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TMI Blog2015 (5) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... ation) of the assessee company and the statement showing the details in respect of sum referred to in clause (a), (c) and (d) of section 43B of the Act as required under the audit provisions. Thus unpaid excise duty pertains to earlier years and no claim for this excise duty is made, the disallowance of excise duty is not possible. The AO has taken a correct view while framing assessment and revision order passed by CIT u/s. 263 is without jurisdiction. The assessment order is neither erroneous nor prejudicial to the interest of revenue. Stock in transit - Held that:- The facts are that the assessee explained from the paper book wherein the copies of Schedule 8 (inventories) of the annual accounts for the FYs 2006-07, 2007-08 and 2008-09 along with copies of journal entries relating to ‘stores in transit’ for the respective years are filed. The assessee has also filed copies of ledger account of raw material and stores and spares at page 14 of the assessee’s paper book where copy of schedule 12 (consumption of raw material and components including stores and spares) of the annual accounts for the FY 2007-08 relevant to AY 2008-09 are filed. We find from the arguments of Ld. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not take any step for stay of the order of the Assessing Officer pursuant to the impugned order of the CIT under section 263 and after having participated in the hearing of the assessment proceedings and consequently preferring appeal, we think it would not be proper for this Court at this stage to decide issue raised before us. Accordingly, we accept the submission of the learned counsel for the Revenue that the appeal factually has become infructuous but not legally. The provision of the appeal is very exhaustive and all points can be taken including the question of jurisdiction as taken here. We feel that considering all the aspects of the matter no decision should be rendered as if we do not accept contention of Dr. Pal, the appeal preferred by his client against subsequent order of assessment will have to be heard on merit and in that case the question of jurisdiction cannot be raised. In the event, if we do not decide then all points can be decided obviously by the appellate forum. We, therefore, dispose of the present appeal keeping all points open holding that since the regular appeal has already been preferred this appeal has factually become infructuous. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of Smt. Shantibai Vs. CIT (1984) 148 ITR 49 (MP) wherein Hon ble court has observed that just as an appeal being a creature of the statute would not lie unless it is provided by the statute, the right so conferred cannot be taken away merely because some other remedy is also available to the assessee. Ld. Counsel for the assessee, however, contested the claim made by Ld. CIT, DR and stated that Hon ble Calcutta High Court in the case of K. P. Jain, supra, has clearly stated that factually the appeal has become infructuous but not legally. He filed the subsequent clarification in the same case on very date i.e. 12.11.2010 wherein Hon ble High Court has directed the Tribunal to decide all points including the question of jurisdiction. The relevant reads as under: The Court: We direct the learned Tribunal to decide the appeal on all points including the question of jurisdiction which have been raised before us within a period of three months from the date of communication of this order. All parties shall act on a Xerox signed copy of this order on usual undertakings. According to him, on the issue of maintainability of the appeal, the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because alternative remedy is also available to the assessee. This has been answered by Hon'ble Madhya Pradesh High Court in the case of Smt. Shantibai (supra), as cited by Ld. counsel for the assessee, wherein it is held as under:- We may, in this connection, also refer to the decision in Jaipur Udyog Ld. v. CIT (1969) 71 ITR 799 (SC), wherein the Supreme Court clearly pointed out that a provisional assessment does not bind the assessee or the Department. The quantum of tax computed and the levy thereof are not binding upon the assessee and the Revenue. Tax paid pursuant to provisional assessment is liable to be adjusted in the light of the final order in the regular assessment. We may also refer to sub-s. (7) of s. 141, applicable at the relevant time, which has been deleted with effect from April 1, 1971, which prohibited any appeal against a provisional assessment made under sub-s. (1) of s. 141. The reason for prohibiting such an appeal obviously was that such provisional assessment did not bind either the assessee or the Revenue and an appeal is provided against the regular assessment at the end of the assessment proceeding. The prohibition contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uccessive available with law then in force would be preserve to the parties to the suit throughout the career of the suit. Hence, in the present case before us, the appeal filed by assessee against the revision order passed by CIT u/s 263 of the Act, a statutory right is available to the assessee u/s 253(1) of the Income-tax Act and in terms of the same, the appeal filed by the assessee is very much maintainable. The preliminary objection raised by the Revenue is dismissed. 7. The only issue in this appeal of assessee is against the order of CIT revising the assessment framed by AO for the relevant AY 2008-09 for the reason that the assessment is erroneous and prejudicial to the interest of revenue for (i) nondisallowance of unpaid excise duty u/s. 43B of the Act and (ii) goods in transit has not been including in the purchases. For this, assessee has raised following three grounds: 1) That the Commissioner of Income-tax was wrong in holding the Assessment Order for the Assessment Year 2008-09 as allegedly erroneous and prejudicial to the interest of Revenue and in setting aside the said Assessment Order. 2) That the Commissioner of Income-tax failed to appreciate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions. Relevant chart reads as under: NATURE OF LIABILITY PRE-EXISTED ON THE FIRST DAY OF THE PREVIOUS YEAR BUT WAS NOT ALLOWED IN ANY PRECEDING YEAR INCURRED IN THE PREVIOUS YEAR BALANCES PAID DURING THE YEAR 2007-08 NO LONG REQUIRED NOT PAID DURING THE PREVIOUS YR NEW PROVISION PAID ON OR BEFORE DUE DT. OF FURNISHING REF. U/S 139(1) NOT PAID ON OR BEFORE DUE DT. FOR FURNISHING Ref. u/s. 139(1) EXCISEDUTY 4203003.00 614413.00 45000.00 3543590.00 NIL NIL 3543590.00 SALES TAX 18268885.00 NIL NIL 18268885.00 NIL NIL NIL In respect to transit stock the Ld. Counsel for the assessee explained as under: 1. In respect of stores-in-Transit , GRSE at the end of each Financial year, while drawing up its final Accounts for that year, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me were discussed. The CIT subsequently on examination of assessment records noted that assessment order passed by the AO is erroneous and prejudicial to the interest of revenue since the AO has omitted to disallow unpaid excise duty amounting to ₹ 35.43 lacs resulting in under assessment of tax. The assessee explained before the CIT that there is no fresh provision made in respect of unpaid excise duty of ₹ 35.43 lacs. Even now before us, assessee drew our attention to annexure 9 of the Balance Sheet that this amount of unpaid excise duty of ₹ 35.43 lacs pertains to earlier years and no new provision is made. Ld. Counsel for the assessee now before us also filed the copy of assessment order passed in consequence to revision order u/s. 263 of the Act wherein the AO has clearly observed after verifying the records that this excise duty of ₹ 35,43,390/- was actually outstanding balance of pre-existed unpaid excise duty relevant to AY 1997-98 out of total sum of ₹ 1,04,79,687/- which was disallowed u/s. 43B of the Act. Ld. Counsel for the assessee drew our attention to page 13 of assessee s paper book, which is copy of annexure 9 as certified by Sr. Manag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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