Itta/381/2013 Of Commissioner Of Income Tax Ii v. Sri G.k.kabra

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU INCOME TAX APPELLATE TRIBUNAL APPEAL NO.381 OF 2013 DATED:30.8.2013 Between: Commissioner of Income Tax-IIHyderabad … Appellant And G.K. Kabra … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. NO.381 OF 2013 JUDGMENT:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) We have heard the learned counsel appearing for the appellantand gone through the judgment and order of the learned Tribunal. The present appeal is sought to be preferred on the following suggested questions of law: (A)“Whether, on the facts and in the circumstances of the case, theAppellate Tribunal is correct in law in misinterpreting its owndirections in earlier order and holding that the remand was onlyfor the purpose of limited enquiry with reference to purchase ofcylinders?Appellate Tribunal is correct in law in misinterpreting its owndirections in earlier order and holding that the remand was onlyfor the purpose of limited enquiry with reference to purchase ofcylinders? (B)Whether, on the facts and in the circumstances of the case, theAppellate Tribunal is correct in law in holding that the transactionis genuine though for other assessment years under identicalcircumstances and facts, ITAT itself held that the transactionwas sham?Appellate Tribunal is correct in law in holding that the transactionis genuine though for other assessment years under identicalcircumstances and facts, ITAT itself held that the transactionwas sham? (C)Whether, on the facts and in the circumstances of the case, theITAT is correct in law in reviewing that finding of fact given by it inidentical circumstances for other years more so, when there areno change of circumstances for the years under consideration?ITAT is correct in law in reviewing that finding of fact given by it inidentical circumstances for other years more so, when there areno change of circumstances for the years under consideration? (D)Whether, on the facts and in the circumstances of the case, theITAT is correct in law in holding that there is genuine purchaseand loaning of cylinders which are entitled for 100% depreciationdespite the fact that the transaction is sham in nature?”ITAT is correct in law in holding that there is genuine purchaseand loaning of cylinders which are entitled for 100% depreciationdespite the fact that the transaction is sham in nature?” It appears, pursuant to a remand order, the Assessing Officerhas reassessed the income of the respondent - assessee. Thelearned Tribunal earlier directed to find out whether the cylinders wereactually purchased by the assessee or not. The Assessing Officer hasfound that the cylinders purchased by the assessee have not been sold. The Commissioner of Income Tax (Appeals), however, heldotherwise. The learned Tribunal came to a fact finding that thefindings of the Commissioner of Income Tax (Appeals) are based onconjectures and surmises. Therefore, the learned Tribunal came to itsown fact finding that the assessee has indeed purchased cylindersand those cylinders were not sold, as such, depreciation has to beallowed, and it has been allowed. In view of the fact finding of thelearned Tribunal as recorded by us, we do not find any element of lawin this appeal to admit the appeal. Accordingly, the appeal is dismissed. There will be no order asto costs. ________________________ K.J. SENGUPTA, CJ ______________________ K.C. BHANU, J 30.8.2013 bnr