ACIT, Shimla V. M/s H.P. State Civil Supplies Corporation, Shimla

ITA 836/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63999 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 836/CHD/2012 ASSESSMENT YEAR: 2009-10 ACIT, V M/S H.P.STATE CIVIL SUPPLIES SHIMLA. CORPORATION, SDA COMPLEX, KASUMPTI, DISTT. SHIMLA. PAN: AABCH-4054K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AKHILESH GUPTA RESPONDENT : SHRI RAJINDER PARSHAD DATE OF HEARING : 25.10.2012 DATE OF PRONOUNCEMENT : 08.11.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29.05.2012 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 27,85,502/- ON ACCOUNT OF HANDLING CHARGES ON THE SALE OF CEMENT. 2. IT IS PRAYED THAT THE ORDER OF THE LD CIT(A) BE SET-ASIDE AND THAT OF THE A.O. RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD ANY OTHER GRO UND OF APPEAL WHICH MAY ARISE AT THE TIME OF HEARING. 3. IN THE COURSE OF PRESENT APPELLATE PROCEEDING S, IT TRANSPIRED THAT THE ISSUE IS COVERED BY THE DECISIO N OF THE 2 HON'BLE TRIBUNAL IN ITA 49/CHD/2009, A.Y. 2005-06 I N ASSESSEE'S OWN CASE, AS INDICATED BY THE CIT(APPEAL S) IN HER FINDINGS, RECORDED IN PARA 5 OF HER ORDER DATED 29. 05.2012. THE RELEVANT PART OF THE DECISION OF THE TRIBUNAL I S REPRODUCED HEREUNDER : 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY. IN THIS CASE, ADMITTEDLY, THE CIT(APPEALS) HAS COME TO A FINDING THAT THE LIABILITY REFLECTED BY A SUM OF RS .40,65,370/- PAYABLE TO THE GOVERNMENT OF HIM ACHAL PRADESH IS AN ASCERTAINED LIABILITY AND STOOD CRYSTALI ZECL. IN SUPPORT OF THIS FINDING, THE CONFIRMATION ISSUED BY THE GOVERNMENT OF HIMACHAL PRADESH DATED 2.1 .2008 HAS BEEN REFERRED TO. FACTUALLY SPEAKING, ON T HIS ASPECT, WE DO NOT HAVE ANY DISPUTE WITH THE AFORESAID FINDING OF THE COMMISSIONER OF INCOME-TAX (A), ESPECIALLY, NOTING THAT THERE IS NO COG ENT EVIDENCE OR MATERIAL LED BY THE REVENUE BEFORE US WHICH WOULD REQUIRE US TO INTERFERE WITH SUCH FINDING OF THE COMMIS SIONER OF INCOME-TAX (A). THE SAME IS HEREBY AFFIRMED. SO HOWEVER, THE FACT, WHICH HAS BEEN OVERLOOKED BY THE COMMISSIONER OF INCOME-TAX (A), IS THAT THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER IN VIEW OF THE P AST HISTORY. THE COMMISSIONER OF INCOME-TAX (A) HAS NOT TAKEN INTO CONSIDERATION THE OUTCOME OF THE APPEALS ON THIS ISSUE DECIDED BY THE TRIBUNAL. OSTENSIBLY, THE ORDERS OF THE TRIBUNAL FOR ASSESSMENT YEAR 2002-03 (SUPRA) AS AL SO FOR ASSESSMENT YEARS 2003-04 AND 2004-05 (SUP RA) WERE PASSED PRIOR TO THE DATE OF IMPUGNED ORD ER. THE POINT THAT WE ARE TRYING TO MAKE-OUT IS THAT IN THE AFORESAID THREE ASSESSMENT YEARS, CERTAIN D IRECTIONS HAVE BEEN GIVEN BY THE TRIBUNAL TO CONSID ER THE TAXABILITY OF THE IMPUGNED AMOUNTS. IN FACT , THERE IS NEITHER A MENTION BY THE CIT(APPEALS) OF THE R ESULT OF SUCH DIRECTIONS AND NOR IT IS STATED AS HOW SUCH DIRE CTIONS ARE EFFECTUATED TO DECIDE THE ISSUE DURING THE YEAR UND ER 3 CONSIDERATION. SINCE IN THE PAST YEARS, SIMI1AR DIS ALLOWANCES HAVE BEEN MADE, IT IS NECESSARY THAT THE ULTIMATE DECISION IN THE PAST SHOULD BE CONSIDERED WHILE DECIDING THE ISSUE IN THIS YEAR.- WE FIND COMPLETE ABSENCE OF SU CH APPROACH IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX (A) EVEN AFTER TH E ASSESSING OFFICER HAS REFERRED TO THE PAST HISTORY IN THE ASS ESSMENT ORDER. THE ASSESSEE DOES NOT DISPUTE THE FACTUA L POSITION SO NOTED BY US, AS COPIES OF THE RESPECTIVE OR DERS OF THE TRIBUNAL HAVE BEEN FURNISHED IN THE PAPER BOOK. 9. CONSIDERED IN THE AFORESAID LIGHT, THE MA TTER IS SET ASIDE TO THE FILE OF THE COMMISSIONER OF INCOME-TAX (A) TO A DJUDICATE AFRESH IN THE LIGHT OF THE DIRECTIONS CONTAINED IN THE ORD ERS OF THE TRIBUNAL FOR ASSESSMENT YEAR 2002-03 (SUPRA) AND THEREAFTER FOR ASSESSMENT YEARS 2003-O4 AND 2004-05 (SUPRA). 10. IN CONCLUSION, THE APPEAL OF THE REVENUE IS PARTLY A11OWED AS ABOVE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED FACTS OF THE CASE AND THE RELEVANT RECORDS AND FOUN D FROM THE FACTS OF THE CASE AS RECORDED BY THE CIT(APPEAL S) IN PARA 4.1 OF THE IMPUGNED ORDER THAT THE AO OBSERVED THER EIN THAT APPEAL OF THE REVENUE, AGAINST THE DECISION OF THE TRIBUNAL, ON THE ISSUE IS PENDING FOR ADJUDICATION WITH HON'B LE HIMACHAL PRADESH HIGH COURT. THIS LED THE AO, TO M AKE SUCH ADDITION. THE RELEVANT FINDINGS OF THE CIT(AP PEALS) ARE REPRODUCED HEREUNDER : 5. THE RIVAL SUBMISSIONS HAVE BEEN CAREFULLY CONSI DERED WITH REFERENCE TO THE FACTS OF THE CASE. IT IS NOTED THA T THE ISSUE ALREADY STANDS DECIDED IN FAVOUR OF THE APPELLANT B Y THE HON'BLE ITAT, CHANDIGARH BENCH FOR THE A.YS. 2005-06 & 2006 -07. THE ISSUE HAS ALSO BEEN DECIDED IN FAVOUR OF THE APPELLANT BY THE CIT(A), SHIMLA FOR THE A. Y.S 2002-03, 2003-04 & 2004-05. IT HAS BEEN HELD TH AT THE CONVERSION OF THE HANDLING CHARGES INTO THE WORKING CAPITAL ADVANCE A ND UNSECURED LOANS 4 PROVES THAT THE RECEIPT IS IN THE NATURE OF AN ASCE RTAINED LIABILITY AND HAS BEEN RIGHTLY SHOWN AS SUCH IN THE BALANCE SHEET BY THE APPELLANT. IT IS NOTED THAT THE APPELLANT IS UNDER AN OBLIGATION TO REMIT THE AMOUNT OF HANDLING CHARGES TO THE GOVT. OF HIMACHAL PRADESH @ RS. 1 PER BAG OF CEMENT. AS REGARDS THE REMAINING COLLECTION OF HAND LING CHARGES TO THE EXTENT OF RS.0.50 PER BAG, THE APPELLANT HAS DULY S HOWN THE INCOME TO THAT EXTENT. KEEPING IN VIEW THE HISTORY OF THE CASE AND THE DECISIONS OF THE CIT(A), SHIMLA AND THE ITAT ON THE GIVEN ISSUE FOR THE A. YS. 2002-03 TO 2006-07, IT IS HELD THAT THE LD. A.0. IS NOT JUSTIF IED IN TREATING THE HANDLING CHARGES OF RS.27,85,502/- AS THE TAXABLE INCOME OF THE APPELLANT. 5. HAVING REGARD TO THE ABOVE RIVAL SUBMISSIONS, FA CTS OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL, AS MENTIONED ABOVE, AS ALSO THE FINDINGS RECORDED BY CIT(APPEALS), THE APPEAL OF THE REVENUE IS DISMI SSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH NOV.2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 8 TH NOV.,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH