A.C.I.T..,CC-VI,KOLKATA, Kolkata v. M/s. J. K. Tyre & Industries Ltd., Kolkata

ITA 2098/KOL/2009 | 2006-2007
Pronouncement Date: 06-08-2010

Appeal Details

RSA Number 209823514 RSA 2009
Assessee PAN AAACJ6716F
Bench Kolkata
Appeal Number ITA 2098/KOL/2009
Duration Of Justice 7 month(s) 27 day(s)
Appellant A.C.I.T..,CC-VI,KOLKATA, Kolkata
Respondent M/s. J. K. Tyre & Industries Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 06-08-2010
Date Of Final Hearing 28-07-2010
Next Hearing Date 28-07-2010
Assessment Year 2006-2007
Appeal Filed On 10-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH - B KOLKATA ( ) BEFORE . . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . . SHRI C.D. RAO ACCOUNTANT M EMBER . / I.T.A.NO. 2098/KOL/2009 / ASSESSMENT YEAR 2006 - 07 ACIT CC - VI KOLKATA - - - VERSUS - . M/S.J.K.TYRE & INDUSTRIES LTD. 7 COUNCIL HOUSE STREET KOLKATA 1 AAACJ 6716 F ( / A PPELLANT ) ( / RESPONDENT ) / I.T.A.NO.2013/KOL/2009 / ASSESSMENT YEAR 2006 - 07 M/S.J.K.TYRE & INDUSTRIES LTD. 7 COUNCIL HOUSE STREET KOLKATA 1 AAACJ 6716 F - - - VERSUS - . ACIT CC - VI KOLKATA ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE ASSESSEE : SHRI D.S.DAMLE AR / FOR THE DEPARTMENT : SHRI HOMI RAJBANSH DR / ORDER . . SHRI B.R.MITTAL JUDICIAL MEMBER. THESE CROSS APPEALS ARE FILED BY THE DEPARTMENT AND THE ASSESSEE FOR THE ASSESSMENT YEAR 2006 - 07 AGAINST ORDER DT.15.11.2009 OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ON THE FOLLOWING GROUNDS. GROUNDS TAKEN BY THE DEPARTMENT : 1. THAT THE LD. CIT(A) C - 1 KOLKATA HAS ERRED IN DELETING DISALLOWANCE U/S.40A (9) AND RS.12 000 RESPECTIVELY PAID TO SCHOOLS. 2. SECTION 40A(9) HAS NOT ALLOWED SUCH CONTRIBUTION FOR ANY PURPOSE. 3. THAT THE LD. CIT(A) C - 1 KOLKATA HAS ERRED IN DELETING THE DISALLOWANCE OF RS.21 93 91 457 AS PROVISION OF THE ACT APPLICABLE / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 2 DOES NOT PERMIT DEDUCTION OF SAID RS.21 93 91 457 FROM PROFIT OF THE YEAR TO COMPUTE BOOK PROFIT. GROUNDS TAKEN BY THE ASSESSEE : 1. FOR THAT THE LD. CIT(A) WAS WRONG IN CONFIRMING THE DISALLOWANCE OF RS. 11 75 511 MADE BY THE A.O. IN RESPECT OF FOREIGN TRA VEL EXPENSES PERTAINING TO THE WIVE(S) OF THE APPELLANTS VICE CHAIRMAN & MANAGING DIRECTOR / DY. MANAGING DIRECTOR. 2. FOR THAT THE PURPORTED FINDINGS AND/OR REASONS GIVEN BY THE LEARNED CIT(A) FOR UPHOLDING AND/OR NOT DELETING THE ABOVE DISALLOWANCE/AD DITION AND/OR DENYING RELIEF IN RESPECT OF THE MATTER REFERRED TO IN GROUND 1 HERE - IN - ABOVE ARE WHOLLY ERRONEOUS WITHOUT ANY MATERIAL OR EVIDENCE AND CONTRARY TO FACTS AND LAW. 3. THE APPELLANT CRAVES LEAVE TO ADD TO ALTER AMEND AND/OR MODIFY SUBSTIT UTE OR WITHDRAW ANY OF THE AFORESAID GROUND(S) ON OR BEFORE THE HEARING OF THIS APPEAL. 2. FIRSTLY WE TAKE UP THE APPEAL FILED BY THE DEPARTMENT BEING ITA NO.2098/KOL /2009 . 3. IN RESPECT OF GROUNDS NO.1 AND 2 OF THE APPEAL THE LEARNED AR OF THE ASSESSE E SUBMITTED THAT THE LEARNED CIT(A) HAS ALLOWED THE RELIEF BY FOLLOWING THE ORDER OF THE ITAT KOLKATA BENCH IN ASSESSEES OWN CASE FOR THE AYS 1996 - 97 AND 2000 - 01 WHICH HAVE BEEN FURTHER CONSIDERED BY THE ITAT IN THE DEPARTMENTS APPEAL FILED FOR THE AY S 2003 - 04 TO 2005 - 06 IN ITA NO.624 2088/KOL/2007 AND ITA NO.1257/KOL/2008 VIDE ORDER DT.29.10.2009 AND THE ORDER OF THE LEARNED CIT(A) WAS CONFIRMED. THE LEARNED AR OF THE ASSESSEE FILED A COPY OF THE SAID ORDER OF THE TRIBUNAL DT.29.10.2009 TO SUBSTANTIA TE HIS SUBMISSION. THE LEARNED DR HA S NOT DISPUTED THE ABOVE FACTS SAVE AND EXCEPT RELYING ON THE ORDER OF THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND THE SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AND ALSO THE ORDER OF THE TRIBUNAL DT.29.10.2009 (SUPRA). WE OBSERVE THAT THE FACTS ARE IDENTICAL IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE RESPECTFULLY FOLLOWING THE ORDER / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 3 DT.29.10.2009 OF THE TRIBUNAL FOR EARLIER YEARS (SUPRA) WE REJECT THE GROUNDS NO.1 AND 2 OF THE DEPARTMENT BY CONFIRMING THE ORDER OF THE LEARNED CIT(A) IN DELETING DISALLOWANCE MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 40A(9) OF THE INCOME - TAX ACT 1961. 5. IN RESPECT OF GROUND NO.3 OF THE APPEAL THE ASSESSING OFFICER HAD DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT SIMILAR CLAIM OF THE ASSESSEE WAS DISALLOWED IN THE ASSESSMENT FOR THE AYS 1997 - 98 TO 2004 - 05. HOWEVER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY THE LEARNED CIT(A) HA S ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE AYS 2000 - 01 AND 1997 - 98. HENCE THE DEPARTMENT IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 6. DURING THE COURSE OF HEARING THE LEARNED DR SUBMITTED THAT SECTION 115JB AS APP LICABLE TO THE ASSESSMENT YEAR UNDER CONSIDERATION IN RESPECT OF REDUCING THE RESERVE CREATED BY THE ASSESSEE FOR THE PURPOSE OF COMPUTING BOOK PROFIT ARE DIFFERENT AS IN THE EARLIER AYS WHICH HAVE BEEN FOLLOWED BY THE LEARNED CIT(A). HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION OF THE AMOUNT OF RESERVES ALLOWED TO BE REDUCED AS PER CLAUSE (I) OF EXPLANATION 1 OF SECTION 115JB(2) OF THE ACT. HOWEVER THE LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE L EARNED CIT(A). HE FURTHER SUBMITTED THAT THE TRIBUNAL VIDE ITS ORDER DT.29.10.2009 (SUPRA) ALSO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING ITS EARLIER ORDERS FOR THE AYS 1989 - 90 1997 - 98 2000 - 01 TO 2002 - 03. THE LEARNED AR OF THE ASSESSEE FURT HER SUBMITTED THAT N THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE TRANSFERRED RS.2657.34 LAKHS OUT OF ITS REVALU ATION RESERVE TO THE PROFIT & LOSS ACCOUNT. IN COMPUTATION OF BOOK PROFIT U/S.115JH THE ASSESSEE CLAIMED EXCLUSION OF ONLY RS.2193.91 LAKHS UNDER CLAUSE (I) OF EXPLANATION 1 TO SECTION 115JB OF THE ACT. THE ASSESSEE ALSO FILED A CHART GIVING THE DETAILS OF THE RESERVES CREATED PERTAINING TO REVALUATION PRIOR TO 1.4.1997 AND THE RESERVE PERTAINING TO REVALUATION AFTER 1.4.1997.HE SUBMITTE D THAT THE ORDER OF THE LEARNED CIT(A) BE CONFIRMED BY FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL. / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 4 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES. WE HAVE ALSO GONE THROU GH THE PROVISIONS OF SECTION 115JB OF THE ACT. WE HAVE ALSO CONSIDERED THE EARLIER ORDER OF THE TRIBUNAL DT.29.10.2009 (SUPRA) PLACED ON RECORD. HOWEVER THE ASSESSEE HAS NOT PLACED THE COPY OF THE EARLIER ORDERS OF THE TRIBUNAL FOR THE AYS 1989 - 90 1997 - 9 8 2000 - 01 TO 2002 - 03 WHICH WERE FOLLOWED BY THE TRIBUNAL WHILE DECIDING THE ABOVE GROUND FOR THE AYS 2003 - 04 TO 2005 - 06 BY ITS AFORESAID ORDER DT.29.10.2009. WE OBSERVE THAT THE AUTHORITIES BELOW HAVE NOT GIVEN ANY REASON AND/OR ANY COMPUTATION OF THE RES ERVES CREATED BY THE ASSESSEE. WE CONSIDER IT PRUDENT TO REPRODUCE CLAUSE (I) OF EXPLANATION 1 TO SECTION 115JB WHICH READS AS UNDER : EXPLANATION [ 1 ] . FOR THE PURPOSES OF THIS SECTION BOOK PROFIT MEANS THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS A CCOUNT FOR THE RELEVANT PREVIOUS YEAR PREPARED UNDER SUB - SECTION (2) AS INCREASED BY ( A ) THE AMOUNT OF INCOME - TAX PAID OR PAYABLE AND THE PROVISION THEREFOR; OR ( B ) THE AMOUNTS CARRIED TO ANY RESERVES BY WHATEVER NAME CALLED [ OTHER THAN A RESERVE SP ECIFIED UNDER SECTION 33AC ; OR ( C ) THE AMOUNT OR AMOUNTS SET ASIDE TO PROVISIONS MADE FOR MEETING LIABILITIES OTHER THAN ASCERTAINED LIABILITIES; OR ( D ) THE AMOUNT BY WAY OF PROVISION FOR LOSSES OF SUBSIDIARY COMPANIES; OR ( E ) THE AMOUNT OR AMOUNTS OF DIVIDENDS PAID OR PROPOSED ; OR ( F ) THE AMOUNT OR AMOUNTS OF EXPENDITURE RELATABLE TO ANY INCOME TO WHICH SECTION 10 (OTHER THAN THE PROVISIONS CONTAINED IN CLAUSE ( 38 ) THEREOF) OR SECTION 11 OR SECTION 12 APPLY; OR] ( G ) THE AMOUNT OF DEPRECIATION ] ( H ) THE AMOUNT OF DEFERRED TAX AND THE PROVISION THEREFOR IF ANY AMOUNT REFERRED TO IN CLAUSES ( A ) TO ( H ) IS DEBITED TO THE PROFIT AND LOSS ACCOUNT AND AS REDUCED BY ( I ) THE AMOUNT WITHDRAWN FROM ANY RESERVE OR PROVISION (EXCLUDING A RESERVE CREATED BEFORE THE 1ST DAY OF APRIL 1997 OTHERWISE THAN BY WAY OF A DEBIT TO THE PROFIT AND LOSS ACCOUNT) IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCOUNT: PROVIDED THAT WHERE THIS SECTION IS APPLICABLE TO AN ASSESSEE IN ANY PREVIOUS YEAR THE AMOUNT WITHDRAWN FROM RESERVES CREATED OR PROVISIONS MADE IN A PREVIOUS YEAR RELEVANT TO THE ASSESSME NT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL 1997 SHALL NOT BE REDUCED FROM THE BOOK PROFIT UNLESS THE BOOK PROFIT OF SUCH YEAR HAS BEEN INCREASED BY THOSE RESERVES OR PROVISIONS (OUT OF WHICH THE SAID AMOUNT WAS WITHDRAWN) UNDER THIS EXPLANATION O R EXPLANATION BELOW THE SECOND PROVISO TO SECTION 115JA AS THE CASE MAY BE; / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 5 XX XX XX XX XX XX WE OBSERVE THAT THE SAID CLAUSE (I) ALONG WIT H THE PROVISO WAS SUBSTITUTED BY FINANCE ACT 2002 WITH RETROSPECTIVE EFFECT FROM 1.4.2001 AND P RIOR TO THEIR SUBSTITUTION CLAUSE (I) AND THE PROVISO READ AS UNDER : (I) THE AMOUNT WITHDRAWN FROM ANY RESERVES OR PROVISIONS IF ANY SUCH AMOUNT IS CREDITE D TO THE PROFIT AND LOSS ACCOUNT : PROVIDED THAT WHERE THIS SECTION IS APPLICABLE TO AN ASSESSEE IN ANY PREVIOUS YEAR (INCLUDING THE RELEVANT PREVIOUS YEAR) THE AMOUNT WITHDRAWN FROM RESERVES CREATED OR PROVISIONS MADE IN A PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL 2001 SHALL NOT BE REDUCED FROM THE BOOK PROFIT UNLESS THE BOOK PROFIT OF SUCH YEAR HAS BEEN INCREASED BY THOSE RESERVES OR PROVISIONS (OUT OF WHICH THE SAID AMOUNT WAS WITHDRAWN) UNDER THIS EXPL ANATION; OR WE OBSERVE THAT THE LEARNED DR HAS RIGHTLY POINTED OUT THAT THE TRIBUNALS ORDER FOR THE ASSESSMENT YEAR 1989 - 90 1997 - 98 2000 - 01 MAY NOT BE APPLICABLE IN THE ASSESSMENT YEAR UNDER CONSIDERATION WHILE REDUCING THE RESERVES CREATED BY THE ASS ESSEE BY REVALUATION OF ITS ASSETS. WE AGREE THAT THE AUTHORITIES BELOW SHOULD HAVE CONSIDERED THE DETAILS BEFORE CONSIDERING WHETHER THE CLAIM OF THE ASSESSEE HAS TO BE DISALLOWED OR TO BE ALLOWED WHILE COMPUTING THE BOOK PROFIT FOR THE PURPOSE OF SECTION 115JB OF THE ACT. THEREFORE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFRESH BY A REASONED ORDER AFTER CONSIDERING THE DETAILS AS MAY BE FURNISHED BY T HE ASSESSEE AND AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE GROUND NO.3 OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. 8. NOW WE TAKE UP THE APPEAL FILED BY THE ASSESSEE BEARING ITA NO . 2013/KOL/2009 . 9. AT THE TIME OF HEARING THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ABOVE ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE EARLIER YEARS AND THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF ASSESSING OFFICER FOR HIS FRESH / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 6 CONSIDERATION. TO SUBSTANTIATE HIS SUBMI SSION THE LEARNED AR OF THE ASSESSEE REFERRED TO TRIBUNAL ORDER DT.29.10.2009 (SUPRA) AND SUBMITTED THAT THE FACTS IN THE ASSESSMENT YEAR UNDER CONSIDERATION ARE IDENTICAL AS IN THE ASSESSMENT YEAR S 2003 - 04 TO 2005 - 06. HOWEVER THE LEARNED DR SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 10. IT IS RELEVANT TO STATE THAT AT THE TIME OF HEARING ATTENTION OF THE LEARNED AR OF THE ASSESSEE WAS DRAWN TO THE FACT THAT THE TRIBUNAL RESTORED THIS ISSUE FIRSTLY FOR THE ASSESSMENT YEAR 2000 - 01 AND 2002 - 03 VIDE I TS ORDER DT.28.3.2007 AND IN SUBSEQUENT AYS THE SAME ORDER HAS BEEN FOLLOWED BY THE TRIBUNAL TO RESTORE THE ISSUE TO THE ASSESSING OFFICER WITH DIRECTION TO DECIDE IT AFRESH. THE BENCH PUT A QUERY TO THE LEARNED AR OF THE ASSESSEE AS TO WHETHER THE ASSESSI NG OFFICER HAS DECIDED THE SAID ISSUE PURSUANT TO THE DIRECTION OF THE TRIBUNAL. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS NOT PASSED ANY ORDER TILL DATE. HOWEVER HE REITERATED THAT THE REASONING GIVEN BY THE AUTHORITIES BELO W TO DISALLOW THE FOREIGN TRAVEL EXPENSES IN THE ASSESSMENT YEAR UNDER CONSIDERATION ARE IDENTICAL AS TAKEN IN THE EARLIER AYS. THE LEARNED DR ALSO COULD NOT CONTROVERT THE ABOVE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE. 11. WE HAVE CONSIDERED THE S UBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AND THE EARLIER ORDER OF THE TRIBUNAL DT.29.10.2009 AND ALSO THE ORDERS OF THE AUTHORITIES BELOW. WE CONSIDER IT PRUDENT TO REPRODUCE PARAGRAPHS 4 AND 4.1 OF THE EARLIER ORDER OF THE TRIBUNAL DT.29.1 0.2009 (SUPRA) AS UNDER : 4. GROUNDS NO. 1 & 2 FOR A.YS. 2003 - 04 & 2004 - 05 AND GROUND NO.1 FOR A.Y. 2005 - 06 RELATE TO DISALLOWANCE OF FOREIGN TRAVEL EXPENSES PERTAINING TO THE WIVES OF MANAGING/DY.MANAGING DIRECTORS OF THE ASSESSEE - COMPANY. THE ASSESSE E - COMPANY CLAIMED TO HAVE INCURRED SUMS OF RS.10 68 679/ - RS.8 96 087/ - AND RS.6 65 431/ - IN RESPECT OF FOREIGN TRAVEL OF THE WIVES OF THE MANAGING/DY.MANAGING DIRECTORS DURING ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 RESPECTIVELY WHO ACCOMPANIED THEIR RESPE CTIVE HUSBANDS ON FOREIGN TOURS FOR THE PURPOSE OF THE COMPANYS BUSINESS IN / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 7 ACCORDANCE WITH THE PRACTICE ABROAD AND IN KEEPING WITH MODERN TIMES AND SOCIAL CUSTOM. THE A.O. DISALLOWED THE EXPENDITURE ON THE GROUND THAT THE WIVES WERE NOT EMPLOYEES OF THE ASSESSEE - COMPANY AND HENCE THE EXPENSES ON THEIR FOREIGN TOUR BORNE BY THE COMPANY CANNOT BE ALLOWED AS BUSINESS EXPENDITURE OF THE COMPANY. ON APPEAL THE C.I.T.(A) UPHELD THE DISALLOWANCE FOR EACH OF THE ASSESSMENT YEARS UNDER APPEAL. 4.1. WE FIND THA T IDENTICAL ISSUE CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN THE CASE OF THE ASSESSEE - COMPANY ITSELF FOR ASSESSMENT YEARS 2001 - 02 AND 2002 - 03. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS MADE BY THE RIVAL PARTIES THE TRIBUNA L VIDE ITS ORDER DATED 28/3/2007 IN ITA NO.1301/KOL/05 FOR A.Y. 2001 - 02 HAS RESTORED THE MATTER BACK TO THE FILE OF A.O. TO DECIDE THE ISSUE AFRESH. WHILE HOLDING SO THE TRIBUNAL RELIED ON THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 199 5 - 96 IN I.T.A. NO. 83/KOL/2005 ORDER DATED 01/08/2008 WHEREIN IT HAS BEEN HELD THAT THE ASSESSEE FAILED TO BRING ON RECORD ANY MATERIAL TO SHOW THAT THE EXPENDITURE INCURRED ON FOREIGN TOUR OF THE WIFE OF THE MANAGING DIRECTORS OF THE ASSESSEE - COMPANY WAS IN ACCORDANCE WITHY PRACTICE OF MODERN AND SOCIAL BUSINESS NORMS OF THE FOREIGN COUNTRIES. IT WAS FURTHER HELD THAT THE OBSERVATION OF THE A.O. THAT THE WIFE OF THE MG. DIRECTOR WAS NOT AN EMPLOYEE OF THE COMPANY WAS NOT SUFFICIENT TO MAKE SUCH DISALLOWA NCE. ON THE ABOVE OBSERVATIONS THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF A.O. FOR DECISION AFRESH. FOR THE YEARS UNDER APPEAL THE ASSESSEE COULD NOT IMPROVE THE MATTER FURTHER. THEREFORE KEEPING IN VIEW THE FACTS OF THE CASE AND RESPECTFULL Y FOLLOWING THE DECISIONS OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR ALL THE ASSESSMENT YEARS UNDER APPEAL WHO SHALL DECIDE THE SAME AFRESH IN THE LIGHT OF THE OBSERVATIONS MADE BY THE TRIBUNAL IN EARLIER YEARS AND IN ACCORDANCE WITH LAW AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 12. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL AND IN ABSENCE OF ANY OTHER MATERIAL ON RECORD WE RESPECTFULLY FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME AFRESH AS PER / I.T.A.NO.2098/KOL/2009 / I.T.A.NO.2013/KOL/2009 [CROSS APPEALS) 8 OBSERVATIONS OF THE TRIBUNAL IN THE EARLIER YEARS AND IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE THE GROUND TAKEN BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESUL T THE APPEAL OF THE DEPARTMENT BEING ITA NO. 2098/KOL/2009 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE APPEAL OF THE ASSESSEE BEING ITA NO. 2013.KOL/2009 IS ALLOWED FOR STATISTICAL PURPOSE. THIS ORDER IS PRONOUN CED IN OPEN COURT ON DT. 06.08.2010 SD/ - SD/ - ( . . ) (C.D. RAO) ACCOUNTANT MEMBER ( . . ) ( B.R.MITTAL ) JUDICIAL MEMBER ( ) DATE : 06.08.2010 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE : M/S.J.K.TYRE & INDUSTRIES LTD. 7 COUNCIL HOUSE STREET KOLKATA 1 2 THE DEPARTMENT : ACIT CC - VI KOLKATA 3. / THE CIT 4. ( )/ THE CIT(A) 5. / DR KOLKATA BENCH 6. GUARD FILE . / TRUE COPY / BY ORDER / DEPUTY REGISTRAR . ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY.