Shri Subhash Ramji Shigwan, Ratnagiri V. CIT-II, Kolhapur

ITA 838/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84990 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 10-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Opportunity of being heard
• Section: 143(3); 133A; 194C; 131; 148; 6; 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO S. 837 & 838 /PN/20 1 3 ASSESSMENT YEAR S : 200 8 - 09 & 2009 - 10 SHRI SUBHASH RAM JI SHIGWAN, SHIGWAN COMPLEX, MANDANGAD, RATNAGIRI VS. COMMISSIONER OF INCOME TAX - II, KOLHAPUR (APPELLANT) (RESPONDENT) PAN NO. BBJPS4303P APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI A.K. MODI DATE OF HEARING : 0 9 - 0 9 - 2014 DATE OF PRONOUNCEMENT : 16 - 0 9 - 2014 ORDER P ER R.S. PADVEKAR , JM : - THESE TWO APPEALS ARE FILED BY THE ASSESSEE CHALLENGING THE ACTION OF THE LD. CIT - II, KOLHAPUR FOR EXERCISING THE JURISDICTION U/S. 263(1) OF THE INCOME - TAX ACT AND SETTING ASIDE THE ASSESSMEN T ORDERS FOR THE A.YS. 2008 - 09 AND 2009 - 10. THE FACTS AND ISSUES ARE IDENTICAL IN BOTH THESE APPEALS HENCE, THESE APPEALS ARE DISPOSED OFF BY THIS COMMON ORDER. 2. WE FIRST TAKE THE A.Y. 2008 - 09 BEING ITA NO. 837/PN/2013. THE ASSESSEE HAS TAKEN THE MULT IPLE GROUNDS INCLUDING THE ARGUMENTATIVE GROUNDS BUT THE SOLITARY ISSUE WHICH ARISES FOR OUR CONSIDERATION IS WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT - II, KOLHAPUR WAS JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER BY EXERCISING HIS POWER OF REVISION U/S. 263(1) OF THE INCOME - TAX ACT. THE FACTS WHICH REVEALED FROM THE RECORD ARE AS UNDER. THE ASSESSEE IS ENGAGED IN BAUXITE MINING ACTIVITIES, AT SAKHRI MINES, IN RATNAGIR I DISTRICT. THERE WAS A SURVEY ACTION U/S. 133A OF THE ACT AGA INST THE 2 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI ASSESSEE ON 21 - 01 - 2010. ON THE BASIS OF THE SURVEY ACTION , THE ASSESSEE WAS ISSUED NOTICE U/S. 148 OF THE ACT AND IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2008 - 09 ON 22 - 03 - 2010 DECLARING TOTAL INCOME OF RS. 20,18,530/ - . THOUGH INITIALLY THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT BUT SUBSEQUENTLY THE ASSESSEES ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 147 VIDE ASSESSMENT ORDER DATED 25 - 12 - 2010 ACCEPTING THE INCOME DECLARED BY THE ASSESSEE. AS NOTE D BY THE LD. CIT - II , KOLHAPUR ON PERUSAL OF THE RECORDS, IT WAS NOTICED THAT THE ASSESSEE HAD INCURRED EXPENDITURE TO THE TUNE OF RS.60,56,200/ - TOWARDS LABOUR CONTRACTORS, AND TRANSPORT CONTRACTORS. HOWEVER, THE ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE, I N TERMS OF SEC. 194C OF THE ACT. IN THE OPINION OF THE LD. COMMISSIONER , THE ASSESSEE HAS CONTRAVENED THE TDS PROVISIONS, AND HENCE, HE WAS HIT BY THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT. HE HAS OBSERVED THAT AND EXAMINATION OF RECORDS, IT IS REVEAL T HAT, THE ASSESSING OFFICER HAD FAILED TO CONSIDER THE APPLICABILITY OF SEC. 40(A)(IA) OF THE ACT DURING THE ASSESSMENT PROCEEDINGS. HE, THEREFORE, HELD THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) R.W.S. 147 DATED 25 - 12 - 2010 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, WITHIN THE MEANING OF SEC. 263(1) OF THE ACT. 3. THE LD. COMMISSIONER HAS OBSERVED THAT THE ASSESSEE IS DOING MINING WORK FROM BAUXITE MINE NEAR MANDANGAD, FOR ONE M/S . ASHAPURA MINECHEM LTD, MUMBAI. THE ASSE SSEE HAS STATED THAT HE HAS NOT ENTERED INTO ANY WRITTEN AGREEMENT FOR THE JOB WORK DONE FOR ASHAPURA MINECHEM, THE CONTRACTEE. IN ORDER TO COMPLETE THE WORK (THE EXACT EXTENT AND NATURE OF WHICH REMAINS A MYSTE R Y AS THERE IS ALLEGEDLY NO WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND ASHAPURA MINECHEM) ASSESSEE ENGAGES THE SERVICES OF LABOURS THROUGH MUKADAM AND TRANSPORTERS. HE ALSO HIRES MACHINERY TO COMPLETE THE WORK. THE 3 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI ASSESSEE STATES THAT HE HAS ACTED AS A LABOUR SUPPLIER TO ASHAPURA MINECHEM. THIS AVER MENT WAS MADE DURING THE COURSE OF SURVEY U/S . 133A AND REITERATED DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER SIMPLY ACCEPTED THE AVERMENTS, WITHOUT MAKING ANY ENQUIRIES WITH THE PRINCIPLE I.E. ASHAPURA MINECHEM , DESPITE THE FACT THAT THE ASS ESSEE VIDE HIS STATEMENT RECORDED U/S . 131 OF THE ACT, ON 27 - 01 - 2010, HAD ADMITTED THAT HE WAS ENTERING INTO CONTRACTS/AGREEMENTS WITH THE MUKADAMS AND RATES HAVE BEEN FIXED A T RS.52/ PER TON WHICH INCLUDES RS.2/ - AS COMMISSION TO MUKADAMS. THE ASSESSEE HA S ALSO INFORMED ABOUT SUCH RATES DURING THE PIROR PERIOD ALSO. FROM ABOVE IT IS SUFFICIENTLY CLEAR THAT THE ASSESSEE IS DOING HIS WORK OF EXCAVATION OF MINERALS THROUGH THE LABOUR CONTRACTORS, I.E . MUKADAM AT A FIXED RATE, AND THEREFORE, SUCH PAYMENTS ARE COVERED UNDER PROVISIONS OF SEC. 194C OF THE ACT. SINCE, THE ASSESSEE HIMSELF HAS CONCEDED VIDE ANSWER TO QUESTION NO. 10 OF HIS STATEMENT DATED 27 - 01 - 2010, THAT HE HAS NOT DEDUCTED TDS FROM SUCH PAYMENTS, THE PROVISIONS OF SEC. 40(A)(IA), BECOMES APPLICAB LE IN THE ASSESSEE'S CASE. 4. THE LD. COMMISSIONER AFTER CONSIDERING THE OBJECTION OF THE ASSESSEE SET ASIDE THE ASSESSMENT ORDER BY HOLDING THE SAID ORDER IS ERRONEOUS, IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. FOR COMING TO THE SA ID CONCLUSION , THE LD. COMMISSIONER HAS HELD AS UNDER: 7.2 A VIEW TAKEN BY THE ASSESSING OFFICER WITHOUT MAKING REQUISITE INQUIRIES OR EXAMINING THE CLAIM OF THE ASSESSEE WILL PER SE BE AN ERRONEOUS VIEW AND HENCE WILL BE AMENABLE TO REVISIO NAL JURISDICTIO N UNDER SECTION 263. FURTHER, IT IS NOT TAKING OF ANY VIEW THAT WILL TAKE THE MATTER UNDER THE SCOPE OF SECTION 263. RATHER, THE VIEW TAKEN BY THE ASSESSING OFFICER SHOULD NOT BE A MERE VIEW IN VACUUM BUT A JUDICIAL VIEW. IT IS WELL ESTABLISHED THAT THE AS SESSING OFFICER, BEING A QUASI - JUDICIAL AUTHORITY, CANNOT TAKE A VIEW EITHER AGAINST OR IN. FAVOUR OF THE ASSESSEE/REVENUE, WITHOUT MAKING PROPER INQUIRIES AND WITHOUT PROPER EXAMINATION OF THE CLAIM MADE BY THE ASSESSEE 4 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI IN THE LIGHT OF THE APPLICABLE LAW, AS ALREADY STATED, NO MATERIAL WAS PLACED BEFORE THE ASSESSING OFFICER AT THE ASSESSMENT STAGE TO TAKE SUCH A VIEW. THE ASSESSEE HAS ALSO NOT BEEN ABLE TO LEAD ENOUGH EVIDENCE TO SHOW THAT ANY INQUIRY WAS MADE BY THE ASSESSING OFFICER IN THIS REGARD. THER EFORE MERE ALLEGATION THAT THE ASSESSING OFFICER HAS TAKEN A VIEW IN THE MATTER WILL NOT PUT THE MATTER BEYOND THE PURVIEW OF SECTION 263 UNLESS THE VIEW SO TAKEN BY THE ASSESSING OFFICER IS A, JUDICIAL VIEW CONSCIOUSLY BASED UPON PROPER INQUIRIES AND APPR ECIATION OF ALL THE RELEVANT FACTUAL AND LEGAL ASPECTS OF THE CASE. THE ASSESSING OFFICER CANNOT BE PRESUMED OR ATTRIBUTED TO HAVE 'ADOPTED' OR CHOSEN A COURSE PERMISSIBLE IN LAW WHEN HIS ORDER DOES NOT SPEAK IN THAT BEHALF. 5. AFTER RECORDING THE ABOVE R EASONS T HE LD. COMMISSIONER SET ASIDE THE ASSESSMENT ORDER WITH THE FOLLOWING DIRECTIONS: 10. IN VIEW OF THE FACTS AND POSITION IN LAW DISCUSSED SUPRA, I AM OF THE CONSIDERED VIEW THAT THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 DTD. 25 - 12 - 2010, PASSED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2008 - 09 IS ERRONEOUS, IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ASSESSING OFFICER IS DIRECTED TO RE - EXAMINE THE ISSUES OF PAYMENT TO LABOUR CONTRACTORS, PAYMENTS MADE FOR HIRING CHARGE S OF MACHINERY AND TRANSPORTATION, IN RELATION TO THE AGREEMENT BETWEEN HIM AND ASHAPURA MINECHEM, OR THE WORK UNDERTAKEN ON BEHALF OF THE PRINCIPAL/CONTRACTEE. THE AO SHALL ALSO FIND OUT THE WAY IN WHICH THE ASSESSEE CONDUCTS HIS BUSINESS AND PAYMENTS MAD E BY ASHAPURA MINECHEM. HE SHALL ALSO FIND OUT WHETHER THE PAYMENTS ARE MADE BY ASHAPURA MINECHEM IN PURSUANCE OF A LEGAL OBLIGATION CREATED BY THEM THROUGH A WRITTEN OR AN ORAL CONTRACT. AFTER DETERMINING THE EXACT NATURE OF ASSESSEES BUSINESS, HE SHALL APPLY PROVISIONS OF SEC. 40(A)(IA), SEC. 194C, AND 194 - 1 OF THE ACT, TO THE EXTENT PERMISSIBLE. 11. HOWEVER, BEFORE ARRIVING AT ANY CONCLUSION, THE ASSESSING OFFICER SHALL GIVE AN OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCE IN SUPPORT OF ITS CLAIM THAT THE INCOME OFFERED IS PROPER AND THE CLAIM OF DEDUCTION/EXPENDITURE IS ALLOWABLE TO IT IN VIEW OF THE PREVAILING POSITION OF THE LAW. HENCE TO ENSURE THAT THE ASSESSEE IS GIVEN PROPER OPPORTUNITY OF BEING HEARD AND FOR SUBSTANTIATING ITS CLAIM IT WOULD BE JUST AND PROPER TO SET ASIDE THE ASSESSMENT 5 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI COMPLETED ON 25 - 12 2010 FOR AY 2008 - 09, FOR DE NOVO EXAMINATION OF THE FACTS IN THE MANNER STATED IN THE IMMEDIATELY PRECEDING PARA. THIS IS BEING DONE IN SPRIT OF THE HON. SUPREME COURT'S DECISION IN THE CASE O F RAMPYARI DEVI SARAOGI VS. C1T (1969) 67 1TR 84 (SC), WHEREIN IT IS HELD THAT SINCE THE ASSESSEE IS GETTING AN OPPORTUNITY OF BEING HEARD, NO PREJUDICE IS CAUSE TO THE ASSESSEE IF THE ORDER IS SET ASIDE . NOW, BEING AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBMITS THAT IN THE A.Y. 2007 - 08 , THE LD. COMMISSIONER - II, LOLHAPUR HAS SET ASIDE THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT BY EXERCISING HIS REVISIONARY POWERS U/S. 263 OF THE ACT. HE SUBMITS THAT THE ORDER OF THE LD. COMMISSIONER PASSED U/S. 263 WAS CHALLENGED BEFORE THIS TRIBUNAL BY FILING THE APPEAL BEING ITA NO. 757/PN/2012 ORDER DATED 10 - 09 - 2012. W E FIND THAT ON THE IDENTICAL REASON THE LD. COMMISSIONER HAS SET ASIDE THE ORDER FOR THE A.Y. 2007 - 08 EXERCISING HIS POWERS U/S. 263. THE TRIBUNAL SUSTAINED THE ACTION OF THE LD. COMMISSIONER AND WITH MODIFICATION IN THE ORDER DIRECTED THE ASSESSING OFFICER TO CONSIDER THE SUBMISSIONS OF THE ASSESSEE AND THE RELEVANT DIRECTIONS ARE AS UNDER: 3. BEFORE US, THE LIMITED PLEA RAISED BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE EXPENDITURES IN QUESTION HAVE BEEN ACTUALLY PAID DURING THE PREVIOUS YEAR UNDER CONSIDERATION AND NOTHING REMAINS PAYABLE AT THE END OF THE YEAR AND IN TH IS VIEW OF THE MATTER, NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT IS CALLED FOR IN TERMS OF DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS REPORTED IN 70 DTR (VISAKHA)(SB) (TRIB) 81. THE LD. COUNSEL FURTHER SUBMIT TED THAT THE ASSESSEE WOULD BE SATISFIED IF THE DIRECTIONS OF THE COMMISSIONER ARE MODIFIED SO AS TO REQUIRE THE ASSESSING OFFICER TO TAKE INTO CONSIDERATION THE RATIO OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & T RANSPORTS (SUPRA). 6 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI 4. TO THIS LIMITED PRAYER OF THE ASSESSEE, THE LD. CIT(DR) APPEARING FOR THE REVENUE HAD NO SERIOUS OBJECTION. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS ON THE SHORT POINT RAISED BY THE ASSESSEE, WE DEEM IT FIT AND PROPER TO, IN PRINC IPLE AFFIRM THE ACTION OF THE COMMISSIONER AND DIRECT THE ASSESSING OFFICER THAT WHILE CARRYING OUT THE DIRECTIONS OF THE COMMISSIONER 3 CONTAINED IN THE IMPUGNED ORDER DURING THE ENSUING ASSESSMENT PROCEEDINGS, HE SHALL CONSIDER THE POSITION OF LAW CANVAS SED BY THE ASSESSEE ON THE BASIS OF THE DECISION OF THE SPECIAL BENCH OF TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUPRA), AS ALSO OTHER SUBMISSIONS AS MAY BE PUT FORTH BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. NEEDLESS TO MENTION, THE ASSESSING OFFICER SH ALL CONSIDER THE SUBMISSIONS PUT FORTH BY THE ASSESSEE AND THEREAFTER ADJUDICATE IN ACCORDANCE WITH LAW . 7. AS THE FACTS AND ISSUES ARE IDENTICAL IN THIS YEAR, WE, THEREFORE, UPHOLD THE ACTION OF THE LD. COMMISSIONER FOR EXERCISING HIS POWERS U/S. 263 AND ON THE SAME DIRECTIONS AS IN THE A.Y. 2007 - 08 , THE ASSESSING OFFICER HAS TO EXAMINE THE ISSUE. ACCORDINGLY, THE ASSESSEES GROUNDS ARE DISMISSED. 8. NOW, WE TAKE UP A.Y. 2009 - 10 BEING ITA NO. 838/PN/2013. IN THIS YEAR ALSO THE ASSESSEE HAS TAKEN THE MULTIPLE GROUNDS WHICH ARE VERBATIM TO A.Y. 2008 - 09 BUT THE SOLITARY ISSUE WHICH ARISES FOR OUR CONSIDERATION IS WHETHER THE LD. CIT - II, KOLHAPUR JUSTIFIED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S. 143(3) DATED 02 - 05 - 2011. AS OBSERVED BY THE LD. COMMISSIONER ON THE PERUSAL OF THE RECORD, IT WAS NOTICED THAT IN THIS YEAR ALSO THE ASSESSEE HAS INCURRED EXPENDITURE TO THE TUNE OF RS.54,57,000/ - TOWARDS LABOUR CONTRACTORS, AND TRANSPORT CONTRACTORS. HOWEVER, THE ASSESSEE HAD NOT DEDUCTED TAX AT SOURC E, AS PER THE PROVISIONS OF SEC. 194C OF THE INCOME - TAX ACT HENCE, IN THIS YEAR ALSO THE LD. COMMISSIONER WAS OF THE OPINION THAT THE CLAIM OF THE EXPENDITURE IS HIT BY THE PROVISION OF SEC. 40(A)(IA) OF THE ACT. IN THIS 7 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI CASE ALSO THE REASONS GIVEN BY THE LD. COMMISSIONER FOR EXERCISING REVISIONARY POWERS U/S. 263 ARE VERBATIM AS IN THE A.Y. 2008 - 09. WE, THEREFORE, UPHOLD THE ACTION OF THE LD. COMMISSIONER BUT FOR THE SAKE OF CLARITY WE PREFER TO REPRODUCE THE OPERATIVE PART OF THE FINDINGS AND DIRECTIONS OF THE LD. COMMISSIONER ARE AS UNDER: 10. IN VIEW OF THE FACTS AND POSITION IN LAW DISCUSSED SUPRA, I AM OF THE CONSIDERED VIEW THAT THE ASSESSMENT ORDER U/S. 143(3) DTD. 02 - 05 - 2011, PASSED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2009 - 10 IS ERRON EOUS, IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ASSESSING OFFICER IS DIRECTED TO RE - EXAMINE THE ISSUES OF PAYMENT TO LABOUR CONTRACTORS, PAYMENTS MADE FOR HIRING CHARGES OF MACHINERY AND TRANSPORTATION, IN RELATION TO THE AGREEMENT BETWEEN HIM AND ASHAPURA MINECHEM, OR THE WORK UNDERTAKEN ON BEHALF OF THE PRINCIPAL/CONTRACTEE. THE AO SHALL ALSO FIND OUT THE WAY IN WHICH THE ASSESSEE CONDUCTS HIS BUSINESS AND PAYMENTS MADE BY ASHAPURA MINECHEM. HE SHALL ALSO FIND OUT WHETHER THE PAYM ENTS ARE MADE BY ASHAPURA MINECHEM IN PURSUANCE OF A LEGAL OBLIGATION CREATED BY THEM THROUGH A WRITTEN OR AN ORAL CONTRACT. AFTER DETERMINING THE EXACT NATURE OF ASSESSEES BUSINESS, HE SHALL APPLY PROVISIONS OF SEC. 40(A)(IA), SEC. 194C, AND 194 - 1 OF THE ACT, TO THE EXTENT PERMISSIBLE. 11. HOWEVER, BEFORE ARRIVING AT ANY CONCLUSION, THE ASSESSING OFFICER SHALL GIVE AN OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCE IN SUPPORT OF ITS CLAIM THAT THE INCOME OFFERED IS PROPER AND THE CLAIM OF DEDUCTION/EXPEND ITURE IS ALLOWABLE TO IT IN VIEW OF THE PREVAILING POSITION OF THE LAW. HENCE TO ENSURE THAT THE ASSESSEE IS GIVEN PROPER OPPORTUNITY OF BEING HEARD AND FOR SUBSTANTIATING ITS CLAIM IT WOULD BE JUST AND PROPER TO SET ASIDE THE ASSESSMENT COMPLETED ON 02 - 05 - 2011 FOR AY 2009 - 10, FOR DE NOVO EXAMINATION OF THE FACTS IN THE MANNER STATED IN THE IMMEDIATELY PRECEDING PARA. THIS IS BEING DONE IN SPRIT OF THE HON. SUPREME COURT'S DECISION IN THE CASE OF RAMPYARI DEVI SARAOGI VS. C1T (1969) 67 1TR 84 (SC), WHEREIN IT IS HELD THAT SINCE THE ASSESSEE IS GETTING AN OPPORTUNITY OF BEING HEARD, NO PREJUDICE IS CAUSE TO THE ASSESSEE IF THE ORDER IS SET ASIDE. 8 ITA NO S. 837 & 838 /PN/2013, SHRI SUBHASH RAMJI SHIGWAN, RATNAGIRI 9. WHILE DECIDING THE ASSESSEES APPEAL FOR THE A. Y . 2008 - 09, WE HAVE DIRECTED THE ASSESSING OFFICER TO FOLLO W THE ORDER OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y. 2007 - 08 SAME WAY TO EXAMINE THE ISSUE IN THIS YEAR ALSO THE ASSESSING OFFICER HAS TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL IN A.Y. 2007 - 08 AND TO DECIDE THE ISSUE AND TO THAT EXTENT THE D IRECTIONS OF THE LD. COMMISSIONER STANDS MODIFY. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 16 - 0 9 - 201 4 SD/ - SD/ - ( G . S . PAN NU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 16 TH SEPTEMBER, 2014 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 4 5 THE CIT - II, KOLHAPUR THE DR, ITAT, B BENCH, PUNE. GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR IN COME TAX APPELLATE TRIBUNAL PUNE