Asstt. Commissioner of Income tax-I, Kanpur V. M/S Prakash Cold Storage, Kanpur

MA 56/LKW/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1122 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-10-2013
• Assessment Year: misc
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.56 /LKW/201 1 (ARISING OUT OF I.T.A.NO.475/LKW/2010) A.Y.: 2004 - 05 & M.A. NO.57 /LKW/201 1 (ARISING OUT OF I.T.A.NO.476/LKW/2010) A.Y.: 2005 - 06 DY. C.I.T. - I, KANPUR. VS. M/S PRAKASH COLD STORATE, 17/3, HOTEL MEGHDOOT, THE MALL, KANPUR. PAN:AAGFP6142G (APPELLANT) (RESPONDENT) APPLICANT BY SHRI AJAY KUMAR, D.R. RESPONDENT BY SHRI RAKESH GARG, ADVOCATE DATE OF HEARING 25/10/2013 DATE OF PRONOUNCEMENT 1 3 /11/2013 O R D E R PER A. K. GARODIA, A.M. BOTH THESE MISC. APPLICATIONS ARE FILED BY THE REVENUE AND THE CONTENTIONS OF THE REVENUE, AS PER PARA 3 OF THE MISC. APPLICATION, ARE AS UNDER: 3. THE DEPARTMENT DID NOT ACCEPT THE ORDER OF LD. CIT(A) AND PREFERRED THE APPEAL BEFORE HON'BLE ITAT WHO VIDE ORDER DATED 08.07.2011 UPHELD THE ORDER OF LD. CIT(A) [ 2 ] PASSED IN THIS CASE. HOWEVER, HON'BLE ITAT 'B' BENCH LUCKNOW HAS NOT CONSIDERED THE FACTS OF THE CASE THAT THE ASSESSEE FIRM IS SITUATED AT G.T. ROAD, DANDAURA BUJURG, MANIMAU, KANNAUJ OF UTTAR PRADESH WHICH WAS NEITHER A BACKWARD STATE AS PER EIGHTH SCHEDULE NOR THE KANNAUJ DISTRICT WAS NOTIFIED AS BACKWARD DISTRICT OF CATEGORY 'A OR 'B'. HON'BLE ITAT HAS ALSO NOT CONSIDERED THE FACT THAT THE ASSESSEE ITSELF IN ITS REPLY DATED 25.09.2006 STATED THAT THE ASSESSEE IS A PARTNERSHIP FIRM AND THE BUSINESS OF THE ASSESSEE IS TO RUN A COLD STORAGE IN WHICH MOSTLY POTATOES ARE KEPT ON SEASONAL BASIS. THUS A COLD STORAGE USED FOR STORING POTATOES CANNOT BE CONSIDERED TO BE A COLD CHAIN FACILITY AS PER THE PROVISION OF SECTION 80IB(11) OF THE IT. ACT 1961. 2. DURING THE COURSE OF HEARING OF THESE MISC. APPLICATIONS , A QUERY WAS RAISED BY THE BENCH AS TO WHETHER FOR THE PURPOSE OF ALLOWING DEDUCTION U/S 80IB(11) OF THE ACT , IS IT RELEVANT AS TO WHETHER THE ASSESSEE IS SITUATED IN A BACKWARD STATE OR BACKWARD DISTRICT BUT LEARNED D.R. OF THE REVENUE COULD NOT POINT OU T ANY SUCH REQUIREMENT AS PER SECTION 80IB(11) OF THE ACT. LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT THERE IS NO SUCH REQUIREMENT U/S 80IB(11) OF THE ACT AND THEREFORE, THERE IS NO MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL. 3. WE HAVE CONSIDERED T HE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ONLY OBJECTION OF THE REVENUE IN THE MISC. APPLICATIONS , AS PER PARA 3 , IS THAT THE TRIBUNAL HAS NOT CONSIDERED THIS ASPECT OF THE MATTER THAT THE ASSESSEE FIRM WAS NOT SI TUATED IN THE BACKWARD STATE OR DISTRICT BUT AS PER SECTION 80 IB(11) OF THE ACT, THERE IS NO REQUIREMENT THAT THE ASSESSEE SHOULD BE SITUATED IN A BACKWARD STATE OR BACKWARD DISTRICT. HENCE, WE DO NOT FIND ANY MERIT IN THE CONTENTION S [ 3 ] RAISED BY THE REVENUE IN ITS MISC. APPLICATIONS AND, THEREFORE, SAME ARE REJECTED. 4. IN THE RESULT, THE MISC. APPLICATIONS OF THE REVENUE STAND DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 3 / 1 1 / 2 0 1 3 *C.L.SINGH COPY OF THE O RDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR