Orissa Forest Development Corporation Limited, Bhubaneswar V. Principal CIT-1, Bhubaneswar

ITA 59/CTK/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9788 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 16-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Orissa Forest Development Corporation Limited, A/84, Kharvela Nagar, Bhubaneswar. PAN/GIR No. (Appellant Per Bench This is an appeal filed by the assessee a Bhubaneswar- assessment year 2. Shri B.K.Mahapatra, ld AR appeared for the assessee and Shri M.K.Gautam, ld CIT DR appeared for the revenue. 3. It was submitted by ld A.R. of the assessed that the Pr. CIT, Bhubaneswar- had already been considered by the Assessing Officer and which was also IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA No. 59 /CTK/2021 Assessment Year : 2016-17 Orissa Forest Development Corporation Limited, A/84, Kharvela Nagar, Bhubaneswar. Vs. Pr. CIT, Bhubaneswar No.AAACO 2573 M (Appellant) .. ( Respondent Assessee by : Shri B.K.Mahapatra, Revenue by : Shri M.K.Gautam, Date of Hearing : 07/6/ 20 Date of Pronouncement : 07 / O R D E R This is an appeal filed by the assessee against the passed Pr. CIT -1dated 11.3.2021 passed u/s.263 of the Act assessment year 2016-17. Shri B.K.Mahapatra, ld AR appeared for the assessee and Shri M.K.Gautam, ld CIT DR appeared for the revenue. It was submitted by ld A.R. of the assessed that the Pr. CIT, -1 has made adjustment to the prior period expenses, which had already been considered by the Assessing Officer and which was also Page1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER Pr. CIT, Bhubaneswar-1 Respondent) Shri B.K.Mahapatra, AR CIT (DR) / 2022 /6/2022 gainst the passed Pr. CIT, 1dated 11.3.2021 passed u/s.263 of the Act for the Shri B.K.Mahapatra, ld AR appeared for the assessee and Shri It was submitted by ld A.R. of the assessed that the Pr. CIT, 1 has made adjustment to the prior period expenses, which had already been considered by the Assessing Officer and which was also ITA No. 59 /CTK/2021 Assessment Year : 2016-17 Page2 | 5 the subject matter of appeal before the ld CIT(A). It was the submission that the Assessing Officer, in the course of original assessment proceedings, had made addition of Rs.3,12,09,792/- in the form of disallowance of prior period expenses. It was the submission that the Pr. CIT had proposed to enhance the same to Rs.6,29,79,923/- by including accumulated depreciation in respect of earlier assessment years. It was the submission that the issue of prior period expenses itself wasalready in appeal before the Tribunal and the Pr. CIT after proposing this addition, further goes on to say in para 7.4 that “ since the issue is already in appeal, he does not propose to go into the merit of the disallowance, which constitute a matter to be adjudicated by the appellate authority”. It was the submission that it has been admitted by the Pr. CIT that the issue constitutes the matter to be adjudicated by the appellate authority. It was the submission that thus it is a clear admission that the issue is a debatable issue. It was the submission that the Co-ordinate Bench of this Tribunal in assessee’s own case in ITA No.49/CTK/2008 for the A.Y. 1991-92 order dated 12.6.2009 had following the decision of the Co-ordinate Bench in assessee’s own case for the assessment years 1988-89 & 1989-90, deleted the disallowance made under the head “prior period expenses” after giving specific direction. It was the submission that as the issue itself a debatable issue, the provisions of section 263 for the purpose of revision do not apply in the case of the assessee, of the issues for which the Pr. CIT has sought to revise. ITA No. 59 /CTK/2021 Assessment Year : 2016-17 Page3 | 5 4. In reply, ld CIT DR vehemently supported the order of the Pr. CIT. It was the submission that the each assessment year is separate assessment year and that just because the issue has been decided in earlier year in favour of the assessee, it cannot be said that it is a law precedent for every year. It was the submission that the facts need to be verified. It was the submission that the issue was pending before the ld CIT(A) and the powers of the Pr. CIT for revision u/s.263 of the Act would be curtailed on the issue only if the ld CIT(A) had passed an order. During the pendency of the appeal before the ld CIT(A), the powers of the Pr. CIT to invoke the revision would not curtail. Ld CIT DR relied on the decision of the Co-ordinate Benches of the Kolkata Tribunal in the case of J.K.Tyre & Industries Ltd vs CIT (2012) 19 TAXMANN.COM 277 (Kol). 5. We have considered the rival submissions. At the outset, it is admitted by Pr. CIT that he is not going into the merits of the addition as the issue constitute a matter to be adjudicated by the appellate authority. Thus, it is clearly shows that the issue is a debatable issue and it is recognized by the Pr. CIT. On a debatable issue, admittedly, revision u/s.263 of the Act is not permissible. This being so, as the issue, as proposed by the pr. CIT, is a debatable issue, and as admitted by Pr. CIT in the impugned order, the order passed u/s.263 stands quashed. ITA No. 59 /CTK/2021 Assessment Year : 2016-17 Page4 | 5 6. In the result, appeal of the assessee is allowed. Order dictated and pronounced in the open court on 7 /6/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 7 /06/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack Date Initial 1. Draft dictated on Sr.PS 2. Draft placed before author Sr.PS 3. Draft proposed & placed before the second member AM 4. Draft discussed/approved by Second Member. AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/P S 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the OS 9. Date on which file goes to the SPS 10. Date of dispatch of Order. 1. The Appellant : Orissa Forest Development Corporation Limited, A/84, Kharvela Nagar, Bhubaneswar 2. The Respondent. Pr. CIT, Bhubaneswar-1 3. The CIT(A)-, Bhubaneswar 4. DR, ITAT, Cuttack 5. Guard file. //True Copy// ITA No. 59 /CTK/2021 Assessment Year : 2016-17 Page5 | 5