOLLOWS :- 1) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN POINTS OF LAW A ND FACTS. 2) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF RS.14,126/- U/S.14A OF INCOME-TAX ACT. 3) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF DEPRECIATION CLAIMED ON FACTORY BUILDING FOR RS.85, 127/-. 4) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF INSURANCE EXPENSES OF RS.94,000/-. 5) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF RS.16,74,764/- AGAINST MACHINERY & ELECTRIC REPAIRI NG EXPENSES. 6) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF RS.1,73,193/- OUT OF VEHICLE EXPENSES. 7) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF BUILDING MAINTENANCE EXPENSES RS.3,25,691/- AS CAPITAL EXPEN DITURE. 8) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF RS.1,00,000/- OUT OF OFFICE EXPENSES. 9) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF RS.41,778/- OUT OF OFFICE EXPENSES. 10) IN LAW AND IN FACTS AND CIRCUMSTANCES OF T HE APPELLANT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN REJECTING APPEL LANT'S GROUND REGARDING CHARGING OF INTEREST U/S.234D OF INCOME-TAX ACT. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, IT HAS BEEN NOTICED THAT THE ORDER DATED 19.12.2014 PASSED BY THE LEARNED CIT(A) IS AN EX-PARTE ORDER AND THAT THE APPELLANT COULD NOT ATTEND THE PROCEEDINGS BEFORE T HE LEARNED CIT(A). THE IMPUGNED ORDER IS THUS PASSED WITHOUT THE BENEFIT OF ASSISTA NCE BY THE ASSESSEE APPELLANT AND THE ASSESSEE APPELLANT IS NOW IN APPEAL BEFORE US. ITA NOS.589/AHD/2015 & 2414/AHD/2016 ASSESSMENT YEARS: 2010-11 & 2012-13 PAGE 3 OF 4 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT, G IVEN AN OPPORTUNITY NOW, HE UNDERTAKES TO FULLY CO-OPERATE IN EXPEDITIOUS DISPO SAL OF THE APPEAL ON MERITS AND THUS HE URGES TO REMIT THE MATTER TO THE FILE OF LEARNED CIT(A) FOR ADJUDICATION DE NOVO , AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE AS SESSEE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY A GREED THAT HE HAS NO OBJECTION TO THE MATTER BEING REMITTED TO THE FILE OF LEARNED CIT(A) FOR ADJUDICATION DE NOVO , AFTER GIVING YET ANOTHER REASONABLE OPPORTUNITY OF HEARIN G TO THE ASSESSEE. 6. IN THIS VIEW OF THE MATTER AND BEARING IN MIND E NTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF LEARN ED CIT(A) FOR FRESH ADJUDICATION AND THE ASSESSEE APPELLANT BE GIVEN A REASONABLE OPPORTUNIT Y OF HEARING, IN ACCORDANCE WITH LAW. WE ORDER SO. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 8. NOW I TAKE UP ITA NO.2414/AHD/2016 FOR THE ASSES SMENT YEAR 2012-13. IN THIS APPEAL, THE ASSESSEE APPELLANT HAS RAISED THE FOLLO WING GRIEVANCES : 1. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN POINTS OF LAW A ND FACTS. 2. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING DISA LLOWANCE OF LATE PAYMENTS TOWARDS EMPLOYEES CONTRIBUTION TO PF AND E SIC OF RS.94,769/-. 3. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONSIDERING THE LOSS AS PER COMPUTATION OF TOTAL INCOME AT RS.16,39,721/- 9. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE A FORESAID ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION, 366 I TR 170 (GUJ.), WHEREIN IT IS CATEGORICALLY HELD THAT IN THE CASE OF DELAYED DEPO SIT OF EMPLOYEES CONTRIBUTION TO PF/ESI, THE SAME WILL NOT BE DEDUCTABLE IN COMPUTIN G INCOME UNDER SECTION 28 OF THE ACT. THE LAW SO LAID DOWN BY THE HONBLE JURISDICTI ONAL HIGH COURT IS BINDING ON US. THE ITA NOS.589/AHD/2015 & 2414/AHD/2016 ASSESSMENT YEARS: 2010-11 & 2012-13 PAGE 4 OF 4 MERE FACT THAT AN APPEAL AGAINST THE SAID DECISION IS PENDING BEFORE THE HONBLE SUPREME COURT DOES NOT DILUTE BINDING NATURE OF THI S JUDICIAL PRECEDENT. AS REGARDS DISMISSAL OF SLP IN THE CASE OF RAJASTHAN STATE BEV ERAGES CORPORATION LTD (SUPRA), IT IS ONLY ELEMENTARY THAT WHEN A SLP IS DISMISSED BY A N ON-SPEAKING ORDER, IT DOES NOT CONSTITUTE A LAW DECLARED BY HONBLE SUPREME COURT, AND AS SUCH, IT IS NOT BINDING UNDER ARTICLE 141 OF THE CONSTITUTION OF INDIA. THE AUTH ORITY, FOR THIS PROPOSITION, IS CONTAINED IN A SERIES OF JUDGMENTS OF HONBLE SUPREME COURT, INC LUDING, INTER ALIA, IN THE CASES OF STATE OF MANIPUR VS. THINGUJAM BROJEN MEETAI, (1996 ) 9 SCC 29; OM PRAKASH GARGI V. STATE OF PUNJAB, (1996) 11 SCC 399 AND SUN EXPORT C ORPN. V. COLLECTOR OF CUSTOMS, AIR 1997 SC 2658. WE, THEREFORE, SEE NO LEGALLY SUSTAINABLE MERIT IN THE CASE OF THE ASSESSEE AND, RESPECTFULLY FOLLOWING THE JUDGMENT O F HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATIO N (SUPRA), DISMISS THE GRIEVANCE OF THE ASSESSEE. 10. IN THE RESULT, APPEAL IS DISMISSED. 11. IN THE RESULT, ITA NO.589/AHD/2015 FOR ASSESSME NT YEAR 2010-11 IS ALLOWED FOR STATISTICAL PURPOSES AND ITA NO.2414/AHD/2016 FOR A SSESSMENT YEAR 2012-13 IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON T HE 18 TH SEPTEMBER, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: AHMEDABAD, THE 18 TH DAY OF SEPTEMBER, 2018. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD