Astt. Commissioner of Income Tax, Lucknow V. M/s Nathoo Ram Nityanand Timber Pvt. Ltd., Lucknow

ITA 66/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4793 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR A K SINGH
• Assessee Lawyers: K G BANSAL
• Keywords: Opportunity of being heard
• Section: 56(2)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.66/LKW/2015 ASSESSMENT YEAR:2010-11 A.C.I.T., CENTRAL CIRCLE-II, LUCKNOW. VS. M/S NATHOO RAM NITYANAND TIMBER PVT. LTD., RAMA DHEEN SINGH ROAD, DALIGANJ, LUCKNOW. PAN:AFCPG5573K (APPELLANT) (RESPONDENT) APPELLANT BY DR. A. K. SINGH, CIT, D.R. RESPONDENT BY SHRI K. G. BANSAL, C. A. DATE OF HEARING 07/01/2016 DATE OF PRONOUNCEMENT 15/01/2016 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORD ER OF LEARNED CIT(A)-III, LUCKNOW DATED 31/10/2014 FOR THE ASSESS MENT YEAR 2010-2011. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.50,40,000/- MADE BY THE A.O. ON ACCOUNT OF DIFFERENCE OF COST OF SHARES ACQUIRED BY THE ASSESS EE AND MARKET VALUE OF THE SHARES WITHOUT APPRECIATING THE FINDINGS MADE BY THE A.O. AS INDICATED IN THE STATE MENT OF FACTS ENCLOSED. 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF LEARNED CIT(A). HE ALSO SUBMITTED THE COPY OF TRIB UNAL ORDER RENDERED IN 2 THE CASE OF ACIT VS. M/S M. S. RICE INDUSTRIES PVT. LTD. IN I.T.A. NO.76 & 77/LKW/2015 DATED 23/06/2015. HE SUBMITTED THAT IN RESPECT OF DIFFERENCE IN COST OF SHARES ACQUIRED BY THE ASSESSEE AND MARK ET VALUE OF THESE SHARES FOR THE SAME COMPANY I.E. M/S GOEL INFRACON PVT. LTD., THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF CI T(A) IN THAT CASE WITH THE DIRECTION TO ADJUDICATE THE APPLICABILITY OF PROVIS IONS OF SECTION 69B AS AGAINST THE PROVISION OF SECTION 56(2)(VIIA) OF THE ACT INVOKED BY THE ASSESSING OFFICER IN THAT CASE. THEREAFTER, HE SUB MITTED THAT IN THE PRESENT CASE ALSO, THE ASSESSEE ACQUIRED 56,000 SHARES OF T HE SAME COMPANY I.E. M/S GOEL INFRACON PVT. LTD. AND THE ADDITION WAS MA DE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 56(2) (VIIA) OF THE ACT. HE SUBMITTED THAT AS PER THIS TRIBUNAL ORDER, SUBMITTE D BY HIM, SECTION 56(2)(VIIA) IS NOT APPLICABLE IN THE PRESENT CASE A ND REGARDING APPLICABILITY OF SECTION 69B, HE SUBMITTED THAT AS PER CONSEQUENT IAL ORDER PASSED BY LEARNED CIT(A) IN THE CASE OF M/S M. S. RICE INDUST RIES PVT. LTD. (SUPRA), IT WAS HELD BY HIM THAT THE PROVISIONS OF 69B ARE ALSO NOT APPLICABLE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ISSUE INVOLVED IN THE PRESENT CASE IS SQUARELY COVERED BY THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S M. S. RICE INDUSTRIES P VT. LTD. (SUPRA). IN THAT CASE, THE TRIBUNAL HAS HELD THAT THE PROVISION OF S ECTION 56(2)(VIIA) WOULD BE APPLICABLE WITH EFFECT FROM ASSESSMENT YEAR 2012 -13 AND NOT BEFORE THAT BUT THE TRIBUNAL HAS RESTORED THE MATTER TO TH E FILE OF CIT(A) WITH THE DIRECTION TO ADJUDICATE THE APPLICABILITY OF THE PR OVISIONS OF SECTION 69B OF THE ACT. THEREFORE, IN THE PRESENT CASE ALSO, WE D ECIDE THE ISSUE ON SIMILAR LINE AND RESTORE THE MATTER BACK TO THE FILE OF CIT (A) FOR A FRESH DECISION WITH THE DIRECTION TO ADJUDICATE THE APPLICABILITY OF PROVISIONS OF SECTION 69B TO THE IMPUGNED ADDITION. NEEDLESS TO SAY, THE CIT (A) SHOULD PASS 3 NECESSARY ORDER AS PER LAW AFTER AFFORDING REASONAB LE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. (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 MEM BER DATED:15/01/2016 *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