Shri Surendra Kumar Dhawan, Kanpur V. Dy. Commissioner of Income Tax-II, Kanpur

MA 64/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3480 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P SINGH
• Keywords: Rule of consistency

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 64 /LKW/2015 (ARISING OUT OF I.T.A.NO. 551 /LKW/2013) ASSESSMENT YEAR:2009 - 10 SHRI SURENDRA KUMAR DHAWAN, 122/235 - C, FAZALGANJ, KANPUR. PAN:AANPD8806G VS. DY.C.I.T. - II, KANPUR. (APPLICANT) (RESPONDENT) M.A. NO. 65 /LKW/2015 (ARISING OUT OF I.T.A.NO. 552 /LKW/2013) ASSESSMENT YEAR:2009 - 10 SHRI SHITEJ DHAWAN, 122/235 - C, FAZALGANJ, KANPUR. PAN:ACQPD3380G VS. DY.C.I.T. - II, KANPUR. (APPLICANT) (RESPONDENT) M.A. NO. 66 /LKW/2015 (ARISING OUT OF I.T.A.NO. 921 /LKW/2013) ASSESSMENT YEAR:20 11 - 12 SHRI SURENDRA KUMAR DHAWAN, 122/235 - C, FAZALGANJ, KANPUR. PAN:AANPD8806G VS. DY.C.I.T. - II, KANPUR. (APPLICANT) (RESPONDENT) APPLICANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY S HRI T. P. SINGH, D. R. DATE OF HEARING 24 /07/2015 DATE OF PRONOUNCEMENT 1 8 /08/2015 O R D E R PER A. K. GARODIA, A.M. ALL THESE MISC. APPLICATIONS ARE FILED BY THE ASSESSEE POINTING OUT CERTAIN ALLEGED MISTAKE S IN THE IMPUGNED COMBINED TRIBUNAL ORDER . THE ALLEGED MISTAKE IS THAT THE TRIBUNAL HAS REVERSED THE FINDING OF CIT(A) PRIMARILY ON THE GROUND THAT THE INCOME HAS NOT BEEN ACCOUNTED FOR AS PER [ 2 ] ACC OUNTING STANDARD AND SECONDLY, ON THE PREMISE THAT RULE OF CONSISTENCY CANNOT BE FOLLOWED IN THIS CASE. IT IS SUBMITTED BY THE ASSESSEE THAT ONLY ACCOUNTING STANDARD - I & II HAVE BEEN NOTIFIED TO BE ADOPTED FOR THE INCOME TAX PURPOSES AND OTHER ACCOUNTING STANDARDS ARE YET TO BE NOTIFIED AND THEREFORE, THESE ACCOUNTING STANDARDS MAY BE MANDATORY FOR PREPARATION OF ANNUAL ACCOUNTS FOR COMPANIES INCORPORATED UNDER THE COMPANIES ACT, 1956 BUT IT CANNOT BE INSISTED UPON THE OTHER ASSESSEES. IT IS SUBMITTED THA T THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE HAS BEEN REGULARLY FOLLOWED AND WAS BEING ACCEPTED BY THE DEPARTMENT YEAR AFTER YEAR AND THEREFORE, RULE OF CONSISTENCY SHOULD BE APPLIED. IT IS ALSO SUBMITTED IN THE MISC. APPLICATION THAT AS PER THE TR IBUNAL DECISION RENDERED IN THE CASE OF SANJIV GUPTA IN I.T.A. NO.561/LKW/2012 FOR ASSESSMENT YEAR 2009 - 10, SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND THEREFORE, THE TRIBUNAL SHOULD HAVE FOLLOWED THIS TRIBUNAL DECISION INSTEAD OF TAKING A CONTRARY VIEW. RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: ( I ) CALCUTTA CO. LTD. VS. CIT [1959] 37 ITR 1 (SC) ( II ) CIT VS. BRIGADIER B. D. KHURANA [1996] 217 ITR 381 (ALL) ( III ) CIT VS. L. G. RAMAMURTHI [1977] 110 ITR 453 (MAD) ( IV ) CIT VS. GOO DLASS NEROLAC PAINTS LTD. [1991] 188 ITR 1 (BOM) ( V ) AFFECTION INVESTMENTS LTD. VS. ACIT [2010] 326 ITR 255 (GUJ) 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE DEAL WITH THE LAST CONTENTION THAT THE TRIBUNAL SHOULD HAVE FOLLOWED THE TRIBUNAL ORDER RENDERED IN THE CASE OF DCIT VS. SANJIV GUPTA (SUPRA). IN THIS REGARD, WE FIND THAT THIS TRIBUNAL ORDER IS AVAILABLE IN THE APPEAL FILE AND HENCE, IT HAS TO BE ACCEPTED THAT IT WAS CITED IN COURSE OF THE HEARING OF APPEALS. THIS IS ALSO SEEN THAT TH ERE IS NO REFERENCE OF THIS TRIBUNAL ORDER IN THE IMPUGNED TRIBUNAL ORDER. HENCE, IN OUR CONSIDERED OPINION, THERE IS AN [ 3 ] APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE THE TRIBUNAL ORDER CITED AS PER WHICH SIMILAR ISSUE IS SAID TO BE COVERED IN F AVOUR OF THE ASSESSEE WAS NOT TAKEN NOTE OF BY THE TRIBUNAL IN THE IMPUGNED ORDER. IT MAY BE THAT THE FACTS OF THAT CASE ARE DIFFERENT AND HENCE, THAT TRIBUNAL ORDER MAY NOT BE APPLICABLE IN THE PRESENT CASE BUT STILL, IN OUR CONSIDERED OPINION, WHEN SUCH AN ORDER IS CITED AND COPY SUBMITTED, THE SAME SHOULD HAVE BEEN CONSIDERED EVEN IF NOT FOLLOWED BECAUSE OF DIFFERENCE IN FACTS, IF ANY. HENCE, WE FEEL THAT THIS IMPUGNED TRIBUNAL ORDER SHOULD BE RECALLED TO DECIDE THE APPEALS AFRESH AFTER CONSIDERING THIS TRIBUNAL ORDER I.E. TRIBUNAL DECISION RENDERED IN THE CASE OF SANJIV GUPTA IN I.T.A. NO.561/LKW/2012 FOR ASSESSMENT YEAR 2009 - 10. ACCORDINGLY, WE RECALL THIS COMBINED TRIBUNAL ORDER AND THESE APPEALS ARE FIXED FOR HEARING ON 7 TH SEPTEMBER,2015. SINCE THE D ATE OF HEARING IS SPECIFIED IN THIS M.A. ORDER, NO SEPARATE NOTICE OF HEARING IS REQUIRED TO BE ISSUED. 3. IN THE RESULT, ALL THE MISC. APPLICATIONS OF THE ASSESSEE ARE ALLOWED. (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 8 /08/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR