Bijay Kumar Arisal, Khurda V. ITO, Khurda

ITA 96/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4441 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2011
• Court: TRIBUNAL
• Department Lawyers: J KHANRADR
• Assessee Lawyers: G NAIKR KAR ARS
• Keywords: Capital asset; Depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER / I.T.A.NO. 096 AND 097 OF 2011 / ASSESSMENT YEAR S 2004 - 05 AND 2005 - 06 SRI BIJAY KUMAR ARISAL, S/O. FAKIR MOHAN ARISAQL, AT/P.O. KAIPADAR, DIST.KHURDA PAN: AFHPA 6362 F - - - VERSUS - INCOME - TAX OFFICER, KHURDA WARD, KHURDA. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI G.NAIK/R.KAR, ARS / FOR THE RESPONDENT: / SHRI J.KHANRA,DR / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THESE APPEALS BY THE ASSESSEE AGITATE THE ORDER OF THE LEARNED CIT(A) DISMISSING THE ASSESSEES APPEALS FOR WANT OF PROSECUTION. 2. THE ISSUE RAISED BY THE ASSESSEE IN THESE APPEALS ARE WITH RESPECT TO DISA LLOWANCE OF EXPENSES CLAIMED UNDER VARIOUS HEADS INCLUDING ROYALTY PAID AND DEPRECIATION WHICH ISSUE HAD BEEN DEALT WITH BY THE TRIBUNAL IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2003 - 04 WHEN THE TRIBUNAL WAS PLEASED TO HOLD THAT THE DISALLOWANCE OF ROY ALTY BY THE ASSESSEE WAS NOT PROPER AND WAS TO BE ALLOWED AS REVENUE EXPENSE U/S.37 WAS PURELY ON THE FACT THAT THE LICENCE FEES PAID BY THE ASSESSEE WAS WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF ITS BUSINESS TO OPERATE MINES FOR A LIMITED PERIOD OF 3 YEAR S AND BY THIS PAYMENT, THE ASSESSEE NEITHER BROUGHT INTO EXISTENCE ANY CAPITAL ASSET NOR PROVIDED ANY BENEFIT OF ENDURING NATURE. THE CLAIM OF DEPRECIATION WAS DIRECTED TO BE ALLOWED ON THE BASIS OF FINDING THAT THE SUCH OPERATIONS I.T.A .NO. 096 AND 097 OF 2011 2 WERE CARRIED OUT BY THE ASSESSEE BY TOOLS ETC., COSTING LESS THAN 5,000 EACH WAS TO BE ALLOWED IN ITS ENTIRETY. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON OUR CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO HOLD THAT IN THE INTEREST OF JUSTICE, THE I SSUE REQUIRED DELIBERATION BY THE LEARNED CIT(A) ON THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ISSUES AGITATED IN THESE TWO APPEALS STOOD DECIDED BY THE TRIBUNAL AND STANDS COVERED IN FAVOUR OF THE ASSESSEE. THE LEARNED CIT(A) HAD NOTE D NON - APPEARANCE OF THE ASSESSEE OR BY ITS AUTHORISED REPRESENTATIVE BEFORE HIM BY RESORTING TO EXPARTE ORDER RELYING ON THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF CIT V. MULTIPLAN INDIA LTD (38 ITD 320).WE ARE UNABLE TO SATISFY OURSELVES TO THIS A S THE ASSESSEE - APPELLANT WAS REQUIRED TO FURNISH THE O RDER DT.12.6.2009 WHICH COPY HAD ALREADY BEEN FURNISHED TO THE ASSESSING OFFICER FOR CONSIDERATION ON MERITS. 4. WE SET ASIDE THE ORDER OF THE LEARNED CI T(A) AND RESTORE THE ISSUE TO HIS FILE FOR CO - RE LATING THE FACTS AS HAVE BEEN BROUGHT O N RECORD WHETHER COVERED BY THE DECISION OF THE TRIBUNAL IN THE ASSESSMENT YEARS AS SUBMITTED TO HAVE BEEN RELIED UPON IN THE ASSESSMENT YEAR 2003 - 04. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 28 TH APRIL, 2011 S D/ - S D/ - ( . . . ) , ( K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 28 TH APRIL, 2011 ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY. I.T.A .NO. 096 AND 097 OF 2011 3 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SRI BIJAY KUMAR ARISAL, S/O. FAKIR MOHAN ARISAQL, AT/P.O. KAIPADAR, DIST.KHURDA 2 / THE RESPONDENT: INCOME - TAX OFFICER, KHURDA WARD, KHURDA. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY