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Court No. - 37


Case :- INCOME TAX APPEAL No. - 77 of 2014
Appellant :- Commissioner Of Income Tax, Moradabad And
Another
Respondent :- M/S Radico Khaitan Ltd., Bareilly Road, Rampur
Counsel for Appellant :- SC,A.N.Mahajan,R.K. Upadhyaya
Counsel for Respondent :- R.S.Agrawal



Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.

We have heard, Sri Manu Ghildyal, learned
counsel for appellants and Sri Rupesh Jain along
with Sri R.S. Agrawal, learned counsel for the
assessee.

appeal was admitted on following
substantial questions of law:

1. Whether on facts and circumstances of case,
Tribunal was right in law in holding that claim of
depreciation on assets in respect of Radico Textile Unit
which had not yet commenced during year under
consideration?

2. Whether on facts and circumstances of case,
Tribunal was right in law in holding that receipt of
interest on loans land deposits given to various parties
was income from Income profits and gains of business
and profession instead of income from other sources?

3. Whether on facts and circumstances of case,
Tribunal was right in law in holding that the
depreciation on tube well at higher rate of 25%?

4. Whether on facts and circumstances of case,
Tribunal was right in law in holding claim in
respect of rent in Transit Guest House?
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5. Whether on facts and circumstances of case,
Tribunal was right in law in treating various capital
expenses as revenue expenses?

6. Whether on facts and in circumstances of the
case, Tribunal was right in law in allowing deduction
for loss on goods in transit being additional ground taken
by assessee in appellate proceedings whereas the
claim for deduction is in respect of preceding year
which is still pending in appeal before Commissioner of
Income Tax (Appeals), Bareilly?

Issue No.2 is covered against assessee in
assessee's own case for Assessment Year
1990-1991 reported in 274 ITR 354.
Consequently, issue is decided against the
assessee and in fvaour of Department.

Issue no.4 is covered against assessee in
the assessee's own case by judgment dated
4.9.2013 for Assessment Year 1993-94
reported in 360 ITR 462. Consequently, issue is
decided against assessee and in favour of the
Department.

Issue nos.1 and 3 are same issues which
were allowed in favour of assessee for year
1993-94, in which order of Tribunal was
accepted by Department as same was not
challenged in higher forum. Since no
distinguishing features have been pointed out and
the principle of consistency is required to be
maintained inter se between parties, we are of
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the opinion that Department cannot be
permitted to question these issues when it was
accepted by them in previous years. Our view is
supported by decisions of Supreme Court in
Radhasoami Satsang Vs. Commissioner of
Income Tax, (1992) 193 ITR 321, Berger Paints
India Ltd Vs. Commissioner of Income Tax,
(2004) 266 ITR 99 and Commissioner of
Central Excise Vs. Bal Pharma Limited,
Bangalore and others (2011) 2 SCC 620. In
view of aforesaid, issue is decided in favour
of assessee and against Department.

In so far as issue no.5 is concerned, we find that
the similar issue arose for consideration before this
Court in assessee's own case for Assessment
Year 1993-94, wherein Court in its judgment
dated 4.9.2013 held that issue did not arise for
consideration. On facts and circumstances of the
case, we find that said issue also does not arise
for consideration. Consequently, issues is
decided against Department and in favour of the
Assessee.

With regard to issue no.6, we find that the
Tribunal had directed Assessing Officer to allow
the said loss in year 1993-94 under
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consideration provided assessee's company
gives up its claim for deduction in respect of the
same for Assessment Year 1993-94.

We are of opinion that no prejudice has
been caused to interest of Revenue in
allowing claim of assessee in present
Assessment Year subject to assessee's giving up its
claim in previous Assessment Year i.e. 1993-94.
In light of aforesaid, issue is decided
against Department and in favour of the
assessee.

In light of aforesaid appeal is partly
allowed.

Order Date :- 24.9.2015/vkg



(Surya Prakash Kesarwani, J.) (Tarun Agarwala, J.)
Commissioner Of Income Tax, Moradabad And Another v. M/S Radico Khaitan Ltd