M/s J.K. Synthetics Ltd., Kanpur V. Astt. Commissioner of Income Tax-4, Kanpur

MA 29/LKW/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6263 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-03-2018
• Assessment Year: 1992-1993
• Appeal Filed On: 08-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: WAS DECIDED

Judgement Text

M.A. NO.29/LKW/2016 ASSESSMENT YEAR:1992-93 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER MISC. APPLICATION NO.29/LKW/2016 (ARISING OUT OF I.T.A. NO.563/LKW/2010) ASSESSMENT YEAR:1992-93 M/S J. K. SYNTHETICS LTD., E-23, KAMLA TOWER, KANPUR. PAN:AAACJ 4988 M VS. A.C.I.T. - 4, KANPUR. (APPLICANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSES SEE AGAINST THE ORDER OF HON'BLE TRIBUNAL DATED 21/08/2015 PASSED I N I.T.A. NO.563/LKW/2016. 2. AT THE OUTSET, LEARNED A. R. INVITED OUT ATTENTI ON TO THE ORDER OF THE TRIBUNAL AT PAGE NO. 10 WHERE GROUND NO. 7 OF REVEN UES APPEAL WAS NOTED VIDE PARA 36 AND WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE REVENUE VIDE PARA NO. 37 AND 38. LEARNED A. R. SUB MITTED THAT VIDE PARA NO. 37, IT HAS BEEN OBSERVED BY THE TRIBUNAL THAT T HE ISSUE RAISED VIDE GROUND NO. 7 WAS SIMILAR TO GROUND NO. 1 OF REVENUE S APPEAL IN ASSESSMENT YEAR 1987-88 AND THEREFORE, FOLLOWING TH E SAME THE MATTER WAS DECIDED IN FAVOUR OF THE REVENUE. LEARNED A. R. SU BMITTED THAT IN FACT THE APPLICANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY CH. ARUN KUMAR SINGH, D.R. DATE OF HEARING 16/03/2018 DATE OF PRONOUNCEMENT 19 / 03 /201 8 M.A. NO.29/LKW/2016 ASSESSMENT YEAR:1992-93 2 FACTS OF THE TWO YEARS WERE EXACTLY THE OPPOSITE AN D IN THIS REGARD LEARNED A. R. FILED THE ORDER OF THE TRIBUNAL FOR THE ASSES SMENT YEAR 1987-88. LEARNED A. R. STATED THAT DURING ASSESSMENT YEAR 87 -88 THERE WAS EXCESS OF REFUNDS MADE OVER RECEIPTS BUT IN ASSESSMENT YEA R 1992-93 THERE WAS EXCESS OF RECEIPTS OVER REFUNDS MADE IN COPS DEPOSI T ACCOUNT. LEARNED A. R. IN SUPPORT OF HIS CONTENTION REFERS TO THE ORDER OF THE ASSESSING OFFICER FOR ASSESSMENT YEAR 87-88 WHO IN HER ORDER DATED 26 /07/94 AT PAGES 4 & 5 HAS HELD THAT THERE WAS EXCESS OF REFUND OVER RECEI PT AT RS.9,00,502/-. IT WAS SUBMITTED THAT THE FINDINGS OF HON'BLE TRIBUNAL THAT BOTH PARTIES HAD AGREED THAT FACTS IN BOTH YEARS ARE IDENTICAL IS NO T CORRECT. THEREFORE, IT WAS ARGUED THAT THERE HAS OCCURRED A MISTAKE APPARE NT FROM RECORD WHICH NEEDS TO BE RECTIFIED. 3. LEARNED D. R., ON THE OTHER HAND, RELIED ON THE ORDERS OF HON'BLE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IN I.T.A. NO.563 HO N'BLE TRIBUNAL VIDE A CONSOLIDATED ORDER DATED 21/08/2015 HAS NOTED IN RE SPECT OF GROUND NO. 7 VIDE PARA 36 TO 38 AS FOLLOWS: 36. GROUND NO. 7 OF THE REVENUE IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT (A) HAS ERRED IN HOLDING THAT SURPLUS RECEIP TS OVER REFUNDS IN THE COPS DEPOSITS ACCOUNT WAS NOT THE IN COME OF THE ASSESSEE AND THEREBY DELETING THE ADDITION O F RS. 19,55,735/-. 