D.b.income Tax Appeal v. M/S G.p.taparia, Nokha

D.B.INCOME TAX APPEAL NO.155/2007CIT, Bikaner Vs. M/s G.P.Taparia, Nokha DATE OF JUDGMENT: 19[th] February 2014 HON’BLE MR. JUSTICE DINESH MAHESHWARIHON’BLE MR. JUSTICE BANWARI LAL SHARMA Mr.K.K.Bissa for the appellant Mr.Lokesh Mathur for the respondent BY THE COURT: This appeal by the Revenue against the order dated03.08.2004, as passed by the Income Tax Appellate Tribunal,Jodhpur Bench, Jodhpur [‘ITAT’] in ITA Nos. 11 & 12/JDPR/2000 forthe Assessment Year 1994-95 has been admitted for consideration on the following substantial questions of law:- “(i)Whether on the fact and in the circumstances of the caseand in law, the learned Tribunal was right in holding all the cashtransactions between the assessee and its sister concernsituated under the same roof and the partners being members ofthe family and the principal partner of both the firms being thesame person, beyond the purview of Sec.269-SS and 269(5) ofthe Income Tax Act even if interest was charged on suchtransactions? (ii)Whether in the facts and circumstances of the case, if theanswer to question No.1 is in negative, the Tribunal was justifiedin holding that no penalty was still leviable?” The impugned order dated 03.08.2004 has been passed by the ITAT in this case with reference to its order dated 27.02.2004passed in relation to the same assessee in ITA Nos.2139 &2140/JP/96 for the Assessment Year 1993-94. It is informed that thesaid order dated 27.02.2004 has been affirmed by this Court whiledismissing the appeal filed by the Revenue, being D.B. Income TaxAppeal No.78/2006, decided on 21.08.2008. It is also informed by the learned counsel for the parties thatthe said order dated 27.02.2004 was passed by the ITAT on thebasis of its order dated 27.03.2002, as passed in ITA No.2145/1996 which was considered and affirmed by this Court in D.B. Income TaxAppeal No.80/2002, decided on 26.07.2007. The said D.B. Income Tax Appeal No. 78/2006 relating to the same assessee for the Assessment Year 1993-94 has beendismissed by this Court with a short order that reads as under:- “Heard learned counsel for the parties. The learned Tribunal, in this case, has passed theimpugned judgment on the basis of its other judgment dated27.03.2002, passed in Income Tax Appeal No.2145 of 1996 –ITO Vs. Maheshwari Nirman Udhyog. We are informed that,thatjudgment has been affirmed, in appeal, by this Court on26.07.2007, in the judgment reported in 211 CTR 579. Thisposition is not disputed by the learned counsel for the revenue. That being the position, to say the least, the controversy,involved in the present case, is squarely covered by thejudgment of this Court, reported in Commissioner of Income TaxVs. Maheshwari Nirman Udhyog, and appeal is decided againstthe revenue, and in favour of the assessee. Resultantly, the appeal, is dismissed, for the aforesaidreasons.” In fact, it is noticed that the present appeal was ordered to beconnected with DB Income Tax Appeal No.78/2006 but appears tohave got de-linked. The aforesaid being the position and the relevant issueshaving been considered and decided by this Court in the aforesaidD.B. Income Tax Appeal No.80/2002; and following which, the otherappeal of the Revenue concerning the same assessee and said tobe involving akin issues, being D.B. Income Tax Appeal No. 78/2006,having also been dismissed by this Court, we are clearly of the viewthat the framed questions in this appeal are required to be answeredagainst the Revenue and in favour of the assessee. Consequently, this appeal stands dismissed. (BANWARI LAL SHARMA),J. (DINESH MAHESHWARI),J.