ACIT, Jaipur V. MODERN THREADS (INDIA) LIMITED, Jaipur

ITA 729/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5059 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 29-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MADHUKAR GARG
• Keywords: Depreciation; Non compliance
• Section: 143(3); 145

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 729 & 730/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2010-11 AND 2011-12 A.C.I.T., CIRCLE-6, JAIPUR. CUKE VS. M/S MODERN THREADS (INDIA) LIMITED, A-4, VIJAY PATH, TILAK NAGAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCM 1850 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA JHA (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MADHUKAR GARG (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/10/2016 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 07/10/2016 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THESE ARE THE APPEALS FILED BY THE REVENUE ARISE AG AINST THE ORDER DATED 26/05/2016 PASSED BY THE LD. CIT(A)-5, JAIPUR FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12. THE EFFECTIVE GROUNDS OF THE REVENUES APPEAL FOR THE A.Y. 2010-11 IS AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD CIT(A) WAS JUSTIFIED IN DELETING TH E ADDITION OF RS. 1,75,35,199/- MADE BY THE A.O. ON A CCOUNT OF REMISSION OF LIABILITY U/S 41(1) OF THE INCOME TA X ACT, 1961. ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 2 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN DELETING THE A DDITION OF RS. 25,71,000/- MADE BY THE A.O. ON ACCOUNT OF E XCISE DUTY LIABILITY. SIMILAR IDENTICAL GROUNDS HAS ALSO BEEN TAKEN BY TH E REVENUE FOR THE ASSESSMENT YEAR 2011-12. 2. BOTH THE APPEALS ARE BEING HEARD TOGETHER AND FO R THE SAKE OF CONVENIENCE, CONSOLIDATED ORDER IS BEING PASSED IN ITA NO. 729/JP/2016. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A DOMESTIC COMPANY AND DERIVED INCOME FROM BUSINESS OF MANUFAC TURING OF POLYESTER, VISCOSE, BLENDED, WOOLEN, WORSTED YARN AND WOOL TOPS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y. 20 10-11 ON 27/09/2011 DECLARING NIL INCOME. THE CASE OF THE ASSESSEE WAS PI CKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) WAS FR AMED VIDE ORDER DATED 06/03/2013. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF REMISSION OF LIABILITY OF RS. 1,75,35,199/- AND VALUATION OF CLOSING STOCK AT RS. 25,71,000/-. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 145A OF THE ACT A ND INCLUDED THE VALUE OF EXCISE DUTY IN THE CLOSING STOCK AND MADE ADDITION ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 3 OF RS. 25,71,000/- FOR NON COMPLIANCE OF PROVISIONS OF SECTION 145A OF THE ACT. 4. THE FIRST GROUND OF REVENUES APPEAL IS AGAINST D ELETION OF ADDITION OF RS. 1,75,35,199/- AS MADE BY THE ASSESS ING OFFICER ON ACCOUNT OF REMISSION OF LIABILITY. 