ACIT, Jaipur V. SHREE CEMENT LTD., BEAWAR

ITA 814/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5384 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 29-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY SHAH CA DHK
• Keywords: Rectification of order; Capital receipt
• Section: 143(3); 115JB; 154

Judgement Text

ITA NO. 814/JP/2013 ACIT, CI RCLE- 2 , AJMER VS. M/S. SHREE CEMENT LTD., BEAWA R 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLA G ;KNO] YS[KK LNL; DS LE{K BEFORE:SHRI R.P.TOLANI, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA-@ ITA NO. 814/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 THE ACIT CIRCLE- 2, AJMER CUKE VS. M/S. SHREE CEMENT LTD. BANGUR NAGAR, BEAWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAACR 8882 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI M.S. MEENA, CIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIJAY SHAH , CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/02/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27 /04/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM:- THIS IS REVENUES APPEAL ARISING OUT OF THE ORDER O F THE LD. CIT(A), AJMER DATED 27-08-2013 U/S 154 FOR THE ASSESSMENT Y EAR 2004-05. THE SOLE GROUND RAISED BY THE REVENUE IS AS UNDER:- IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) AJMER HAS ERRED IN:- 1. DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF SALES TAX SUBSIDY BY TREATING THE AMOUNT OF RS. 21, 92,36,206/- AS CAPITAL RECEIPT INSTEAD OF REVENUE RECEIPT FOR COMP UTING THE INCOME AS PER NORMAL PROVISION OF THE ACT. 2.1 AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE THE CONTENDS THAT THE IMPUGNED ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDE R DATED 28-12-2006 ITA NO. 814/JP/2013 ACIT, CI RCLE- 2 , AJMER VS. M/S. SHREE CEMENT LTD., BEAWA R 2 WHEREIN OF SALES TAX SUBSIDY WAS CONSIDERED AS REV ENUE RECEIPT AND ADDITION WAS INCLUDED FOR THE PURPOSE OF CALCULATION U/S 115 JB OF THE ACT. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHEREIN THE LD. CIT(A) ON MERITS VIDE HIS ORDER DATED 26-03-2010 ALLOWED T HE CLAIM OF THE ASSESSEE AND AOS ORDER STOOD MERGED IN LD. CIT(A)S ORDER. HOWEVER, THE AO WITHOUT APPRECIATING THE RECORD ASPECT BY IMPUGNED ORDER U/S 154 OF THE ACT DATED 30-03-2011 PASSED THE RECTIFIED ORDER IN RESP ECT OF CALCULATION U/S 115JB OF THE ACT QUA THE SALES TAX SUBSIDY RECEIPT. . 2.3 AGGRIEVED AGAINST THE AOS RECTIFICATION ORDER U/S 154, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT(A) WHO AP PRECIATED THE FACTS AND HELD THAT THE ISSUE IN QUESTION HAS BEEN DECIDED IN APPEAL BY THE LD. CIT(A) AND THE ORDER OF THE AOS ORIGINAL ASSESSMENT ORDE R HAVING MERGED IN THE APPELLATE ORDER IS UNTENABLE AND ALLOWED THE ASSESS EE'S APPEAL. 2.4 THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEN DS THAT IN THE MEANWHILE THE ITAT JAIPUR BENCH VIDE ITS CONSOLIDAT ED ORDER DATED 09-09- 2011 (ITA NOS.614,615 AND 635/JP/2010 FOR THE ASSES SMENT YEARS 2004-05, 05-06 AND 06-07) CONFIRMED THE ORDER OF THE LD. CIT (A) ON MERITS EXCLUDING THE SALES TAX SUBSIDY AMOUNT FROM THE CALCULATION O F SECTION 115JB OF THE ACT. CONSEQUENTLY, THE ORDER OF THE LD. CIT(A) QUAS HING IMPUGNED ORDER U/S 154 OF THE ACT IS JUST AND PROPER LOOKING FROM ANY ANGLE. 2.5 THE LD. DR IS HEARD. ITA NO. 814/JP/2013 ACIT, CI RCLE- 2 , AJMER VS. M/S. SHREE CEMENT LTD., BEAWA R 3 2.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE. SINCE THE LD. CIT(A)S ORDER ON MERIT ON THE ISSUE OF SALES TAX SUBSIDY WAS ALREADY PASSED, THEREFORE, LEGALLY THE AOS ASSESSMENT ORDER STOOD MERGED IN APPELLATE ORDER PASSED THEREON. THE REAFTER, THE AO HAD NO POWER TO RECTIFY HIS ORDER WHICH STOOD MERGED IN LD . CIT(A)S ORDER, BESIDE IT NOW STAND MERGED WITH ITAT ORDER (SUPRA) IN FAVO UR OF THE ASSESSEE. IN VIEW OF THE FOREGOING, THE LD. CIT(A)S ORDER QUASH ING THE ORDER OF THE AO U/S 154 OF THE ACT IS UPHELD. THUS THE APPEAL OF TH E REVENUE IS DISMISSED. 3.0. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 /04/201 6. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 /04/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ACIT , CIRCLE- 2, AJMER 2. IZR;FKHZ@ THE RESPONDENT- SHREE CEMENT LTD., BEAWAR 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.814/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR