ACIT III, Kanpur V. M/s Hari Dayal Hari Kishan, Kanpur

ITA 606/LKW/2011

• Counselvise Citation: 60623714 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-06-2014
• Assessment Year: misc
• Appeal Filed On: 10-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Section: 10(10D)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.606/LKW/2011 ASSESSMENT YEAR:2008 - 09 A.C.I.T. - II, KANPUR. VS. M/S DEVI DAYAL HARI KISHAN, 90/242, IFTIKHARABAD, KANPUR. PAN:AABFD4752C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 1 3 /0 6 /2014 DATE OF PRONOUNCEMENT 0 4 /07/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - II, KANPUR DATED 08/07/2011 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.38,04,603/ - , MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PREMIUM PAID BY THE FIRM IN RESPECT OF KEYMAN INSURANCE POLICY ON THE LIVES OF THE PARTNERS, WITHOUT APPRECIATING THE FACTS AND MATERIALS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THE LD COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS FAILED TO APPRECIATE THAT THE PARTNERS CANNOT 2 BE TERMED AS ANOTHER PERSON WITHIN THE MEANING OF SECTION 10(10D) OF THE INCOME TA X ACT, 1961. 3. THE LD COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS FAILED TO APPRECIATE THAT 'KEYMAN' HAS TO BE PERSON VERY IMPORTANT TO THE ASSESSEE WHOSE PREMATURE DEATH CAN CAUSE IRREPARABLE LOSS TO THE ASSESSEE TILL A NEW 'KEYMAN' IS BUILT OR F OUND. 4. THE LD COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS FAILED TO APPRECIATE THAT THE UNDER THE INDIAN PARTNERSHIP ACT, 1932 A PARTNERSHIP FIRM IS NOT A DISTINCT LEGAL ENTITY APART FROM ITS PARTNERS CONSTITUTING IT. 5. THAT THE ORDER OF THE LD. CIT (A) - II, KANPUR DATED 08.07.2011 NEEDS TO BE QUASHED AND THE ORDER DATED 28.12.2010 PASSED BY THE ASSESSING OFFICER BE RESTORED. 6. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND/OR TO ADD ANY FRESH GROUN DS AS AND WHEN IT IS REQUIRED TO DO SO. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION RENDERED IN THE C ASE OF INCOME TAX OFFICER VS. RELIANCE EXPORTS IN I.T.A. NO.356 & 357/LKW/2013 DATED 10/09/2013. HE SUBMITTED A COPY OF THIS TRIBUNAL DECISION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE CASE OF RELIANCE EXPORTS (SUPRA), THE TRIBUN AL HAS FOLLOWED ANOTHER TRIBUNAL DECISION IN RESPECT OF THAT VERY ASSESSEE IN THE PRECEDING ASSESSMENT YEAR. THE TRIBUNAL HAS FOLLOWED THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. B.N. EXPORTS. NO DIFFERENCE IN FACTS WAS POINTED OUT B Y LEARNED D.R. OF THE REVENUE. HENCE, WE DO NOT FIND ANY REASON TO TAKE A 3 CONTRARY VIEW. HENCE, RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION CITED BY LEARNED A.R. OF THE ASSESSEE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 4 /0 7 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR