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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: Shri Mahavir Prasad & Shri Amarjit Singh
आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
This Revenue’s appeal for A.Y. 2009-10, arises from order of the CIT(A)-7, Ahmedabad dated 20-04-2015, in proceedings under section 143(3) r.w.s. 254 of the Income Tax Act, 1961; in short “the Act”.
I.T.A No. 1995/Ahd/2015 A.Y. 2009-10 Page No 2 ACIT vs. Shri Udaykumar Chhabildas Patel
The revenue has raised following grounds of appeal:- “1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.56,60,923/- despite specific provisions of Section 145 A of the Act in support of the addition made by the Assessing Officer and without considering Assessing Officers reasoning that exclusion of CENVAT/VAT receivables from valuation of closing stock would be inconsistent with express provisions of section 145 A of the I.T. Act. 2. On fact and circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the AO. 3. It is, therefore, prayed that the order of the CIT (A) be set side and that of the of the A.O. be restored to the above extent.”
The original assessment u/s. 143(3) was passed on 24th 3. December, 2010 determining total income of Rs. 40578770/- by making disallowance on account of valuation of closing u/s. 145A of the act of Rs. 5563000/-. The department has preferred appeal against the order of the ld. CIT(A) which was restored to the file of assessing officer by the hon’ble ITAT vide its order dated 535/Ahd/2010 dated 30th April, 2013. In the set aside proceedings, the assessing officer has again made disallowance u/s. 145A of the act of Rs. 5660923/- on the ground that assessee has followed exclusive method of valuation instead of inclusive method of valuation as per section 145A. During the course of hearing, ld. counsel has stated that case of the assessee is covered by the decision of hon’ble jurisdictional high court in the case of ACIT vs. Narmada Chematur Petro-chemical (2010) 327 ITR 369 (Guj) on the basis of which the Co-ordinate Bench of the ITAT in respect of case of the assessee the matter was set aside to the ld. CIT(A).
I.T.A No. 1995/Ahd/2015 A.Y. 2009-10 Page No 3 ACIT vs. Shri Udaykumar Chhabildas Patel
We have heard both the sides and perused the material on record. We have also perused the order of the Co-ordinate Bench of the ITAT vide which the assessing officer was directed to follow the direction of hon’ble court which is reproduced:- “4. We have heard the Ld. DR of the Revenue and perused the materials available on record. We find that only grievance of the Revenue is that Ld. CIT(A) erred in law in fact in directing the Assessing Officer to decide the issue u/s. 145A of the Act on the basis of decision of Hon'ble jurisdictional High Court rendered in the case of ACIT v. Narmada Chematur Petrochemicals Ld. (2010) 327 ITR 369 (Guj) and Hon'ble Co-ordinate Bench in respect of earlier year i.e.. AY 2007-08 in assessee's own case (supra) has directed the Assessing Officer, which is reproduced as under:- "... ... The Hon'ble Court has thus held that the AO was not justified in adopting the "gross method" at the time of purchases and the "net method" of valuation at the time of valuation of stock on hand. However, the basic question which is yet to be ascertained is that whether the assessee has adopted "exclusive method" or the "inclusive method". While arguing before us, Id. AR has in subtle manner expressed that only for the purpose of verification of this fact the matter can go back to the AO but only after ascertaining the correct position of law. As far as the legal aspect of this issue is concerned, we have already discussed few case laws hereinabove and, therefore, it is expected from the AO to follow the same only after ascertaining the method of accounting adopted by the assessee in respect of the Duties in question. With these directions, we hereby restore this ground for a fresh adjudication as directed, hence to be treated as allowed but for statistical purposes." We do not find any infirmity into the order passed by Ld. CIT(A) since he has simply directed the Assessing Officer to follow the direction of the Tribunal. Moreover, the Revenue has not demonstrated any change into acts and circumstances in the present case. Hence, this ground of Revenue’s appeal is rejected.”
We observed that the assessing officer has not followed the direction of the Co-ordinate Bench on the basis of above reported decision of jurisdictional high court and he has incorrectly made the aforesaid addition u/s. 145A of the act which is not correct, therefore, after
I.T.A No. 1995/Ahd/2015 A.Y. 2009-10 Page No 4 ACIT vs. Shri Udaykumar Chhabildas Patel
considering the legal findings and the direction of the hon’ble high court, we do not find any error in the order of the ld. CIT(A).
In the result, the appeal of the revenue is dismissed.
Order pronounced in the open court on 16-11-2017
Sd/- Sd/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 16/11/2017 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद