D.b. Income Tax Appeal v. The Acit, Udaipur

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. Income Tax Appeal No. 22/2010 Hindustan Zinc Ltd. versus The ACIT, Udaipur Date of Order : 14[th] May, 2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAINHON'BLE MR. JUSTICE ARUN BHANSALI Mr. Anjay Kothari, for the appellant.Mr. K.K. Bissa, for the respondent. Heard the learned counsel for the parties. This income tax appeal was admitted on 12[th ] 2. May, 2010 on the following substantial questions of law:- “1. Whether the Tribunal was right in reversing the order of CIT (Appeal) dated 21.9.2007 by holding that order passed by the Assessing Officer could not be construed as an order to have been passed under Section 154 of the Act when even according to Assessing Officer the order in question was passed under Section 143(3) read with Section 154 and 250 while computing the tax effect in respect of the assessment year in question? 2. Whether the Tribunal was justified in deciding the appeal in relation to the assessment year in question without any justifiable reasons and by taking contrary view taken on the same issue in respect of the two assessment years in the appeals of appellant?” 3.Briefly stated the facts of the case are that assessee claimed certain expenses in the return for the Assessment Years 2001-02, 2002-03, 2003-04 on account of capital expenditure, excess provision/liability written back, Mine Development Expenses, contribution to Group Gratuity Fund, bad debt written off, etc. as mentioned in the assessment order dated 16[th] May, 2007. The said claims were rejected by the Assessing Officer. Thereafter, the assessee preferred an appeal. The appellate Authority allowed all the claims of the assessee. Thereafter, Assessing Officer passed a fresh order whereby he allowed all the expenses claimed by assessee as per direction of the Appellate Authority. However, instead of reducing the income of the assessee, Assessing Officer restricted the income of the assessee to the returned income vide order dated 16[th] May, 2007, in respect of Assessment Year 2003-04. 4.Being aggrieved with the said order dated 16[th ]May, 2007, the assessee preferred an appeal, which was allowed by the Commissioner Income Tax (Appeal), Udaipur, vide order dated 21[st] September, 2007. Thereafter, the revenue preferred appeal before Income Tax Tribunal. The Tribunal allowed the appeal of the Revenue vide order dated 21[st] March, 2009, hence, assessee/appellant has preferred this appeal. 5.During the course of arguments, the learned counsel for both the parties admitted that three appeals i.e. D.B. Income Tax Appeal Nos. 155/2008, 89/2011 and 167/2011 preferred by Revenue relating to the Assessment Year 2000-2001, 2001-2002 and 2002-2003 involving similar issues, which were decided in favour of the appellant by the Tribunal, have been dismissed and the order of Division Bench of this Court dated 07.10.2009 in D.B. Income Tax Appeal No. 155/2008 has been affirmed by the Hon'ble Apex Court while dismissing the Special Leave to Appeal No. 9828/2010 [CIT, Udaipur versus M/s. Hindustan Zinc Ltd.] vide order dated 16[th] July, 2010, filed by Revenue. Learned counsel for the parties, therefore, conceded that the present appeal is fully covered by decision of co-ordinate Bench of this Court in D.B. Income Tax Appeal Nos. 155/2008, 89/2011 and 167/2011, which has also been affirmed by the Hon'ble Apex Court. 6.In view of joint statement of the learned counsel for the parties, the present appeal filed by the assessee is allowed. The impugned order passed by the Income Tax Appellate Tribunal is set aside. Both the questions framed in the present appeal are answered and decided in favour of the assessee/appellant. (Arun Bhansali),J. (Narendra Kumar Jain),J. Mak/- 8 6.In view of joint statement of the learned counsel for the parties, the present appeal filed by the assessee is allowed. The impugned order passed by the Income Tax Appellate Tribunal is set aside. Both the questions framed in the present appeal are answered and decided in favour of the assessee/appellant. (Arun Bhansali),J. (Narendra Kumar Jain),J. Mak/- 8 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Anil Makawana Jr. P.A.