ITO 6(1)2, MUMBAI V. IRB INFRASTRUCTURE LTD, MUMBAI

ITA 7382/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8874 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 05-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 28-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MITESH N SHAH
• Keywords: Rule of consistency
• Section: 115JB

Judgement Text

, IN THE INCOME TAX APPELLA TE TRIBUNAL I BENCH, MUMBAI , . . , . . BEFORE SHRI RAJENDRA SINGH, AM & SHRI VIJAYPAL RAO, JM ./ ITA NOS.7382/MUM/2010 ( / ASSESSMENT YEARS:2004-05 ) ITO 6(1)(2), MUMBAI-400 020 VS. IRB INFRASTRUCTURE LTD., 501 DATTASHRAM, HINDU COLONY, LANE NO.1, DADAR (E), MUMBAI-400 014. ./ ./PAN NO. AAACI 3369 P ( /APPELLANT ) : ( / RESPONDENT ) REVENUE BY : MR. CHANDRAJIT SINGH / ASSESSEE BY : MR. MITESH N. SHAH / DATE OF HEARING : 5 TH SEPT., 2012 / DATE OF PRONOUNCEMENT : 12 TH SEPT, 2012 / O R D E R PER VIJAY PAL RAO (J.M.) : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 20-8-2010 OF CIT(A)-14, MUMBAI FOR THE ASSESSMENT YEAR 2004-05. THE REVENUE HAS RAISED VARIOUS GROUNDS OF APPEAL, HOWEVER, ONLY ISSUE ARISES AS TO WHETHER THE ASSE SSING OFFICER CAN TINKER WITH THE PROFIT AND LOSS ACCOUNT PREPARED BY FOLLOWING THE COMPLETED CONTRACT METHOD AND HAS POWER TO MAKE ADJUSTMENT TO THE BOOK PROFIT COMPUTED UNDER SECTION 115JB OTHER THAN THE ADJUSTMENT SPECIFICALLY PROVIDED UNDER THE EXPLANATION 1 TO SECTION 115JB. ITA NO :7382/10 2 2. WE HAVE HEARD THE LEARNED DR AS WELL AS LEARNED AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT IDENTICAL ISSUE HAS BEEN CONSIDERED AND DECIDED BY THIS TRIBUNAL IN ASSESSEES OW N CASE FOR THE ASSESSMENT YEAR 2005-06 IN ITA NO.6445/M/2008 VIDE ORDER DATED 11-1-2010 AND THEREAFTER AGAIN FOR THE ASSESSMENT YEAR 2002-03 & 2003-04 IN ITA NOS. 2905 & 2906/M/2010, VIDE ORDER DATED 7-7-2011. FOR THE ASSESSMENT YEARS 2002-03 & 2003-04, THIS TRIBUNAL HAS CONSIDERED AND DECIDED THIS ISSUE IN PARA 6 AS UNDER :- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY AND FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. THE CIT(A) HAS MERELY FOLLOWED THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE. WE FURTHER FIND THAT THE TRIBUNAL HAS DISCUSSED THIS ISSUE IN DETAIL IN PARAS 6 TO 10 IN ITA NO.6445/M/08. IT WAS MAINLY OBSERVED IN THIS ORDER THAT ONCE ACCOUNTS WERE PREPARED AS PER SCHEDULE VI OF THE COMPANIES ACT, 1956, AND THE SAME HAS BEEN APPROVED IN THE GENERAL MEETING, THEN THE SAME CANNOT BE TINKERED WITH. ULT IMATELY, IT WAS HELD THAT THE AO HAD NO JURISDICTION TO SUBSTITUTE THE PROFIT & LOSS ACCOUNT AND, ACCORDINGLY, THE ADDITION MADE IN THE BOOK PROF ITS WAS DELETED. THIS DECISION HAS BEEN RENDERED IN ASSESSEES OWN CASED. THEREFORE, FOLLOWING THE SAME, WE DECIDE THE ISSUE RA ISED BY THE REV ENUE AGAINST THE REVENUE. 3. TO MAINTAIN THE RULE OF CONSISTENCY AND UNIFORMITY, WE FOLLOW THE EARLIER ORDERS OF THIS TRIBUNAL AND ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. HENCE, THE IMPUGNED ORDER OF THE CIT(A) IS UPHELD. 4 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO :7382/10 3 ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPT., 2012 . 12 TH SEPT.,2012 SD/- SD/- ( ) ( ) ( RAJENDRA SINGH) ( VIJAY PAL RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED 12 TH / SEPT. /2012 . . / PKM. . ./PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI