Kumar Marketing Corporation, Pune v. DCIT, Pune

ITA 1368/PUN/2007 | 2001-2002
Pronouncement Date: 24-09-2010 | Result: Allowed

Appeal Details

RSA Number 136824514 RSA 2007
Assessee PAN AABFR3456H
Bench Pune
Appeal Number ITA 1368/PUN/2007
Duration Of Justice 2 year(s) 11 month(s) 1 day(s)
Appellant Kumar Marketing Corporation, Pune
Respondent DCIT, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 24-09-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 24-09-2010
Assessment Year 2001-2002
Appeal Filed On 23-10-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO ITA NO. 1368/PN/07 (ASSTT. YEAR 2001-02) KUMAR MARKETING CORPORATION 8/2 SANGHAR APARTMENTS PUNE SATARA ROAD PUNE 411037 PAN NO. AABFR3456H .... APPELLANT VS. DCIT CIRCLE-2 PUNE . RESPONDENT APPELLANT BY : SHRI KISHOR PHADKE RESPONDENT BY : SMT. MANJU AJWANI ORDER PER D. KARUNAKARA RAO AM THIS APPEAL BY THE ASSESSEE AGAINST THE CIT(A)-II PUNE DATED 25-07-2007 FOR THE A.Y 2001-02. 2. AT THE OUTSET LD. COUNSEL OFFERED TO THE GROUND NO. 1 RELATING TO THE JURISDICTION OF THE A.O IN INVOKING THE PROVISIONS OF SEC. 147 OF THE ACT. IN THIS REGARD LD. COUNSEL DEMONSTRATED THAT THE ISSUE UNDE R CONSIDERATION WAS ALREADY EXAMINED IN DEPTH DURING THE ORIGINAL SCRUTINY PROC EEDINGS U/S. 143(3) OF THE INCOME TAX ACT. REFERRING TO THE PAPERS THE COUNSE L MENTIONED THAT THE CONCEALED INCOME IN QUESTION RELATES TO THE GARLIC REDUMPTION FINE ORIGINALLY ALLOWED BY THE AO IN THE SCRUTINY PROCEEDINGS. LD. COUNSEL MENTIONED THAT RELEVANT DETAILS WERE FILED WITH THE RETURN CLAIMIN G GARLIC REDEMPTION FINE OF RS. 24 75 000/- AS PER PAGE 28 (PROFIT AND LOSS ACCOUNT ) OF PAPER BOOK. FURTHER REFERRING TO PAGES 29 AND 30 OF THE PAPER BOOK LD . COUNSEL READ OUT THE FACT OF LEAVING A NOTE IN THIS REGARD STATING THAT SAID RED EMPTION FINE WAS PAID TO THE CUSTOMS DEPARTMENT AND IT IS NOT IN THE NATURE OF PENALTY. FURTHER THE ASSESSEE REFERRED TO ITS REPLY LETTER DATED 20-02-2003 TO T HE A.OS QUARRIES LETTER DATED 17-12-2002 RAISED IN THE ORIGINAL ASSESSMENT PROCEE DINGS. FURTHER THE COUNSEL ALSO REFERRED TO THE ITEM NO. 19 OF THE LETTER P LACED AT PAGE 53 OF THE PAPER ITA NO. 1368/PN/2007 A.Y 2001-02 PAGE 2 OF 3 BOOK FOR DEMONSTRATING HOW DEEPLY THE ISSUE WAS DI SCUSSED AND ANALYSED BY THE AO BEFORE THE CLAIM WAS FINALLY ALLOWED. LD. COUNS EL ALSO REFERRED TO THE NOTE RECEIVED BY THE ASSESSEE IN CONNECTION WITH THE SPE CIFIC QUARRY ON GARLIC REDEMPTION FINE AND ITS ALLOWABILITY. FURTHER REFER RING TO THE PAGE 36 OF THE PAPER BOOK LD. COUNSEL MADE OUT THE DETAILED DISCUSSION THAT TOOK PLACE IN CONNECTION WITH THE ALLOWABILITY OF THE SAID REDEMPTION FINE. THUS SUMMING UP LD. COUNSEL ARGUED STATING THAT THE A.O APPLIED HIS MIND TO THE ISSUE OF GARLIC REDEMPTION FINE IN DEPTH DURING THE ORIGINAL ASSESSMENT PROCEE DINGS AND FORMED AN OPINION BEFORE ALLOWING THE CLAIM. FURTHER LD. COUNSEL SUM MED UP STATING THAT IT IS THE CASE OF CHANGE OF OPINION AND IN SUCH CIRCUMSTANCES THE A.O IS BARRED FROM ASSUMING JURISDICTION UNDER SECTIONS 147/148 OF THE I.T. ACT. LD. COUNSEL ALSO RELIED ON VARIOUS CITATIONS IN THIS REGARD ARE AS F OLLOWS:- 1. IPCA LABORATORIES LTD. 251 ITR 420 (HC OF BOM) 2. DR. H.K. MAHATAB 111 ITR 900 (HC OF ORISSA) 3. CIT VS. KALVINATOR OF INDIA LTD. 256 ITR 1 (HC OF DELHI) 4. CIRCULAR NO. 772 DATED 23.12.98 5. CIT VS. PANNALAL NAROTTAMDAS CO. 67 ITR 667 (HC OF BOM) 6. ROHIT PULP & PAPER MILLS LTD. 215 ITR 919 (HC O F BOM) 7. CIT VS. N.M. PATHASARATHY 212 ITR 105 (HC OF MADRAS) 3. ON MERITS LD. COUNSEL STATED THAT THE ASSESSEE HAD TO PAY THE SAID FINE FOR IMPORTING THE GARLIC WITHOUT SPECIFIC IMPORT LI CENSE. FURTHER LD. COUNSEL MENTIONED THAT THE GROUND NO. 2 RELATING TO MERITS NEED NOT BE ADJUDICATED IF THE VALIDITY ISSUE IS DECIDED IN HIS FAVOUR. LD. DR FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF THE REVENUE AS WELL AS THE PAPER BOOK AND THE CITATIONS FILED BEFO RE US. FROM THE PERUSAL OF THE PAPER BOOK AND THE CONTENTS MENTIONED THEREIN IT IS OBVIOUS FROM THE SAID DOCUMENTS/PAPER BOOK THAT THERE IS A SPECIFIC QUERY BY THE A.O ON THE ISSUE OF GARLIC REDUMPTION FINE PAID BY THE ASSESSEE TO THE CUSTOMS AUTHORITIES. THE CLAIM WAS ALLOWED BY THE ORIGINAL A.O AFTER EXAMINATION O F THE ISSUE. CONSIDERING THE DOCUMENTS AND EVIDENCES AVAILABLE BEFORE US WE ARE OF THE OPINION THAT A.O HAS FOUND THE OPINION AND ALLOWED THE CLAIM OF THE ASSE SSEE. THE SAME IS SUPPORTED BY SERIES OF FACTS AVAILABLE ON RECORDS CITED ABOVE . A.O RAISED THE SPECIFIC QUERY ON THIS ISSUE AND THE ASSESSEE REPLIED TO THE SAME ELABORATELY. THE IS ADEQUATELY EVIDENCED. IN THESE CIRCUMSTANCES IT IS DECIPHERAB LE THAT THE A.O FORMED AN OPINION FOR NOT MAKING THE ADDITION IN THE ORIGINAL ASSESSMENT PROCEEDINGS ON ACCOUNT OF THE GARLIC REDUMPTION FINE. IN THESE C IRCUMSTANCES THE ISSUE OF NOTICE U/S. 148 R.W.S 147 FOR EXAMINING THE SAME IS SUE OF GARLIC REDUMPTION FINE ITA NO. 1368/PN/2007 A.Y 2001-02 PAGE 3 OF 3 WHICH WAS ALREADY EXAMINED AND ALLOWED IS INVALID A S THE SAME IS BASED ON CHANGE OF OPINION. NO REASSESSMENT IS ALLOWED UND ER THESE CIRCUMSTANCES. THEREFORE THE CITATIONS CITED BY THE ASSESSEE SUPP ORT THE ASSESSEES CONTENTIONS. THEREFORE WE ARE OF THE OPINION THAT ASSESSEE MUST SUCCEED ON GROUND NO. 1 RELATING TO VALIDITY IN ASSUMING JURISDICTION U/S. 148 OF THE I.T. ACT. ACCORDINGLY GROUND NO. 1 OF THE ASSESSEE IS ALLOWED . 5. CONSIDERING OUR DECISION ABOVE ON THE VALIDITY O F ASSUMING JURISDICTION OF REASSESSMENT U/S. 147 OF THE ACT THE ADJUDICATION OF THE ISSUES ON MERITS IS MERELY AN ACADEMIC EXERCISE AND THE SAME IS DISMISSED AS INFRUCTUOUS. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 24 TH SEPTEMBER 2010. SD/- SD/- (I.C. SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 24 TH SEPTEMBER 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DCIT CIRCLE-2 PUNE 3. CIT(A)-II PUNE 4. CIT-II PUNE 5. D.R. ITAT B BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE