Shivganga Cold Storage Pvt. Ltd., Gandhinagar V. The Income Tax Officer, Ward-4, Gandhinagar

MA 151/AHD/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6821 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 23-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Revised return; Unabsorbed depreciation
• Section: 143(3); 115JB

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD L LL LOZJH OZJH OZJH OZJH OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW;] U;KF;D LNL ] U;KF;D LNL ] U;KF;D LNL ] U;KF;D LNL; DS LE{KA ; DS LE{KA ; DS LE{KA ; DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER MISC. APPLICATION NO.151/AHD/2018 (ARISING OUT OF ITA NO.1498/AHD/2016) ( / ASSESSMENT YEAR : 2014-15) SHIV GANGA COLD STORAGE PVT. LTD., BLOCK NO: 530, DEHGAM MODASA HIGHWAY, VILLAGE: SAMPA DEHGAM, DIST: GANDHINAGAR 382 305 / VS. ITO, WARD 4, GANDHINAGAR. ./ ./ PAN/GIR NO. : AANCS 2086 A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : --NONE-- / RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. / DATE OF HEARING 06/07/2018 !'# / DATE OF PRONOUNCEMENT 13/07/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL T HE IMPUGNED EX PARTE ORDER DT. 23-03-2018 PASSED BY THIS TRIBUNAL. 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: THIS MISCELLANEOUS APPLICATION IS FILED AGAINST IT A APPEAL NO:1498/AHD/2016 WHERE IN THE SAME WAS FIXED ON 22. 03.2018 AND PRONOUNCED ON 23.03.2018 BEFORE C BENCH AND BY DI SMISSING THE ABOVE APPEAL FOR NON APPEARANCE ON DATE OF HEARING BY APPLYING ITAT MA NO.151/AHD/2018 (ARISI NG OUT OF ITAT NO.1498/AHD/2016) SHIV GANGA COLD STORAGE P LTD. VS. ITO ASST.YEAR 2014-15 - 2 - DELHI BENCH IN THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD 38 ITD 320 (DEL) WITH REFERENCE TO THIS, APPEAL, THE APPELLANT BEGS TO SUBMIT AS UNDER; 1.1 THE BRIEF FACTS OF THE CASE ARE THAT THE APPELL ANT IS PRIVATE LIMITED COMPANY EARNING INCOME MAINLY FROM BUSINESS OF COLD STORAGE RENTAL INCOME, APPELLANT'S COMPANY TURNOVER LIABLE FOR TAX AUDIT AND TAX AUDIT REPORT ALONG WITH FORM NO: 29B WERE OBTAINED DATED 30-09-2012 BY CA. RAJENDRA SAINI & CO., THE APPELLANT COMPANY HAS FILED ORIGINAL RETURN ON 29/09/2012 VIDE ACK NO: 504541491290912 D ECLARING LOSS OF RS.11,68,290/- ON ACCOUNT OF UNABSORBED DEPRECIA TION. REVISED RETURN OF INCOME WAS FILED ON 18/12/2012 REV ISING THE UNABSORBED DEPRECIATION TO RS.11,92,811/-. 1.2 APPELLANT COMPANY AUDITOR WHO FURNISHED ALONG W ITH AUDIT REPORT IN FORM NO:29B WITH FOLLOWING REMARK IN PARA 2(A). 2(A) I/WE CERTIFY THAT THE BOOK PROFIT HAS BEEN CO MPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. THE TAX PAYABLE UNDER SECTION 1153B OF INCOME TAX ACT IN RESPECT OF THE A SSESSMENT YEAR 2012-13 IS RS.508290/- WHICH HAS BEEN DETERMINED ON THE BASIS OF THE DETAILS IN ANNEXURE A TO THIS FORM 1.3 THE ASSESSEE COMPANY HAS SHOWN NET LOSS OF RS.11,68 ,290/- AS PER PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED ON 3 1.3.2012 DUE TO UNABSORBED DEPRECIATION AND ALSO REVISING THE UNABS ORBED DEPRECIATION TO RS.11,92,811/- TAXABLE INCOME IS SHOWN AT RS.NIL . THE AO FURTHER HELD THAT THE ASSESSEE COMPANY HAD DISCLOSED LIABIL ITY UNDER SECTION 115JB IN FORM NO:29B AND LIABLE TO PAY MAT OF RS.5, 08,290/- BUT HAS NOT WORKED OUT BOOK PROFIT UNDER THE PROVISIONS OF SEC. 115JB OF THE I.T. ACT IN COMPUTATION OF INCOME HENCE, TAX UNDER SECTION 115JB WAS NOT PAID ALONG WITH RETURN OF INCOME. WHILE FRAMING THE ASSESSMENT ORDER UNDER SECTION 143(3) DATED 17-03-2015 HE AS A CCEPTED BOTH NORMAL COMPUTATION AS WELL AS INCOME DECLARED AS PE R FORM NO:29B AT RS.5,08,290/- BUT PENALTY PROCEEDINGS U/S.271(1) B Y THE AO WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 1.4 THE PENALTY ORDER UNDER SECTION 271(1)(C ) WAS PASSED BY THE AO BY ORDER DATED.28-08-2015. 1.5 AGGRIEVED BY THE SAID PENALTY ORDER UNDER SECTION 2 71(1)(C) APPELLANT HAD PREFERRED 1 ST APPEAL BEFORE CIT(A)-GANDHINAGAR AND MA NO.151/AHD/2018 (ARISI NG OUT OF ITAT NO.1498/AHD/2016) SHIV GANGA COLD STORAGE P LTD. VS. ITO ASST.YEAR 2014-15 - 3 - CIT(A)-GANDHINAGAR BY HIS ORDER DATED 13/05/2016 HA S CONFIRMED THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF IT ACT. 1.6 THAT AGAINST THE CIT(A)-GANDHINAGAR ORDER DATED 13/ 05/2016 APPELLANT HAD PREFERRED 2 ND APPEAL BEFORE HON'BLE ITAT AT AHMEDABAD ON 13/05/2016 VIDE ITA NO:1498/AHD/2016 1.7 THAT APPELLANT RECEIVED NOTICE DATED 25.01.2018 FIX ING THE DATE ON 20.02.2018. 1.8 THAT APPELLANT SAYS THAT MY ADVOCATE RUPESH R.S HAH HAD SUBMITTED PAPER BOOK WITH WRITTEN REPLY ON 19.02.20 18 BEFORE BENCH IN TWO SET AND ONE SET BEFORE ITAT DR 1.9 THAT APPELLANT SAYS THAT MY ADVOCATE RUPESH R. SHAH APPEARED BEFORE HON'BLE 'C' BENCH ON 20.02.2018 AND MATTER W AS ARGUED BUT, MY ADVOCATE WAS UNDER BONAFIDE IMPRESSION THAT NO A DJOURNMENT WERE GIVEN AND FINAL HEARING WAS CARRIED. 1.10 THAT MY ADVOCATE RUPESH R SHAH HAS ALSO FILED AN AFFIDAVIT. 1.11 THAT ITA APPEAL NO; 1498/AHD/20L6 ORDER DATED 23.03.2018 WHERE IN THE SAME WAS DISMISSED FOR NON APPEARANCE MAY BE RESTORE IN THE INTEREST OF JUSTICE. IT IS THEREFORE PRAYED THAT THE ITA NO: 1498/AHD/20 16 MAY BE RESTORING IN THE INTEREST OF JUSTICE. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 23.03.2018, WE FIND THAT IN SPITE OF SERV ICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF ASSESSEE FOR THE HEA RING ON 23.03.2018. THUS, FOLLOWING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PR ADESH HIGH COURT MA NO.151/AHD/2018 (ARISI NG OUT OF ITAT NO.1498/AHD/2016) SHIV GANGA COLD STORAGE P LTD. VS. ITO ASST.YEAR 2014-15 - 4 - IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMISSED THE APPEAL OF AS SESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUN AL ON THE SAID DATE OF HEARING [23.03.2018]. THEREFORE, IN VIEW OF SUBMISS ION OF ASSESSEE WE RECALL THE ORDER DATED 23.03.2018 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. 5. ACCORDINGLY, WE RECALL THE ORDER DATED 23.03.201 8 OF THE ITAT AHMEDABAD C BENCH PASSED IN ITA NO.1498/AHD/2016 FOR ASST. YEAR 2014-15. THE REGISTRY IS DIRECTED TO FIX THE HEARIN G IN DUE COURSE. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/07/2018 PRITI YADAV, SR.PS MA NO.151/AHD/2018 (ARISI NG OUT OF ITAT NO.1498/AHD/2016) SHIV GANGA COLD STORAGE P LTD. VS. ITO ASST.YEAR 2014-15 - 5 - !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A) 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 09/07/2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10/07/2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 13/07/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER