DCIT, CHENNAI V. Indian Garnet Sand Company Private Limited, CHENNAI

ITA 1106/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8207 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A B KOLIJCITD R
• Assessee Lawyers: K VIJAYARAGHAVAN
• Section: 143(3); 10B; 147; 148; 263; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , . , , BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NOS.1104,1105 & 1106 /MDS./2015 ( ! ! / ASSESSMENT YEARS : 2007-08, 2008-09 & 2010-11) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATION CIRCLE-2(2), ROOM NO.512, WANAPARTHY BLOCK, CHENNAI 600 034. VS. M/S.INDIA GARNET SAND COMPANY PRIVATE LIMITED, 1-A,FIRST FLOOR, PRASAD STREET, SEETHAPATHY NAGAR, VELACHERRY, CHENNAI 600 042. PAN AAACI 1505 K ( / APPELLANT ) ( / RESPONDENT ) $ % / APPELLANT BY : MR.A.B.KOLI,JCIT,D.R '($ % / RESPONDENT BY : MR.K.VIJAYARAGHAVAN, ADVOCATE % , / DATE OF HEARING : 17. 11.2015 % , /DATE OF PRONOUNCEMENT : 20 .01.2016 / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THESE THREE APPEALS ARE FILED BY THE REVENUE, AGG RIEVED BY THE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-6, CHENNAI IN ITA NOS.51 & 50/CIT(A)-6/2012-13 & ITA ITA NOS.1104 TO 1106/MDS/2015 INDIA GARNET SAND CO. P LTD. 2 NO.187/CIT(A)/2013-14 VIDE ORDER DATED 12.12.2014 PASSED UNDER SEC.143(3) R.W.S 263, SEC.143(3) R.W.S 147 AND SEC. 143(3), READ WITH SECTION 250 OF THE ACT FOR THE ASSESSMENT YEA RS 2007-08, 2008- 09 & 2010-11 RESPECTIVELY. 2. THE REVENUE HAS RAISED THREE IDENTICAL GROUNDS IN ALL THE ABOVE APPEALS, HOWEVER THE CRUX OF THE ISSUE IS THA T:- THE LD. CIT (A) HAD ERRED IN ACCEPTING THE ADD ITIONAL EVIDENCE PRODUCED BY THE ASSESSEE WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME IN ACCORDANCE WITH RULE 46A OF THE I.T RULES AND PARTL Y ALLOWED DEDUCTION U/S.80-IB OF THE ACT BASED ON SUC H EVIDENCE. 3. THE BRIEF FACTS OF THE CASE AS STATED BY THE LD . CIT (A) ARE REPRODUCED HEREIN BELOW FOR REFERENCE:- BRIEF FACTS OF THE CASE ASSESSEE FILED ITS RETURNS OF INCOME OF A.YS.2007- 08, 2008-09 AND 2010-11 ON 27.10.2007, 29.09.2008 AND 24.09.2010, RESPECTIVELY, DECLARING INCOMES OF RS.8,77,880/-, RS.63,09,840/- AND RS.86,80,390/-, AFTER CLAIMING A DEDUCTIONS OF RS60 ,53,885/-, RS30,09,920/- AND RS3,07,03,867/- U/S L0B OF THE AT THE RETURNS WERE PROCESSED U/S 143(1) THE RETURN OF INCOME OF A.Y.20 07-08 WAS SELECTED FOR SCRUTINY AND AN ASSESSMENT U/S. 143(3) WAS MADE ON 24.12.2009 ITA NOS.1104 TO 1106/MDS/2015 INDIA GARNET SAND CO. P LTD. 3 SUBSEQUENTLY THE COMMISSIONER OF INCOME TAX-1, CHEN NAI SET ASIDE ASSESSMENT U/S 263 OF THE ACT VIDE F.NO,218(45)/CIT -I/263/2011-12 DATED 23.03.12. THE ASSESSING OFFICER WHILE COMPLETING TH E ASSESSMENT OF A Y 2007-08 U/S 143(3) R W S 263 OF THE ACT, ASSESSED T HE INCOME AT RS 69,31,770/-, BY DISALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 108 OF THE ACT (AGAINST THIS ORDER, THE ASSESSEE INSTITUTE D THE PRESENT APPEALS IN ITA NO 51/CIT(A)-6/2012-13). THE RETURN OF INCOME OF A Y 2008-09 WAS ALSO SELECT ED FOR SCRUTINY AND AN ASSESSMENT U/S 143(3) OF THE ACT WAS ALSO MADE ON 3 1.12.2010, ASSESSING THE INCOME AT RS 70,22,510/- SUBSEQUENTLY THE ASSESSMENT OF A Y 2008-09 WAS REOPENED U/S 147 OF THE ACT BY ISSU ING A NOTICE U/S 148 ON 26.03.2013 THE ASSESSING OFFICER WHILE COMPLETIN G THE REASSESSMENT OF A Y 2008-09 U/S 143(3) R.W.S 147 OF THE ACT ON 0 6.02.2014, ASSESSED THE INCOME AT RS.1,00,32,430/-, BY DISALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 10B OF THE ACT (AGAINST THIS ORDER, T HE ASSESSEE INSTITUTED THE PRESENT APPEALS IN ITA NO 50/CIT(A)-6/2012-13). THE RETURN OF INCOME OF A Y 2010-11 WAS ALSO SELECT ED FOR SCRUTINY UNDER THE NORMAL COURSE THE ASSESSING OFFICER WHILE COMPL ETING THE REASSESSMENT OF A Y 2010- 11 U/S 143(3) OF THE ACT ON 31.12.2012, ASSESSED THE INCOME AT RS 3,93,84,260/-, BY DISALLO WING THE ASSESSEES CLAIM OF DEDUCTION U/S 10B OF THE ACT, ON THE GROUN D THAT THE ASSESSEES ACTIVITY WILL NOT AMOUNT TO MANUFACTURING OF THINGS /ARTICLES WITHIN THE INSTITUTED THE PRESENT APPEALS IN ITA NO 187/ CIT(A )-6/2013-1 4). THUS, AGGRIEVED BY THE ABOVE ACTIONS OF THE ASSESSI NG OFFICER, THE ASSESSEE INSTITUTED THE PRESENT THREE APPEALS. ITA NOS.1104 TO 1106/MDS/2015 INDIA GARNET SAND CO. P LTD. 4 4. SUBSEQUENTLY THE LD. CIT(A) IN HIS COMMON APPEL LATE ORDER ALLOWED THE CLAIM OF DEDUCTION U/S.10B OF THE ACT A ND THE REVENUE IS IN APPEAL BEFORE US. 5. AT THE OUTSET THE LD. D.R SUBMITTED BEFORE US T HAT THE LD. CIT (A) HAD GRANTED RELIEF TO THE ASSESSEE BASED ON THE FRESH EVIDENCE PRODUCED BEFORE HIM FOR THE FIRST TIME WHICH IS IN VIOLATION OF RULES 46A OF THE I.T. RULES AND THEREFORE, IT WAS PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD. ASSESSI NG OFFICER FOR DENOVO CONSIDERATION. LD. A.R. VEHEMENTLY OPPOSE TO THE SUBMISSIONS OF THE LD. D.R HOWEVER AGREED THAT CERT AIN FRESH EVIDENCES WERE PRODUCED BEFORE THE LD. CIT (A). 6. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE ASSESSEE HAS PRODUCED FRESH EVIDENCE BEFORE THE LD. CIT (A) SUCH AS PERMITS, APPROVAL RATIFIED BY THE BOARD FOR APPROVAL AND VAR IOUS OTHER MATERIALS AND THE LD. CIT (A) HAS NOT OBTAINED A RE MAND REPORT FROM THE LD.A.O IN ORDER TO PROVIDE HIM WITH AN OPPORTUN ITY TO VERIFY THESE ITA NOS.1104 TO 1106/MDS/2015 INDIA GARNET SAND CO. P LTD. 5 DOCUMENTS IN ACCORDANCE WITH RULE 46A OF THE INCOME TAX RULES, 1962. THEREFORE, IN THE INTEREST OF JUSTICE WE HER EBY REMIT BACK ALL THESE APPEALS TO THE FILE OF THE LD. ASSESSING OFFI CER FOR DENOVO CONSIDERATION. WE ALSO MAKE IT CLEAR THAT THE ASSE SSEE SHALL BE AT LIBERTY TO PRODUCE ANY FRESH MATERIALS BEFORE THE L D. ASSESSING OFFICER TO JUSTIFY ITS CLAIMS. 7. IN THE RESULT ALL THE APPEALS FILED BY THE ASSE SSEE FOR THE ASSESSMENT YEARS 2007-08, 2008-09 & 2010-11 ARE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 20 TH JANUARY, 2016 AT CHENNAI. SD/- SD/- ( . . . ) ( N.R.S.GANESAN ) ( . ) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 20 TH JANUARY, 2016. K S SUNDARAM. % './ 0/ /COPY TO: 1. $ /APPELLANT 2. '($ /RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / '5 /DR 6. ! /GF