DCIT, Circle - 4, Kolkata, Kolkata v. M/s. The Ethelbari Tea Co. (1932) Ltd., Kolkata

IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH B KOLKATA () BEFORE . .. . . .. . ! SHRI D.K.TYAGI JUDICIAL MEMBER. '#$ '#$ '#$ '#$ /AND . .. . . .. .% % % % & ! SHRI B.K.HALDAR ACCOUNTANT MEMBER $' $' $' $' / ITA NO .1944/KOL/2010 () #*+/ ASSESSMENT YEAR : 2006-07 (-. / APPELLANT ) D.C.I.T. CIRCLE-4 KOLKATA - #( - - VERSUS - . (0-./ RESPONDENT ) M/S. THE ETHELBARI TEA CO.(1932)LTD. KOLKATA (PAN: AAACT 0719 J) -. 1 2 / FOR THE APPELLANT: SHRI P.KOLHE 0-. 1 2 / FOR THE RESPONDENT: SHRI S.MUKHERJEE 3 / ORDER ( (( ( . . . . . . . . % % % % ) ! PER SHRI B.K.HALDAR AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD.CIT(A)-IV KOLKATA DATED 22.01.2010 FOR A.YR.2006-07. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEA L :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A)-IV KOLKATA HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.2 1 6 439/- ON ACCOUNT OF CESS ON GREEN LEAF WITHOUT CONSIDERING THE FACT THAT EXPENS ES ON ACCOUNT OF CESS ON GREEN LEAF IS RELATED TO 100% AGRICULTURAL OPERATIO N AND SLP IS PENDING BEFORE THE HONBLE SUPREME COURT AGAINST THE DECISION OF C ALCUTTA HIGH COURT IN THE CASE OF AFT INDUSTRIES LTD. VS- CIT (270 ITR 167) IN THE LIGHT OF WHICH LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 2 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A)-IV KOLKATA HAS ERRED IN LAW IN ALLOWING DEDUCTIONS @125% U/S 35(1) (II) ON ACCOUNT OF SUBSCRIPTION MADE TO TEA RESEARCH ASSOCIATION WITHO UT CONSIDERING THE FACTS THAT NO SUCH DEDUCTION WAS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE APPEAL FILED BY THE REVENUE IS LATE BY ONE DAY. THE SAME IS CONDONED AND THE APPEAL IS ADMITTED. 4. IT IS THE COMMON SUBMISSION OF BOTH THE PARTIES THAT GROUND NO.1 WHICH IS ON THE ISSUE OF DELETION OF RS.2 16 439/- ON ACCOUNT O F GREEN LEAF CESS PAID IS COVERED BY THE JURISDICTIONAL HIGH COURTS DECISION IN THE CAS E OF AFT INDUSTRIES LTD. VS- CIT 270 ITR 167. IN VIEW OF THE ABOVE GROUND NO.1 TAKEN BY THE REVENUE IS REJECTED. 5. IN GROUND NO.2 THE REVENUE IS DISPUTING ALLOWAN CE OF DEDUCTION U/S 35(1)(II) OF THE IT ACT ON ACCOUNT OF SUBSCRIPTION PAID TO TEA R ESEARCH ASSOCIATION. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. WE FIND THAT THE LD. CIT(A) HAS DIRECTED AO TO ALLOW THE CLAIM OF THE APPELLANT AFTER VERIFICATION OF DOCUMENTS. IT IS ALSO NOT DISPUTED THAT NOTIFICATION FOR EXEMPTION TO THE TEA RESEARCH ASSOCIATION KOLKATA WAS ISSUED ON 13 TH MAY 2009 BY WHICH THE APPROVAL WAS GIVEN WITH RET ROSPECTIVE EFFECT FROM 1.4.2003. THUS THE ASSESSEE COULD NOT HAVE MADE THE CLAIM U/S 35(1)(II) OF THE ACT AT THE TIME OF FILING OF RETURN OR DURING THE ASSESSME NT PROCEEDINGS. IN THIS VIEW OF THE MATTER WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) ON THIS ISSUE AND CONFIRM THE SAME. THIS GROUND TAKEN BY THE REVENUE IS ALSO REJECTED. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.12.2010. SD/- SD/- . .. . . .. . ! D.K.TYAGI JUDICIAL MEMBER . . . . . .. .% % % % & ! B.K.HALDAR ACCOUNTANT MEMBER. ( (( (& & & &) )) ) DATE: 24.12.2010. R.G.(.P.S.) 3 3 1 04 54*6- COPY OF THE ORDER FORWARDED TO: 1. M/S.THE ETHELBARI TEA CO. (1932) LTD. 24 R.N.MUKH ERJEE ROAD KOLKATA- 700001. 2 THE D.C.I.T. CIRCLE-4 KOLKATA 3. THE CIT 4. THE CIT(A)-IV KOLKATA 5. DR KOLKATA BENCHES KOLKATA 4 0/ TRUE COPY 3(;/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES