Asstt. Commissioner of Income Tax-I, Bareilly V. M/s Essar Technocrats & Engineers (I) Pvt., Bareilly

ITA 759/LKW/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100352 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O N PATHAK
• Assessee Lawyers: B P YADAV COST ACCOUNTANT
• Keywords: Depreciation; Audit objection; Corroborative evidences
• Section: 40A(3); 143(3)

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.759/LKW/2013 ASSESSMENT YEAR:2008 - 09 A.C.I.T. - I, BAREILLY. VS. M/S ESSAR TECHNOCRATS & ENGINEERS (I) PVT. LTD., F - 1, 47 CIVIL LINES, FURNITURE LANE, BAREILLY. PAN:AAACE8860F (APPELLANT) (RESPONDENT) APPELLANT BY SHRI O. N. PATHAK, D. R. RESPONDENT BY SHRI B. P. YADAV, COST ACCOUNTANT DATE OF HEARING 29/07/2015 DATE OF PRONOUNCEMENT 1 0 /09/2015 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), BAREILLY DATED 01/03/2013 FOR THE ASSESSMENT YEAR 2008 - 09. 2. IN THIS APPEAL , THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.2,40,000/ - ON ACCOUNT OF SALARY PAID TO SHRI PAN KAJ TYAGI, DIRECTOR. 2. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS 2 THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.61,925/ - ON ACCOUNT OF BONUS. 3. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.2,34,435/ - ON ACCOUNT OF SALARY & BONUS BEING SOME ITEMS ARE NOT FULLY VERIFIABLE. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(AP PEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.61,689/ - ON ACCOUNT OF STAFF AND LABOUR WELFARE/TRAVELING EXPENSES ON ACCOUNT OF UNVERIFIABLE ITEMS. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME T AX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.10,60.473/ - , ON ACCOUNT OF DEDUCTION CLAIMED IN CASE OF MATERIAL SUPPLIED AS NO DATE - WISE DETAILS AND SUPPORTING EVIDENCE WERE PRODUCED BY THE ASSESSE E. 6. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.54,089/ - OF ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE I.T. ACT, 1961. 7. THAT THE ORDER OF T HE LD. COMMISSIONER OF INCOME TAX(APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY DISALLOWED RS.1,06,532/ - ON ACCOUNT OF EXCESS DEPRECIATION CLAIMED BY THE ASSESSEE. 8. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), BAREILLY MAY BE CANCELLED AND THE ORDER OF THE ASSESSING OFFICER MAY BE RESTORED. 3 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE PRESENT APPEAL FILED BY THE REVENUE IS DEFECTIVE. IN THIS REGARD, HE SUBMITTED THAT IN THE PRESENT CASE, THE ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 1, BAREILLY ON 14/10/2010 AND IN THE ASSESSMENT ORDER, IT IS NOTED THAT LOSS AS PER PROFIT & LOSS ACCOUNT WAS RS.1,73,883/ - AND RETURNED INCOME WAS NIL. THEREAFTER, HE DRAWN OUR ATTENTION TO PAGE NO. 10 OF THE SECOND PAPER BOOK FILED ON 17/01/2015. HE SUBMITTED THAT THIS IS A LETTER DATED 22/09/2011 ISSUED BY DCIT, CIRCLE - 1, BAREILLY TO THE INCOME TAX OFFICER, WARD - 1(1), BAREILLY AND IN THIS LETTER , IT IS STATED THAT SINCE THE RETURNED INCOME IN THE PRESENT CASE IN THE PRESENT YEAR I.E. ASSESSMENT YEAR 2008 - 09 IS ONLY RS.1,73,883/ - AND ALTHOUGH THE ASSESSMENT U/S 143(3) HAS BEEN COMPLETED BY DCIT, CIRCLE - 1, BAREILLY, THE JURISDICTION OVER THE CASE NO W DOES NOT LIE IN THIS CIRCLE AS PER THE BOARDS INSTRUCTION NO. 1/2011 DATED 31/01/2011 KEEPING IN VIEW THE INCOME DECLARED BY THE ASSESSEE AND THEREFORE, THE AUDIT OBJECTION IN ORIGINAL IS BEING FORWARDED TO THE INCOME TAX OFFICER, WARD - 1(1), BAREILLY FO R TAKING IMMEDIATE ACTION. HE SUBMITTED THAT FROM THIS LETTER DATED 22/09/2011, IT IS CLEAR THAT AFTER BOARDS INSTRUCTION NO. 1/2011 DATED 31/01/2011, THE DCIT, CIRCLE - 1, BAREILLY WAS NOT HAVING ANY JURISDICTION OVER THE PRESENT ASSESSEE AND THE SAID JUR ISDICTION WAS OF INCOME TAX OFFICER, WARD - 1(1), BAREILLY BUT THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE IN NOVEMBER 2013 AND THE APPEAL MEMO IN FORM NO. 36 WAS SIGNED BY ACIT, CIRCLE - 1, BAREILLY AND THEREAFTER , THE GROUNDS OF APPEAL HAD BEEN SIGNED B Y DCIT, CIRCLE - 1, BAREILLY WHO WAS NOT HAVING JURISDICTION OVER THE ASSESSEE AND THEREFORE, THE APPEAL OF THE REVENUE IS DEFECTIVE. 4 4. IN REPLY, LEARNED D.R. OF THE REVENUE HA D NOTHING TO SAY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE I N THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE BECAUSE AS PER SUB SECTION (2) OF SECTION 253, THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY DIRECT THE ASSESSING OFFICER TO APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER PASSED BY CIT(A) U/S 250. HE NCE, IT IS SEEN THAT THE APPEAL BEFORE THE TRIBUNAL CAN BE FILED EITHER BY THE ASSESSEE OR BY THE ASSESSING OFFICER. THE PRESENT APPEAL HAS BEEN FILED IN THE MONTH OF NOVEMBER 2013 AND AS PER LETTER DATED 22/09/2011 AVAILABLE ON PAGE NO. 10 OF THE PAPER B OOK , THIS IS ADMITTED POSITION THAT AT LEAST AFTER THIS DATE, THE JURISDICTION OVER THE PRESENT ASSESSEE WAS WITH THE INCOME TAX OFFICER, WARD - 1(1), BAREILLY AND LEARNED D.R. OF THE REVENUE HAS NOT BROUGHT ON RECORD ANY MATERIAL BEFORE US TO SHOW THAT BETW EEN THIS DATE I.E. 22/09/2011 AND THE DATE OF FILING APPEAL BEFORE THE TRIBUNAL I.E. 20 TH NOVEMBER, 2013, THERE WAS ANY FURTHER DEVELOPMENT AS PER WHICH THE JURISDICTION WAS AGAIN TRANSFERRED FROM INCOME TAX OFFICER, WARD - 1(1), BAREILLY TO ACIT/DCIT, CIRCL E - 1, BAREILLY. LEARNED A.R. OF THE ASSESSEE HAS ALSO FILED COPY AND PLACED RELIANCE ON A TRIBUNAL DECISION IN ACIT VS. M/S SHREE THAKURJEE IRON & STEEL WORKS REPORTED IN 2003 (1) MTC 717 WHEREIN IT WAS HELD BY ALLAHABAD BENCH OF THE TRIBUNAL THAT WHEN THE JURISDICTION OVER THE CASE OF THE ASSESSEE WAS TRANSFERRED IN OCTOBER, 93 FROM ONE ASSESSING OFFICER TO OTHER ASSESSING OFFICER AND THE APPEAL WAS FILED IN JUNE 94 BY THE ASSESSING OFFICER WHO NO LONGER HAS JURISDICTION OVER THE ASSESSEE, THE APPEAL WAS N OT COMPETENT AND THEREFORE NOT MAINTAINABLE. THIS TRIBUNAL DECISION IS SQUARELY APPLICABLE IN THE PRESENT CASE AND THEREFORE, RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE HOLD THAT IN THE PRESENT CASE, THE APPEAL OF THE 5 REVENUE IS NOT MAINTAINABLE AN D THEREFORE, THE SAME IS LIABLE TO BE DISMISSED. WE ACCORDINGLY DISMISS THE APPEAL OF THE REVENUE BEING NOT MAINTAINABLE AS NOT FILED BY THE COMPETENT PERSON. 6. IN VIEW OF OUR ABOVE DECISION, VARIOUS GROUNDS RAISED BY THE REVENUE IN THIS APPEAL ARE NO T REQUIRED TO BE ADJUDICATED . 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED BEING NOT MAINTAINABLE. (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: 1 0 /09/2015 *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