DCIT, Chandigarh V. M/s Health Biotech Ltd., Chandigarh

ITA 1089/CHANDI/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0009 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.1089/CHD/2014 (ASSESSMENT YEAR : 2010-11) THE D.C.I.T., VS. M/S HEALTH BIOTECH LTD., CIRCLE 4(1), SCO-162-164, SECTOR 34-A, CHANDIGARH. CHANDIGARH. PAN: AABCH1876K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUSHIL KUMAR, CIT DR RESPONDENT BY : SHRI TEJ MOHAN SINGH DATE OF HEARING : 27.04.2016 DATE OF PRONOUNCEMENT : 29.04.2016 O R D E R PER RANO JAIN, A.M . : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH DATED 25.9.2014 FOR ASSESSMEN T YEAR 2010-11, PASSED UNDER SECTION 250(6) OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT). 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IC OF TH E ACT AMOUNTING TO RS.7,73,51,408/- IN ITS RETURN OF INCO ME. THE ASSESSING OFFICER, DURING THE ASSESSMENT PROCEE DINGS. NOTED THAT FORM NO.10CCB FILED DURING THE ASSESSMEN T 2 PROCEEDINGS SHOWED THE DEDUCTION UNDER SECTION 80IC OF THE ACT TO AN AMOUNT OF RS.6,98,70,434/-. IN THIS WAY, THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS.74,80,974/- OUT OF DEDUCTION UNDER SECTION 80IC OF THE ACT, BEING THE DIFFERENCE BETWEEN RS.7,73,51,408/- AND RS.6,98,70,434/-. 3. BEFORE THE LEARNED CIT (APPEALS), IT WAS SUBMITTED THAT DUE TO A TYPOGRAPHICAL ERROR, THE DE DUCTION WAS COMPUTED AT RS.6,98,70,434/- AS AGAINST ACTUAL CLAIM OF RS.7,73,51,408/- COMPUTED AFTER CLAIMING DEPRECI ATION AS PER THE INCOME TAX ACT. A COPY OF REVISED FORM NO.10CCB AND A CERTIFICATE FROM THE AUDITOR IN THIS REGARD WERE ALSO FILED. THE LEARNED CIT (APPEALS) ALLOWED THE GROUND OF THE ASSESSEE STATING THAT THE ASSESSEE SH OULD NOT BE MADE TO SUFFER BECAUSE OF SOME CLERICAL/TYPOGRAPHICAL MISTAKES ON THE PART OF THE AUDITOR. RELIANCE IN THIS REGARD WAS PLACED ON THE ORDER OF THE I.T.A.T., CHANDIGARH BENCH IN THE CASE OF PUNJAB G ENCO LTD. IN ITA NO.1254/CHD/2012, DATED 21.4.2014. HE DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U NDER SECTION 80IC OF THE ACT AFTER DUE VERIFICATION OF COMPUTATION. 4. AGGRIEVED BY THIS, THE DEPARTMENT HAS COME IN APPEAL, RAISING THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSE SSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION AMOUNTING TO RS.74,80,974 MADE BY THE ASSESSING OFFICER BY DISALLOWANCE U/S 80IC ON ACCOUNT OF DIFFERENCE BETWEEN THE QUANTUM OF DEDUCTION AS CLAIMED BY THE ASSESSEE AND AS SHOWN IN THE REPORT OF THE AUDITOR U/S 80IC(7) INFORM 10CCB. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION AMOUNTING TO RS.74,80,974 BY WRONGLY RELYING UPON THE DECISION DATED 21,04.2014 OF THE HONBLE ITAT, CHANDIGARH IN THE CASE OF M/S PUNJAB GENCO LTD IN THE ITANO.1254/2012, AS THE ISSUE THEREIN WAS OF MERE PUTTING WRONG DATE BY THE AUDITOR INFORM 10 CCB WHEREAS IN THE PRESENT CASE THE COMPUTATION OF QUANTUM OF DEDUCTION U/S 80IC ITSELF HAS BEEN ENHANCED BY THE AUDITOR IN THE REVISED FORM 10CCB AFTE R DETECTION OF DISCREPANCY BY THE ASSESSING OFFICER 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN ADMITTING THE REVISED R EPORT OF THE AUDITOR INFORM 10CCB HAVING DISTINCTIVE PARTICULARS FROM THE ORIGINAL FORM 10CCB AFTER POINT ING OUT OF THE DISCREPANCY BY THE ASSESSING OFFICER. 5 THE APPELLANT CARVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 5. THE LEARNED D.R. AT THE TIME OF HEARING STATED THAT THE RELIANCE PLACED BY CIT (APPEALS) ON THE OR DER OF THE I.T.A.T., CHANDIGARH BENCH IN THE CASE OF PUNJ AB GENCO LTD. (SUPRA) IS MISPLACED AS THE FACTS OF THA T CASE CANNOT BE EQUATED WITH THE FACTS OF THE PRESENT CAS E. THE SECOND ARGUMENT WAS THAT THE CIT (APPEALS) IS NOT V ESTED WITH THE POWERS TO SET ASIDE THE ORDER OF THE ASSESSING 4 OFFICER. THIRDLY, IT WAS ARGUED THAT THE OBSERVATI ON OF THE CIT (APPEALS) IS BASED ON THE PRESUMPTION THAT THE REVISED AUDIT REPORT AND THE CERTIFICATE OF THE AUDITOR WAS FURNISHED BEFORE THE ASSESSING OFFICER, WHICH IS FA CTUALLY INCORRECT SINCE THE CERTIFICATE OF THE AUDITOR IS D ATED 15.4.2013, WHICH IS AFTER THE DATE OF ASSESSMENT OR DER. BOTH THE AUDIT REPORTS BEING DATED 3.7.2010, THE LA TER AUDIT REPORT IS NOT GENUINE AND THE AFTERTHOUGHT OF THE ASSESSEE. IN VIEW OF THESE SUBMISSIONS, IT WAS PRA YED THAT THE ISSUE BE SET ASIDE TO THE FILE OF THE ASSE SSING OFFICER TO EXAMINE IT AFRESH. 6. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE CIT (APPEALS) AND FURTHER FILED A COPY OF THE ORDER OF THE ASSESSING OFFICER GIVING CONSEQUEN TIAL EFFECT TO THE ORDER OF THE CIT (APPEALS), WHEREBY T HE ASSESSING OFFICER HAD ALLOWED ASSESSEE AN ADDITIONA L DEDUCTION UNDER SECTION 80IC OF THE ACT TO AN AMOUN T OF RS.74,80,974/-. HOWEVER, HE AGREED TO THE PROPOSAL OF THE LEARNED D.R. TO SET ASIDE THE MATTER TO THE ASSESSI NG OFFICER TO EXAMINE. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSES SEE MADE CLAIM OF DEDUCTION UNDER SECTION 80IC OF THE A CT TO AN AMOUNT OF RS.7,73,51,408/- IN ITS RETURN OF INCO ME, HOWEVER, DEDUCTION AS PER FORM NO.10CCB PROVIDED BY THE CHARTERED ACCOUNTANT WAS RS.6,98,70,434/- . THE 5 EXPLANATION OF THE ASSESSEE WAS THAT IT WAS DUE TO SOME TYPOGRAPHICAL ERROR ON THE PART OF THE CHARTERED ACCOUNTANT. THIS FACT WAS CORROBORATED BY A CERTIF ICATE FROM THE CHARTERED ACCOUNTANT, WHICH WAS FILED BEFO RE THE CIT (APPEALS), AS IS APPARENT FROM THE DATE OF CERT IFICATE, WHICH IS A DATE AFTER THE DATE OF ASSESSMENT ORDER. HOWEVER, AFTER CONSIDERING THE SAME, THE LEARNED CI T (APPEALS) DIRECTED THE ASSESSING OFFICER TO ALLOW T HE DEDUCTION TO THE ASSESSEE AS PER THE REVISED FORM NO.10CCB. WE DO NOT FIND ANY INFIRMITY IN THIS ACT OF THE CIT (APPEALS). THE ARGUMENT OF THE LEARNED D.R. WA S THAT BOTH THE AUDIT REPORTS ARE OF THE SAME DATE, IS NOT A RELEVANT OBSERVATION, AS ON COMING TO KNOW ABOUT AN ERROR, THE CHARTERED ACCOUNTANT CAN REVISE HIS REPO RT EVEN ON THE SAME DATE. THE FACT THAT IN EARLIER REPORT, THE DEDUCTION WAS COMPUTED NOT CONSIDERING THE DEPRECIA TION AS PER INCOME TAX ACT, FURTHER STRENGTHEN THE CASE OF THE ASSESSEE. THE CASE LAW RELIED ON BY THE CIT (APPEA LS), I.E. OF PUNJAB GENCO LTD.(SUPRA) MAY BE DISTINGUISHABLE ON FACTS. HOWEVER, THE PROPOSITION LAID DOWN BY IT IS THAT THE ASSESSEE SHOULD NOT SUFFER BECAUSE OF SOME ERROR ON THE PART OF THE CHARTERED ACCOUNTANT. ANOTHER ARGUMENT RAISED BY THE LEARNED D.R. WAS THAT THE CIT (APPEAL S) HAD NOT GIVEN OPPORTUNITY TO THE ASSESSING OFFICER TO E XAMINE THE CERTIFICATE OF AUDITOR FILED BY THE ASSESSEE BE FORE HIM AND FURTHER, THE LEARNED CIT (APPEALS) HAD NO POWER TO SET 6 ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICE R. IN THIS REGARD, IN THE PRESENT CASE, WE SEE THAT THE LEARNE D CIT (APPEALS) THOUGH DID NOT SEND THE MATTER IN REMAND TO THE ASSESSING OFFICER, HOWEVER, HE HAS GIVEN A DIRECTIO N TO HIM TO COMPUTE THE DEDUCTION PROPERLY AFTER DUE VERIFICATION. WE FEEL THAT THE FACT IS NOT THAT THE CIT (APPEALS) HAS SENT THE MATTER BACK TO THE FILE OF T HE ASSESSING OFFICER. IN FACT, HE HAS DIRECTED THE AS SESSING OFFICER TO GIVE RELIEF ON THE BASIS OF REVISED FORM NO.10CCB ONLY. IN ANY CASE, APPEAL EFFECT HAS TO B E GIVEN BY THE ASSESSING OFFICER ONLY. FURTHER, IN VIEW OF THIS DIRECTION, THE ASSESSING OFFICER HAD ALLOWED DEDUCT ION TO THE ASSESSEE IN HIS ORDER GIVING APPEAL EFFECT. IN SUCH A SCENARIO, SENDING BACK THE ISSUE TO THE ASSESSING O FFICER AGAIN WILL NOT SERVE ANY PURPOSE. WE ARE AWARE OF THE FACT THAT BOTH THE PARTIES HAVE CONSENTED DURING TH E COURSE OF HEARING BEFORE US FOR SENDING THE MATTER TO THE ASSESSING OFFICER. HOWEVER, SINCE THE ASSESSING OF FICER HAS ALREADY APPLIED HIS MIND AS PER THE DIRECTION O F THE LEARNED CIT (APPEALS), THE EXERCISE OF SENDING THE MATTER BACK WILL BE A FUTILE ONE. FURTHER, THERE IS NO SA NCTITY OF ANY CONSENT OF BOTH THE PARTIES GIVEN AT THE TIME O F HEARING, INCASE THE BENCH FEELS OTHERWISE. 8. HOWEVER, WE WANT TO CLARIFY THAT BY NOT SENDING THE SAME TO THE ASSESSING OFFICER, WE DO NOT WANT T O LAY ANY PRECEDENCE AS REGARDS THE POWERS OF THE CIT (AP PEALS) AND THE RIGHT OF ASSESSING OFFICER FOR REMAND. WE HAVE 7 NO QUARREL TO THE FACT THAT THE CIT (APPEALS) HAS N O POWER TO SEND BACK THE ISSUE TO THE ASSESSING OFFIC ER AND ON GETTING AN ADDITIONAL EVIDENCE, THE ASSESSIN G OFFICER HAS A RIGHT TO EXAMINE THE SAME IN REMAND PROCEEDINGS. HOWEVER, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, APPEAL EFFECT HAVING ALREADY BEEN GIVEN BY THE ASSESSING OFFICE R, SENDING THE MATTER BACK TO THE ASSESSING OFFI CER WILL AMOUNT TO UNNECESSARY MULTIPLICITY OF LITIGATI ON AND WASTAGE OF TIME AND MANPOWER. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2016. SD/- SD/- (BHAVNESH SAINI) (RANO JAIN) JUDICIAL MEMBER ACOUNTANT MEMBER DATED : 29 TH APRIL, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE D R. ASSISTANT REGISTRAR, ITAT, CHANDIGARH