M/s. Gemscab Industries Ltd., New Delhi V. ACIT, New Delhi

CO 42/DEL/2015

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3698 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 13-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Depreciation; Additional evidence

Judgement Text

N THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DLEHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NO.4515/DEL/2014 ASSESSMENT YEAR: 2010-11 ASSTT. COMMISSIONER OF INCOME-TAX VS M/ S GEMSCAB INDUSTRIES LTD. CIRCLE -12(1), NEW DELHI. 44 G.B. ROAD, DELHI. (PAN:AAACG5260H) CROSS OBJECTION NO.42/DEL/2015 (IN I.T.A. NO.4515/DEL/2014) ASSESSMENT YEAR: 2010-11 M/S GEMSCAB INDUSTRIES LTD. VS ASSTT. COMMISSI ONER OF INCOME-TAX 44 G.B. ROAD, DELHI. CIRCLE -12(1), NEW DELHI . (PAN:AAACG5260H) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI MOHIT GUPTA DEPARTMENT BY: SHRI S.R. SENAPATI, SR. DR DATE OF HEARING: 04.04.201 8 DATE OF PRONOUNCEMENT: 06.04.201 8 ORDER PER K. NARSIMMHA CHARY, JM AGGRIEVED BY THE ORDER DATED 26.5.2014 IN APPEAL NO. 46/13-14 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX(A)-XV, NEW D ELHI {FOR SHORT LD.CIT(A)), REVENUE PREFERRED THIS APPEAL. ASSESSEE HAS ALSO F ILED CROSS OBJECTION 2 NO.42/DEL/2015 IN SUPPORT OF THE FINDINGS OF THE LD . CIT(A) AND STATING THAT NO NEW EVIDENCE IS PRODUCED BEFORE THE LD. CIT(A) OTHE R THAN THE DOCUMENTS THAT WERE PRODUCED BEFORE THE AO DURING THE COURSE OF AS SESSMENT PROCEEDINGS, AS SUCH, NO QUESTION OF APPLICATION OF RULE 46A OR GIV ING AN OPPORTUNITY TO THE LD. AO ARISES. 2. ASSESSEE IS A MANUFACTURER EXPORTER PUBLIC LIMIT ED COMPANY AND DURING THE RELEVANT ASSTT. YEAR, THEY WERE DERIVING INCOME FROM THE BUSINESS OF MANUFACTURING OF POWER CABLES, ELECTRICAL WIRES, MI NING CABLES, FLEXIBLE CABLES, INSTRUMENTATION CABLES, HT-XLPE CABLES, HT-XL PC CA BLES, LT-XL PE CABLES, CONTROL/RAILWAY SIGNALLING SCREENED/UNSCREENED CABL ES, HR AND FRLS CABLES AND A FLEXIBLE WIRES. DURING THE SCRUTINY PROCEEDINGS FOR THE ASSESSMENT YEAR 2010-11, LD. AO OBSERVED, AMONG OTHER THINGS, THAT IN SPITE OF REPEATED OPPORTUNITIES THE ASSESSEE FAILED TO PRODUCE DETAILS AND DOCUMENTS SU PPORTING THEIR CLAIM THAT THE PRODUCTION UNDER UNIT II WAS COMMENCED ANY TIME EARL IER TO 30/09/2009, AS SUCH, IN THE ABSENCE OF EVIDENCE TO HOLD THAT THE COMPAN Y HAS STARTED PRODUCTION IN UNIT II BEFORE SEPTEMBER 2009, HELD THAT 50% OF THE DEPRECIATION CLAIMED IN RESPECT OF UNIT II BY THE ASSESSEE COMPANY, WAS LIA BLE TO BE DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE COMPANY. 3. WHEN THE ASSESSEE CARRIED THE MATTER IN APPEAL B EFORE THE LD. CIT(A) AGAINST ALL THE ADDITIONS, INSOFAR AS THIS PARTICUL AR ADDITION BASED ON DISALLOWANCE OF 50% DEPRECIATION ON ASSETS IN RESPECT OF UNIT-II , CIT(A) VERIFIED THE DOCUMENTS PRODUCED BEFORE HIM WITH THE RECORD AND HELD THAT T HE DOCUMENTS WHICH WERE AVAILABLE BEFORE THE AO SHOW THAT PRODUCTION IN THE UNIT-II HAD STARTED SINCE AUGUST, 2009 ONWARDS. IN PARTICULAR CIT(A) REFERRED TO THE SALES INVOICES RELATING 3 TO THE ABOVE UNIT FOR THE PERIOD BETWEEN 20/04/2009 AND 30/09/2009 AND ALSO THE TRANSPORTERS RECEIPTS. BASING ON THESE DOCUMEN TS CIT FOUND THAT UNIT-II COMMENTS IN OPERATIONS SINCE 20/04/2009 AND DELETED THE DISALLOWANCE OF 50% OF DEPRECIATION. CHALLENGING THIS FINDING OF THE CI T(A), REVENUE PREFERRED THIS APPEAL, CONTENDING THAT THE CIT(A) COMMITTED AN ERR OR IN ACCEPTING ADDITIONAL EVIDENCE WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER IN VIOLATION OF RULE 46A AND THEREBY DELETING THE DISALLOWANCE ON ACCOUN T OF DEPRECIATION. 4. LD. DR DRAW ATTENTION TO THE ORDER OF THE LD. CI T(A) VIDE PARAGRAPH NO. 6.3 WHEREIN CIT(A) STATED THAT ON A CAREFUL CONSIDERATI ON OF THE EVIDENCE FURNISHED BEFORE HIM, HE FIND THAT THE ASSESSEE COMPANY WAS MA KING SALES FROM UNIT-II SINCE 20/04/2009, ON WHICH EXCISE DUTY AND SALES TAX WERE CHARGED AND DULY DEPOSITED WITH THE RESPECTIVE TAX AUTHORITIES. BASI NG ON THIS , HE SUBMITTED THAT, WHEN THIS EVIDENCE WAS PRODUCED BEFORE THE CIT(A), A REASONABLE OPPORTUNITY SHOULD HAVE BEEN GIVEN TO THE ASSESSING OFFICER TO REBUT THE SAME. 5. PER CONTRA, LD. AR SUBMITTED THAT THOUGH THE CIT (A) HAD CONSIDERED THESE DOCUMENTS THAT WERE PRODUCED BEFORE HIM, THE FACT R EMAINS THAT ON VERIFICATION OF RECORD CIT(A) FOUND THAT ALL THESE DOCUMENTS WE RE AVAILABLE WITH THE AO ALSO. IT IS SUBMITTED THAT THERE IS NO REQUEST FROM THE A SSESSEE TO PRODUCE ANY ADDITIONAL EVIDENCE BY WAY OF RULE 46A OF THE RULES, IN AS MUCH AS THERE IS NO OCCASION FOR THE ASSESSEE TO DO SO SINCE THE DOCUME NTS ARE AVAILABLE ON RECORD AND VIDEO ALSO. 6. WE HAVE CAREFULLY GONE THROUGH THE IMPUGNED ORDER . NO DOUBT LD. CIT(A) STATED IN HIS ORDER THAT ON A CAREFUL CONSIDERATION OF THE EVIDENCE FURNISHED BEFORE HIM IN THE SHAPE OF COPIES OF THE SALES INVO ICES FOR THE PERIOD BETWEEN 4 20/04/2009 2 30/09/2009 ALONG WITH THE COPIES OF TH E TRANSPORTERS RECEIPTS, NEVERTHELESS IT IS FURTHER OBSERVED BY HIM THAT ALL THESE DOCUMENTS WERE AVAILABLE WITH THE AO ALSO. BY NO STRETCH OF IMAGINATION IT CO ULD BE SAID THAT THE CIT(A) WHILE ALLOWING THE ADDITIONAL EVIDENCE, MADE A WRON G STATEMENT THAT ALL THESE DOCUMENTS WERE AVAILABLE WITH THE LD.AO ALSO. NOWHE RE IN THE ORDER IT IS STATED THAT THE ASSESSEE CAME FORWARD WITH ANY ADDITIONAL E VIDENCE AT THE APPELLATE STAGE. ASSESSEE SIMPLY PRODUCED THE COPIES OF THE DO CUMENTS WHICH ARE ALREADY AVAILABLE WITH THE AO, ON CONSIDERING WHICH, WHILE OBSERVING THAT BASING ON THESE DOCUMENTS WHICH WERE AVAILABLE WITH THE AO, CIT(A) REACHED THEIR CONCLUSION THAT UNIT-II COMMENCED ITS OPERATIONS SINCE 24/08/2 009. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, ON A PLAIN READING OF TH E IMPUGNED ORDER WE FIND THAT THIS APPEAL OF THE REVENUE IS MISCONCEIVED ONE AND DOES NOT HOLD ANY MERITS. RECORDING THE SAME, WE DISMISS THE GROUNDS OF APPE AL. IN VIEW OF DISMISSAL OF THE REVENUES APPEAL, CROSS OBJECTION BECOMES INFRU CTUOUS AND IS ACCORDINGLY DISMISSED. 7. IN THE RESULT APPEAL OF THE REVENUE AND CROSS OB JECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH APRIL, 2018. SD/- SD/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH APRIL, 2018 VJ 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) BY ORDER 5. DR, ITAT ASSTT. REGISTRA R, ITAT