5. THE LD CIT(A), WHO AFTER CONSIDERING THE SUBMISSIO NS MADE BY BOTH THE PARTIES, ALLOWED THE APPEAL BY FOLLOWING THE DECISION OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR PASSED IN THE ASS ESSEES OWN CASE FOR THE A.Y. 2009-10 IN ITA NO. 671/JP/2014 DATED 2 2/01/2016. 6. NOW THE REVENUES IS IN APPEAL BEFORE US. THE LD C IT DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. HOWEVER, HE FAIRLY CONCEDED THAT THE ISSUE UNDER CONSIDERATION IS COVERED AGAINST THE REVENUE BY THE DECISION OF THE HONBLE ITAT, JAI PUR BENCH DECISION IN ASSESSEES OWN CASE FOR THE A.Y. 2009-10 PASSED IN ITA NO. 671/JP/2014. 7. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REI TERATED THE SUBMISSIONS MADE IN THE WRITTEN SUBMISSIONS. THE CONT ENTS OF THE WRITTEN SUBMISSIONS ARE AS UNDER:- ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 4 THE FIRST GROUND OF APPEAL IN DEPARTMENTAL APPEAL HA S BEEN TAKEN AGAINST THE ACTION OF LEARNED CIT(APPEALS) IN DELET ING THE ADDITION OF RS. 1,75,35,199/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF REMISSION OF LIABILITY U/S 41(1) OF THE ACT. FACTS IN THIS CASE ARE THAT THE ASSESSEE HAD SHOWN A SUM OF RS. 1,75,35,199/- UNDER THE HEAD EXCEPTIONAL ITEMS AND IT WAS EXPLAINED THAT THE SAME WAS REMISSION OF THE PRINCIP AL LOAN AMOUNT AND HENCE WAS NOT TAXABLE. THE ASSESSING OFFI CER HAS REPRODUCED THE REPLY OF THE ASSESSEE AND RELYING ON CERTAIN CASES HAS TREATED THE SAID AMOUNT AS INCOME OF THE ASSESS EE. THE ASSESSING OFFICER HAD NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND RELYING ON THE DECISION OF HONBLE SUP REME COURT IN THE CASE OF CIT VS. SUNDARAM IYENGAR REPORTED IN 222 ITR 344 HE HELD THAT THE ASSESSEE HAS BECOME RICHER BECAUSE TH E BANKS AND FINANCIAL INSTITUTIONS HAVE WRITTEN OFF THE AMOUNTS IN THEIR BOOKS AND ASSESSEE HAS ALSO WRITTEN BACK THE SAID AMOUNTS IN ITS BOOKS, HE HAS THEREFORE, ADDED THE SAID AMOUNT OF RS.1,75, 35,199/- TO THE INCOME OF THE ASSESSEE. THE ASSESSEE HAD FILED APPEAL BEFORE THE LEARNED CIT( APPEALS) AND RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS:- MAHINDRA & MAHINDRA LTD. VS. CIT REPORTED IN 261 ITR 501 (BOM) POLYFLEX (INDIA) PVT. LTD. VS. CIT REPORTED IN 257 I TR 343 (SC) NECTAR BEVERAGES (P) LTD. VS. DCIT REPORTED IN 314 I TR 314 (SC) ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 5 CIT VS. TOSHA INTERNATIONAL REPORTED IN 331 ITR 440 (D EL) AND CERTAIN OTHER CASES. IT WAS ALSO BROUGHT TO THE KNOWLEDGE OF THE LEARNED C IT(APPEALS) THAT THIS MATTER HAS BEEN CONSIDERED BY THE HONBLE ITAT, JAIPUR BENCH, JAIPUR IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2009- 10 IN ITA NO.622/JP/2014 AND VIDE ORDER DATED 22.1. 2016 THE HONBLE ITAT, JAIPUR BENCH HAS DELETED THE ADDITION. THE LEARNED CIT(APPEALS) RELYING ON THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH IN ASSESSEES OWN CASE FOR ASSESS MENT YEAR 2009-10 HAD DELETED THE ADDITION. THUS, THIS ISSUE I S COVERED IN FAVOUR OF THE ASSESSEE BY THE HONBLE ITAT, JAIPUR B ENCHS DECISION AND HENCE, THE ORDER PASSED BY THE LEARNED CIT(APPEALS) DESERVES TO BE SUSTAINED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW. WE FIND THAT THE CO ORDINATE BENCH IN ASSESSEES OWN CASE HAS DECIDED THE ISSUE UNDER CONS IDERATION IN FAVOUR OF THE ASSESSEE. THE FINDING OF THE COORDINAT E BENCH IS AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE AS SESSEE COMPANY IS MANUFACTURING OF WOOLEN YARN AND OTHER WOO L ITEMS AND TAKEN LOAN FROM BANK AND FINANCIAL INSTIT UTIONS. ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 6 THE ASSESSEE COMPANY HAD BECOME SICK COMPANY AND BEFORE BIFR THE BANKS/FINANCIAL INSTITUTIONS HAD SE TTLED ITS OUTSTANDING LOAN WHEREBY THE PRINCIPAL LOAN AMOUNT O F RS. 29,40,94,000/- WAS WRITTEN BACK. THE LOAN WAS TAKEN LO NG TIME BACK FOR INSTALLING PLANT AND MACHINERY AND SA ME WAS ON ACCOUNT OF CAPITAL ACCOUNT. THE CASE LAWS REFERRED BY THE LD CIT(A) I.E. DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SUNDARAM IYENGAR (T.V.) AND SONS LTD. (SUPRA) IS NOT SQUARELY APPLICATION AS WHEREIN THE A SSESSEE GOT THE BENEFIT OF DEPRECIATION AND ON THE OTHER HA ND REMISSION OF THE PRINCIPAL, WHICH IS COVERED U/S 28( IV) OF THE ACT. AS PER SECTION 28(IV) THE VALUE OF ANY BEN EFIT OR PREREQUISITE WHETHER CONVERTED INTO MONEY OR NOT ARI SING FROM BUSINESS OR THE EXERCISE OF THE PROFESSION CAN BE TAXED. EVEN THE HON'BLE SUPREME COURT IN THE CASE O F NECTAR BEVERAGES PVT. LTD. VS. DCIT (SUPRA) HAS HELD THAT DEPRECIATION IS NEITHER A LOSS NOR AN EXPENDITURE N OR A TRADING LIABILITY, THEREFORE, SETTLEMENT OF PRINCIP AL AMOUNT BY THE BANK/FINANCIAL INSTITUTION CANNOT BE ASSESSE D U/S 41(1) OF THE ACT. THE OTHER CASE LAWS REFERRED BY THE AR PARTICULARLY THE DECISION IN THE CASE OF MAHINDRA & MAHINDRA LTD. VS. CIT (SUPRA) AND CIT VS. TOSHA INTERNATIONAL LTD. (SUPRA) AND OTHERS ARE SQUARELY APPLICABLE. THEREFORE, WE DELETE THE ADDITION CONFIRM ED BY THE LD CIT(A). THE ASSESSEES APPEAL ON THIS GROUND IS ALLOWED. ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 7 THE REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY CONTRA RY JUDGMENT OF THE JURISDICTIONAL HIGH COURT, THEREFORE, TAKING A CONSISTENT VIEW, WE DO NOT SEE ANY REASON TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A). THEREFORE, THE ORDER OF THE LD. CIT(A) ON THIS GROUND IS HEREBY AFFIRMED AND THE GROUND NO. 1 OF THE REVENUES APPEAL IS DIS MISSED. 9. THE 2 ND GROUND OF THE REVENUES APPEAL IS AGAINST DELETING THE ADDITION OF RS. 25,71,000/- MADE BY THE ASSESSING O FFICER ON ACCOUNT OF EXCISE DUTY LIABILITY BY INVOKING THE PROVISIONS OF SECTION 145A OF THE ACT. THE LD CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS MADE BY BOTH THE PARTIES, ALLOWED THE APPEAL BY FOLLOWING THE DECISION OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR PASSED IN THE ASS ESSEES OWN CASE FOR THE A.Y. 2009-10 IN ITA NO. 671/JP/2014 DATED 2 2/01/2016. 10. NOW THE REVENUES IS IN APPEAL BEFORE US. THE LD CIT DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER. HOWEVER, HE FAIRLY CONCEDED THAT THE ISSUE UNDER CONSIDERATION AGAINST THE REVENUE IS COVERED BY THE DECISION OF THE HONBLE ITAT, JAIP UR BENCH DECISION IN ASSESSEES OWN CASE FOR THE A.Y. 2009-10 PASSED IN I TA NO. 671/JP/2014. ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 8 11. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS RE ITERATED THE SUBMISSIONS MADE IN THE WRITTEN SUBMISSIONS. THE CONT ENTS OF THE WRITTEN SUBMISSIONS ARE AS UNDER:- GROUND NO.2 OF APPEAL HAS BEEN TAKEN AS TO WHETHER THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.25,71,0 00/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF EXCISE DUTY LIA BILITY. THE LEARNED ASSESSING OFFICER HAS DISCUSSED THE MATT ER ON PAGES 6-8 OF THE ORDER AND HE HELD THAT THE EXCISE DUTY B ECOMES PAYABLE ON COMPLETION OF MANUFACTURE ALTHOUGH THE G OODS LAY UNCLEARED IN THE WAREHOUSE. BEFORE THE LEARNED CIT(APPEALS) THE ASSESSEE HAD PO INTED OUT THAT SECTION 4 OF THE CENTRAL EXCISE ACT, 1944 PROV IDES THAT THE EXCISE DUTY IS CHARGEABLE ON EXCISABLE GOODS AT THE TIME OF REMOVAL OF THE GOODS. THE GOODS CAN BE SAID TO BE RE MOVED FROM THE FACTORY OR ANY OTHER PLACE OR PREMISES OF PRODUCTION OR MANUFACTURING OR WAREHOUSE WHEREIN EXCISABLE GOODS HA VE BEEN PERMITTED TO BE DEPOSITED WITHOUT PAYMENT OF DUTY. TH E EXCISE DUTY IS PAYABLE AT THE TIME OF REMOVAL OF GOODS. RU LE 49 OF CENTRAL EXCISE ACT, 1944 ALSO PROVIDES THAT EXCISE DUTY IS CHARGEABLE ONLY ON REMOVAL OF GOODS FROM THE FACTOR Y PREMISES OR FROM APPROVED PLACE OF STORE. THUS, ON A COMBINED READING OF SECTION 4 AND RULE 49 THE EXCISABLE GOODS ARE CHARG EABLE WHEN THE SAME ARE REMOVED FOR SALE FROM THE FACTORY PREM ISES BUT WHEN AFTER MANUFACTURING THE GOODS ARE KEPT IN WAREHO USE THE ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 9 EXCISE DUTY WOULD BE PAYABLE ONLY WHEN THE GOODS ARE REMOVED FROM SUCH WAREHOUSE. THIS MATTER WAS CONSIDERED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. LOKNETE BALASAHEB DESAI S.S.K. L TD., REPORTED IN 339 ITR 288. IN THE SAID CASE IT WAS HELD THAT THE EXPRESSION INCURRED BY THE ASSESSEE IN SECTION 14 5A(B) IS FOLLOWED BY THE WORDS TO BRING THE GOODS TO THE PLAC E OF ITS LOCATION AS ON THE DATE OF VALUATION. THUS, THE EXP RESSION INCURRED BY THE ASSESSEE RELATES TO THE LIABILITY DETERMINED AS TAX, DUTY CESS OR FEE PAYABLE IN BRINGING THE GOODS TO THE PLACE OF ITS LOCATION AND CONDITION OF THE GOODS. EXPLANA TION TO SECTION 145A(B) MAKES IT FURTHER CLEAR THAT THE INCOME CHAR GEABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS SHALL BE A DJUSTED BY THE AMOUNT PAID AS TAX, DUTY, CESS OR FEE. THEREFORE, T HE EXPRESSION INCURRED IN SECTION 145A(B) MUST BE CONSTRUED TO MEAN THE LIABILITY ACTUALLY INCURRED BY ASSESSEE. THEREFORE, THOUGH THE DATE OF MANUFACTURE IS THE RELEVANT DATE FOR DUTIABILITY , THE RELEVANT DATE FOR THE DUTY LIABILITY IS THE DATE ON WHICH THE GOODS ARE CLEARED. IN OTHER WORDS, IN RESPECT OF EXCISABLE GOODS MANUFA CTURED AND LYING IN STOCK, THE EXCISE DUTY LIABILITY WOULD GET CRYSTALLIZED ON THE DATE OF CLEARANCE OF GOODS AND NOT ON THE DATE OF MANUFACTURE. THE APEX COURT IN THE CASE OF COLLECTOR OF CENTRAL E XCISE V. POLYSET CORPN. 2000(115) ELT 41 HAS HELD THAT THE DU TIABILITY OF ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 10 EXCISABLE GOODS IS DETERMINED WITH REFERENCE TO THE DATE OF MANUFACTURE AND THE RATE OF EXCISE DUTY PAYABLE HAS TO BE DETERMINED WITH REFERENCE TO THE DATE OF CLEARANCE O F GOODS. THEREFORE, TILL THE DATE OF CLEARANCE OF THE EXCISAB LE GOODS, THE EXCISE DUTY PAYABLE ON THE SAID GOODS DOES NOT GET CRYSTALLIZED AND, CONSEQUENTLY, THE ASSESSEE CANNOT BE SAID TO H AVE INCURRED THE EXCISE DUTY LIABILITY. IN RESPECT OF THE EXCISA BLE GOODS LYING IN STOCK, NO LIABILITY IS DETERMINED AS PAYABLE AND, C ONSEQUENTLY, THERE WOULD BE NO QUESTION OF INCURRING EXCISE DUTY LIABILITY. IN THE INSTANT CASE, IT WAS NOT IN DISPUTE THAT THE MANUFACTURED SUGAR WAS LYING IN STOCK AND THE SAME WAS NOT CLEARE D FROM THE FACTORY. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN HOLD ING THAT IN RESPECT OF UNSOLD SUGAR LYING IN STOCK, CENTRAL EXC ISE LIABILITY WAS NOT INCURRED AND, CONSEQUENTLY, THE ADDITION OF EXC ISE DUTY MADE BY THE ASSESSING OFFICER TO THE VALUE OF THE EXCISA BLE GOODS WAS LIABLE TO BE DELETED. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF ACIT VS . NARMADA CHEMATUR PETRO CHEMICAL LTD., REPORTED IN 327 ITR 3 69 HAS HELD THAT UNDER EXCISE LAW AN ASSESSEE IS LIABLE TO PAY E XCISE DUTY ONLY UPON BOTH THE EVENTS TAKING PLACE, VIZ. MANUFA CTURE OF EXCISABLE GOODS AND REMOVABLE OF EXCISABLE GOODS AN D FOR THE PURPOSE OF IT ACT POSITION OF LAW IS NOT DIFFERENT. IT WAS ALSO POINTED OUT THAT THIS MATTER WAS ALSO CON SIDERED BY THE ITAT, JAIPUR BENCH IN ASSESSEES OWN CASE FOR ASS ESSMENT YEAR 2009-10 AND IN PARA 10 IT HAD BEEN HELD THAT WH ERE THE ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 11 GOODS ARE LYING IN THE WAREHOUSE THE EXCISE DUTY IS PAYABLE AT THE TIME OF CLEARANCE OF GOODS FROM THE WAREHOUSE. T HEREFORE, NO ADJUSTMENT U/S 145A ON ACCOUNT OF EXCISE DUTY IS REQUIRED TO BE MADE AS PER LAW. THE LEARNED CIT(APPEALS) HAS GIVEN HIS FINDING IN PAR A 3.3 AND IT HAS BEEN MENTIONED BY HIM THAT THE ISSUE REGARDING ADDITION OF EXCISE DUTY LIABILITY U/S 145A HAS ALREADY BEEN DEC IDED IN FAVOUR OF THE ASSESSEE BY CIT(APPEALS)-LL, JAIPUR IN ASSESS MENT YEAR 2008-09 AS WELL AS ASSESSMENT YEAR 2009-10 AND THE D ECISION OF CIT(APPEALS)-LL, JAIPUR FOR ASSESSMENT YEAR 2009-10 HAS BEEN CONFIRMED BY THE ITAT, JAIPUR BENCH, JAIPUR VIDE ORD ER DATED 22.1.2016 IN ITA NO.671/JP/14 AND HENCE, RESPECTFUL LY FOLLOWING THE DECISION OF ITAT, JAIPUR BENCH THE ADDITION OF R S.25,71,000/- ON ACCOUNT OF EXCISE DUTY COMPONENT ADDED IN CLOSIN G STOCK IS HEREBY DELETED. THUS, IT IS CLEAR THAT THIS MATTER HAS ALSO BEEN DEC IDED IN FAVOUR OF THE ASSESSEE BY THE HONBLE ITAT, JAIPUR BENCH, J AIPUR FOR ASSESSMENT YEAR 2009- 10 AND RELIEF HAS RIGHTLY BEE N ALLOWED BY THE LEARNED CIT(APPEALS). IN VIEW OF THE ORDER OF ITAT, JAIPUR BENCH, JAIPUR F OR ASSESSMENT YEAR 2009-10 IN ASSESSEES CASE THE APPE AL OF THE DEPARTMENT DESERVES TO BE DISMISSED. 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 12 PASSED BY THE AUTHORITIES BELOW. WE FIND THAT THE CO ORDINATE BENCH IN ASSESSEES OWN CASE HAS DECIDED THE ISSUE UNDER CONS IDERATION IN FAVOUR OF THE ASSESSEE. THE FINDING OF THE COORDINAT E BENCH IS AS UNDER:- 10. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE GO ODS ARE LYING IN THE WAREHOUSE AND ON PRODUCTION, EXCISE DUTY IS NOT PAYABLE IT IS PAYABLE AT THE TIME OF GOODS C LEARED FROM THE WAREHOUSE, THEREFORE, NO ADJUSTMENT U/S 145 A ON ACCOUNT OF EXCISE DUTY IS REQUIRED TO BE MADE AS PE R LAW. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD CIT(A). THE REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY CONTRA RY JUDGMENT OF THE JURISDICTIONAL HIGH COURT, THEREFORE, TAKING A CONSISTENT VIEW, WE DO NOT SEE ANY REASON TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A). THEREFORE, THE ORDER OF THE LD. CIT(A) ON THIS GROUND IS HEREBY AFFIRMED AND THE GROUND NO. 2 OF THE REVENUES APPEAL IS DIS MISSED. 13. NOW WE TAKE UP REVENUES APPEAL IN ITA NO. 730/JP /2016 PERTAINING TO A.Y. 2011-12. THE FACTS IN THE PRESENT YEAR UNDER APPEAL ARE IDENTICAL TO THE FACTS OF THE CASE OF A.Y. 2011 -12 AND THERE IS NO CHANGE INTO THE FACTS AND CIRCUMSTANCES OF THE CASE . THE FACTS AND GROUNDS OF THE ITA NO. 730/JP/2016 FOR A.Y. 2011-12 ARE IDENTICAL AS IN ITA 729 & 739/JP/2016_ ACIT VS M/S MODERN THREADS LTD. 13 ITA NO. 729/JP/2016. THE RESPECTIVE REPRESENTATIVES OF REVENUE AS WELL AS ASSESSEE HAVE ADOPTED THE SAME ARGUMENT AS MADE IN ITA NO. 729/JP/2016. WE HAVE FOLLOWED THE DECISION OF THE CO ORDINATE BENCH, THEREFORE, TAKING A CONSISTENT VIEW, WE DO NOT SEE AN Y REASON IN THE ORDER OF THE LD. CIT(A) IN THIS YEAR ALSO. ACCORDING LY, THE GROUNDS RAISED BY THE REVENUE IN THE A.Y. 2011-12 ARE HEREBY DISMI SSED. 14. IN THE RESULT, THE BOTH THE APPEALS OF THE REVE NUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/10/2016. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07 TH OCTOBER, 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE A.C.I.T., CIRCLE-6, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S MODERN THREADS (INDIA) LIMITED, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 729 & 730/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR