B G Education Trust,, Baroda v. The ACIT., Cent.Circle-2,, Baroda

ITSSA 213/AHD/2004 | misc
Pronouncement Date: 28-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 21320516 RSA 2004
Bench Ahmedabad
Appeal Number ITSSA 213/AHD/2004
Duration Of Justice 6 year(s) 6 month(s) 9 day(s)
Appellant B G Education Trust,, Baroda
Respondent The ACIT., Cent.Circle-2,, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 10-06-2008
Date Of Final Hearing 20-01-2011
Next Hearing Date 20-01-2011
Assessment Year misc
Appeal Filed On 19-07-2004
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH JM AND D.C.AGRAWAL AM B. G. EDUCATION TRUST VIP ROAD BARODA. VS. ASSTT. CIT CEN. CIR.2 BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI BHAVIN MARFATIA AR RESPONDENT BY:- SHRI R. K. DHANESTA SR.DR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- (1) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN REJECTIN G THE CONTENTION OF THE APPELLANT THAT THE AO HAS ERRED I N FACT AND IN LAW IN INVOKING THE PROVISIONS OF CHAPTER XIVB OF T HE INCOME- TAX ACT 1961 (THE ACT) BY VIRTUE OF A NOTICE U/S 1 58BC WHICH IS DEFECTIVE IN ITS FORM AND CONTENTS. IT IS MOST RESPECTFULLY SUBMITTED THAT THE NOTICE I SSUED U/S 158BC OF THE ACT IS DEFECTIVE IN ITS FORM AND CONTE NTS AND THEREFORE THE ENTIRE PROCEEDINGS UNDER CHAPTER XIV B INITIATED BY THE DEFECTIVE NOTICE IS VOID AB INITIO AND IT MA Y BE SO HELD AND THE ASSESSMENT BE ANNULLED. (2) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN NOT APPR ECIATING THE FACT THAT THE AO HAD MADE THE ADDITIONS TO THE UNDI SCLOSED INCOME OF THE APPELLANT WITHOUT VERIFYING WHETHER T HE INCOME SOUGHT TO BE ADDED IS INCLUDED AND IS PART OF THE B OOKS OF ACCOUNTS MAINTAINED IN NORMAL COURSE OF BUSINESS AN D NO IT(SS)A NO.213/AHD/2004 BLOCK PERIOD ENDING ON 20.09.2001. IT(SS)A NO.213/AHD/2007 BLOCK PERIOD ENDING ON 20.09.2001 2 EVIDENCE WAS DETECTED DURING THE COURSE OF SEARCH T O POINT OUT ANY DISCREPANCY IN THE SAME. (3) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMI NG THE ADDITION OF RS.7 79 752/- MADE BY THE AO BY DENYING EXEMPTION U/S 10(23C) OF THE INCOME-TAX ACT 1961 F OR ASST. YEARS 1999-00 AND 2000-01. (4) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMI NG THE ACTION OF THE AO IN CHARGING INTEREST U/S 158BFA(1) OF THE I.T. ACT 1961. 2. IN ADDITION THE ASSESSEE RAISED FOLLOWING ADDIT IONAL GROUND AND PRAYED THAT IT SHOULD BE ADMITTED AS IT IS PURE LE GAL QUESTION: WHETHER PREJUDICE TO GR.NO.3 THE LD. AO ERRED IN F ACT AND IN LAW IN NOT ALLOWING DEPRECIATION TO THE APPELLANT ON THE I NCOME ASSESSED AFTER DISALLOWING EXEMPTION U/S 10(23C) OF THE IT A CT 1961 DESPITE THE FACT THAT IT IS LEGALLY ALLOWABLE UNDER THE ACT. 3. WE HAVE HEARD THE PARTIES AND AFTER CAREFUL CONS IDERING THE ARGUMENTS AND ALSO THE DECISION OF HON. SUPREME COU RT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) WE ADMIT THE ADDITIONAL GROUND. 4. THE LD. AR DID NOT PRESS ANY OTHER GROUNDS ORIGI NALLY TAKEN BY HIM AND HENCE THEY ARE TREATED AS REJECTED. 5. REGARDING ADDITIONAL GROUND THE LD. AR SUBMITTED THAT ONCE INCOME IS COMPUTED AS PER PROVISIONS OF SECTION 28 TO 43D AS BUSINESS INCOME DEPRECIATION SHOULD BE ALLOWED AS PER RULES. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE RESTO RE THE MATTER TO THE FILE OF AO TO CONSIDER TO ALLOW DEPRECIATION AS PER RULES BECAUSE ONCE INCOME IS COMPUTED UNDER THE HEAD BUSINESS AS PER P ROVISIONS OF SECTION 28 TO 43D THE DEPRECIATION ADMISSIBLE AS PER SECTIO N 32 AND RELEVANT RULES IT(SS)A NO.213/AHD/2007 BLOCK PERIOD ENDING ON 20.09.2001 3 SHOULD BE ALLOWED. AS A RESULT APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED BUT FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 28.1.11. SD/- SD/- (MAHAVIR SINGH) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD DATED : 28.1.11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 20/1/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 20/1/ 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..