M/s Hero Cycles Ltd.,, Ludhiana v. DCIT,, Ludhiana

ITA 83/CHANDI/2010 | 1997-1998
Pronouncement Date: 28-05-2010 | Result: Dismissed

Appeal Details

RSA Number 8321514 RSA 2010
Bench Chandigarh
Appeal Number ITA 83/CHANDI/2010
Duration Of Justice 4 month(s) 9 day(s)
Appellant M/s Hero Cycles Ltd.,, Ludhiana
Respondent DCIT,, Ludhiana
Appeal Type Income Tax Appeal
Pronouncement Date 28-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 28-05-2010
Date Of Final Hearing 10-05-2010
Next Hearing Date 10-05-2010
Assessment Year 1997-1998
Appeal Filed On 18-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES (A) BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS.SUSHMA CHOWLA JUDICIAL MEMBER ITA 83/CHD/2010 ASSESSMENT YEAR : 1997-98 M/S HERO CYCLES LTD. V D.C.I.T. CIRCLE-V LUDHIANA. LUDHIANA. PAN : AAACH-4073P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH AGGARWAL RESPONDENT BY: SHRI S.P.KHUTAN ORDER PER G.S.PANNU AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(APPEALS) DATED 16.11.2009 PERTAINING TO THE ASSESSMENT YEAR 1997-98 WHEREIN THE ONLY GROUND OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER : THAT THE LEARNED CIT(APPEALS)-II ERRED IN LAW IN HOLDING THAT APPEAL DID NOT LIE WITH COMMISSIONER (APPEALS) IN APPEAL NO. 40/IT/2003 AGAINST THE ORDE R PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-V LUDHIANA TO GIVE EFFECT TO AN APPELLATE O RDER IN APPEAL NO. 40/IT/2003 MADE BY THE CIT(APPEALS) O N THE ISSUE OF DEDUCTION CLAIMED U/S 35(1)(IV) OF INC OME TAX ACT. 2. IN THESE PROCEEDINGS THE ASSESSEE PREFERRED APP EAL BEFORE THE CIT(APPEALS) IN RELATION TO AN ORDER PAS SED BY THE ASSESSING OFFICER U/S 143(3) READ WITH SECTION 254 OF THE INCOME TAX ACT 1961 ( IN SHORT 'THE ACT') DATED 20.10.200 8 WHEREBY THE 2 ASSESSING OFFICER GAVE APPEAL EFFECT TO AN ORDER PA SSED BY THE TRIBUNAL IN ITA NOS.386 & 298/CHANDI/2001 DATED 20. 07.2007. 3. BEFORE THE CIT(APPEALS) ASSESSEE CONTENDED THAT THE ASSESSING OFFICER FAILED TO CONSIDER THE RELIEF ON ACCOUNT OF DEDUCTION CLAIMED U/S 35(1)(IV) OF THE ACT AMOUNTIN G TO RS.3 02 78 500/- WHICH WAS ALLOWED BY THE CIT(APPEA LS) VIDE ORDER DATED 6.10.2005 IN APPEAL NO. 40/IT/2003. TH E CIT(APPEALS) FOUND THAT GRIEVANCE OF THE ASSESSEE D ID NOT EMANATE FROM THE ORDER IN APPEAL WHICH WAS AN ORDER PASSED BY THE ASSESSING OFFICER GIVING APPEAL EFFECT TO THE O RDER OF THE TRIBUNAL DATED 20.07.2007 (SUPRA). IN SUPPORT THE CIT(APPEALS) MADE THE FOLLOWING DISCUSSION IN PARA 3 OF THE IMPU GNED ORDER : I HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE LEARNED COUNSEL FOR THE APPELLANT AND PERUSED THE RELEVANT RECORD. THOUGH THE LEARNED COUNSEL HAS CONTENDED A S ABOVE THIS GROUND OF APPEAL CANNOT BE ALLOWED. TH E ISSUE IN QUESTION IS EMANATING FROM THE ORDER PASSE D BY THE A.O. GIVING APPEAL EFFECT TO THE ORDER OF THE L EARNED CIT(APPEALS) ON 20.03.2002. NOW AGAINST THIS ORDER OF THE ASSESSING OFFICER THE APPELLANT COMPANY IS STA TED TO HAVE FILED AN APPEAL WHICH WAS DECIDED BY MY PREDECESSOR IN APPEAL NO. 40/IT/CIT(A)-I/02/03 DATE D 6.10.2005. IT IS THE REQUEST OF THE APPELLANT THAT WHILE GIVING EFFECT TO THE ORDER OF THE HON'BLE ITAT DATE D 20.07.2007 WHICH IS UNDER APPEAL HERE THE A.O. HAS NOT TAKEN THE EFFECT OF CIT(APPEALS)S ORDER DATED 6.10 .2005 MENTIONED ABOVE. AS BROUGHT OUT IN THE WRITTEN SUBMISSIONS OF THE LEARNED COUNSEL ALSO THE DEPARTM ENT DID NOT CONTEST THE FINDINGS OF THE CIT(APPEALS) GI VEN IN RESPECT OF THE ISSUE WITH REGARD TO DEDUCTION U/S 35(1)(IV) OF THE ACT. THEREFORE THIS ORDER HAD BE COME FINAL WITH THE ORDER OF THE A.O. GIVING EFFECT TO T HE EARLIER APPELLATE ORDER AGAINST WHICH THE APPEAL WAS DECIDE D BY THE LEARNED CIT(APPEALS) VIDE ORDER DATED 6.10.2005 MENTIONED ABOVE. THEREFORE THE ISSUE IN QUESTION HAD ARISEN OUT OF THE APPEAL EFFECT ORDER PASSED BY THE A.O. DATED 20.3.2002. ACCORDINGLY THIS ISSUE COULD ONLY BE TAKEN UP IN THE APPEAL DECIDED BY MY PREDECESSOR VI DE HIS ORDER DATED 6.10.2005. HOWEVER THAT HAVING NOT BEEN CHALLENGED THE APPELLANT CANNOT BE SAID TO BE JUSTIFIED TO RAISE THIS ISSUE NOW AT THE TIME OF TH E A.O. GIVING APPEAL EFFECT TO THE ORDER OF THE HON'BLE IT AT DATED 20.7.2007. THIS GROUND OF APPEAL BEING NOT EMANATING FROM THE ORDER UNDER APPEAL IS THEREFORE NOT 3 MAINTAINABLE. THE GROUND OF APPEAL IS THEREFORE DISMISSED. ACCORDINGLY THE GROUND OF APPEAL OF THE ASSESSEE W AS DISMISSED AS NOT-MAINTAINABLE. AGAINST THIS DECISION THE GR OUND OF APPEAL RAISED BY THE ASSESSEE HAS BEEN CONSIDERED. 4. BEFORE US LEARNED COUNSEL FOR THE ASSESSEE FAIR LY CONCEDED THE FACTUAL MATRIX BROUGHT OUT BY THE CIT( APPEALS) BUT CONTENDED THAT THE GRIEVANCE OF THE ASSESSEE WAS JU STIFIED IN AS MUCH AS THE RELIEF GRANTED BY THE CIT(APPEALS) VIDE HIS ORDER DATED 6.10.2005 HAS NOT BEEN ALLOWED BY THE ASSESSI NG OFFICER TILL DATE. 5. IN OUR VIEW THE CIT(APPEALS) MADE NO MISTAKE IN HOLDING THE GROUND RAISED BY THE ASSESSEE AS NOT MAINTAINAB LE SINCE IT DID NOT EMANATE FROM THE ORDER OF THE ASSESSING OFF ICER DATED 20.10.2008 WHICH IS SOUGHT TO BE ASSAILED IN THE PR ESENT PROCEEDINGS. HOWEVER IN SO FAR AS THE MERITS OF AS SESSEE'S PLEA ARE CONCERNED THE ASSESSEE IS AT LIBERTY TO APPROA CH THE ASSESSING OFFICER IN ACCORDANCE WITH LAW. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED SUBJECT TO AFORESAID OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 28-05-2010. SD/- SD/- (SUSHMA CHOWLA) ( G.S.PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 28 TH MAY 2010. POONAM COPY TO : THE APPELLANT/THE RESPONDENT/THE CIT (A)/ THE CIT/THE DR.