37. IT WAS AGREED BY BOTH SIDES THAT IDENTICAL ISSU E WAS RAISED IN THE APPEAL OF THE REVENUE FOR THE A.Y. 19 87 88 AS PER GROUND NO. 1 AND THIS APPEAL WAS HEARD ON 23.03 .2015 AND THEREFORE, IN THE PRESENT YEAR, THIS GROUND CAN BE DECIDED ON SIMILAR LINE AS PER TRIBUNAL ORDER IN THAT YEAR. M.A. NO.29/LKW/2016 ASSESSMENT YEAR:1992-93 3 38. WE FIND THAT IN A.Y. 1987 88, THIS ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE REVENUE AND AGAINST T HE ASSESSEE AS PER PARA NO. 3 OF THE TRIBUNAL ORDER IN A. Y. 19 87 88. NO DIFFERENCE IN FACTS COULD BE POINTED OUT BY ANY SID E AND THEREFORE, IN THE PRESENT YEAR ALSO, THIS ISSUE IS DECIDED ON SIMILAR LINE. ACCORDINGLY, THIS GROUND NO. 7 OF THE REVENUE IS ALLOWED. WE FURTHER FIND THAT THOUGH IN ASSESSMENT YEAR 87-8 8 THE REVENUE HAS TAKEN SIMILAR GROUNDS OF APPEAL AND HON'BLE TRIBUNA L RELYING ON THE TRIBUNAL ORDER IN ASSESSMENT YEAR 86-87 HAS ALLOWED THE ISSUE IN FAVOUR OF THE REVENUE. HOWEVER, EXAMINATION OF ASSESSMENT OR DER FOR ASSESSMENT YEAR 87-88 REVEALS THAT ASSESSING OFFICER IN THAT Y EAR VIDE ORDER DATED 26/07/94 AT PAGES 2 TO 5 HAS OBSERVED AS UNDER: THE ASSESSEE IS IN THE PRACTICE OF ACCEPTING SECUR ITY DEPOSIT ON COPS FROM CUSTOMERS TO WHOM IT SENDS ITS COPS (AROUND WHICH YEARN IS WOUND) DURING ITS SALE OF YA RN. THIS SECURITY DEPOSIT IS REFUNDED WHEN THE SAID COPS ARE RECEIVED BACK. IN THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS RECEIVED RS.4,55,85,030/- AS SECURITY DEPOSIT OF CO PS AND A SUM OF RS.4,64,85,532/- WORTH OF SECURITY DEPOSIT HAS B EEN REFUNDED IN THIS YEAR. THEREFORE, THE EXCESS OF REF UNDS OVER RECEIPTS IS RS.9,00,502/-. IN EARLIER ASSESSMENT YEARS. DEPARTMENT HAS TAKEN SECURITY DEPOSIT RECEIVED AGAINST COPS AS TRADING R ECEIPTS OF THE ASSESSEE COMPANY. CONSEQUENTLY, THE SECURITY DEPOSI T RECEIVED IN EXCESS OF THE REFUND HAS BEEN ADDED TO THE ASSES SEE'S INCOME. EVEN THOUGH SUCH ADDITION MADE BY THE ASSES SING OFFICER HAS BEEN DELETED BY APPELLATE AUTHORITIES, THE DEPARTMENT HAS NOT ACCEPTED THE ORDERS OF APPELLATE AUTHORITIES AND HAS FILED REF.'/APPEAL AGAINST SUCH DELETIONS. IN THE YEAR UNDER CONSIDERATION, THERE IS EXCESS RE FUND OVER RECEIPTS AND THE ASSESSEE HAS CLAIMED DEDUCTION IN RESPECT OF THIS EXCESS REFUND WHICH COMES TO RS.9,00,502/- (4,64,85,532 - 4,55,85,030). DETAILS OF THE CALCULATION OF THIS SECURITY DEPOSIT HAS BEEN FILED VIDE ANNEX. 33 WHIC H HAS BEEN EXAMINED. M.A. NO.29/LKW/2016 ASSESSMENT YEAR:1992-93 4 THE CLAIM OF THE ASSESSEE FOR A DEDUCTION OF RS. 9, 00,502 IS REJECTED AS EVEN THIS STAND TAKEN BY THE ASSESSEE IN EARLIE R YEARS HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. HOWE VER, NO ADDITION IS MADE THIS YEAR BECAUSE REFUNDS EXCEED R ECEIPTS.' 4.2 FROM THE ABOVE FACTS NOTED BY THE ASSESSING OFF ICER, WE FIND THAT DURING ASSESSMENT YEAR 87-88 THE ISSUE WAS REGARDIN G EXCESS REFUND OVER RECEIPTS WHEREAS DURING THE YEAR UNDER CONSIDERATIO N THE ISSUE WAS REGARDING SURPLUS RECEIPTS OVER REFUND WHICH IS EXA CTLY OPPOSITE TO THE FACTS OF THE ASSESSMENT YEAR 87-88. 4.3 IN VIEW OF THESE FACTS AND CIRCUMSTANCES, A MIS TAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL DATED 21/08/2015 SO FAR A S GROUND NO. 7 RELATES. THEREFORE, FOR THE LIMITED PURPOSE OF READJUDICATIO N ON GROUND NO. 7, THE SAID ORDER OF THE TRIBUNAL DATED 21/08/2015 IS RECA LLED. THE REGISTRY IS DIRECTED TO FIX THE CASE FOR LIMITED PURPOSE OF ADJ UDICATING ON GROUND NO. 7 BY ISSUING NOTICE TO BOTH THE PARTIES. IN VIEW OF THE ABOVE, THE MISC. APPLICATION OF THE ASSESSEE STANDS ALLOWED. 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 19/03/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:19/03/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW