DCIT,Circle-6, Kolkata, Kolkata V. M/s. IPM Industries Ltd, Kolkata

ITA 1139/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5642 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2012
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL
• Assessee Lawyers: JHAJHARIA
• Keywords: Depreciation; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.1139/KOL/2012 ASSESSMENT YEAR : 2008-09 ( APPELLANT ) (RESPONDENT) D.C.I.T., CIRCLE-6, -VS- M/S.IPM INDUSTRIES LTD . KOLKATA KOLKATA (PAN:AAACI 5523 R) FOR THE APPELLANT SHRI SATYAJIT MONDAL, JCIT, SR.DR FOR THE RESPONDENT SHRI JHAJHARIA DATE OF HEARING : 25.03.2014 DATE OF PRONOUNCEMENT : 25. 03.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)-VI, KOLKATA IN APPEAL NO.260/CIT(A)-VI/CIR-6/10-11/KOL DATED 28.05.2012 FOR ASSESSMENT YEAR 2008-09. 2. SHRI SATYAJIT MONDAL, JCIT, SR.DR REPRESENTED O N BEHALF OF THE REVENUE AND SHRI S.JHAJHARIA REPRESENTED ON BEHALF OF THE ASS ESSEE. 3. IN THE REVENUES APPEAL THE REVENUE HAS RAISED T WO ISSUES. THE FIRST ISSUE IS AGAINST THE ACTION OF LD. CIT(A) IN DELETING THE DI SALLOWANCES MADE IN RESPECT OF DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PF AND ESI. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF AO ON THIS ISSUE. 4. IN REPLY THE LD. AR SUBMITTED THAT THE ISSUE WA S SQUARELY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF M/S.VIJAY SHREE LIMITED IN ITAT NO.245 OF 2011, G.A.NO.2607 OF 2011 DATED 6 TH SEPTEMBER, 2011. ITA.NO.1139/KOL/2012 M/S. IP M INDUSTRIES LTD. A.YR.2008-09 2 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ISSUE OF THE DELAYED PAYMENT OF PF AND ESI IS NOW SQUARELY COVER ED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. VIJAY SHREE LIMITED REFERRED TO SUPRA WE ARE OF THE VIEW THAT THE FINDINGS OF LD. CIT(A) IN DELETING THE DISALLOWANCE IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENC E. 6. THE SECOND ISSUE IN THE REVENUES APPEAL IS AGA INST THE ACTION OF LD. CIT(A) IN ALLOWING THE CLAIM OF DEPRECIATION BY ADMITTING ADD ITIONAL EVIDENCES WHICH WERE NOT PRODUCED BEFORE THE AO. IT WAS THE SUBMISSION BY LD . DR THAT THE ISSUE IN THIS APPEAL MAY BE RESTORED TO THE FILE OF AO FOR RE-ADJUDICATI ON. IT WAS THE SUBMISSION BY THE LD. DR THAT THE ASSESSEE HAVING NOT PRODUCED THE EVIDEN CES BEFORE THE AO IN THE COURSE OF ASSESSMENT THE LD. CIT(A) OUGHT NOT TO HAVE ENTE RTAINED FRESH EVIDENCES. 7. IN REPLY THE LD. AR DREW OUR ATTENTION TO THE OR DER OF LD. CIT(A) AS ALSO PAGES 212 TO 213 OF THE PAPER BOOK. IT WAS THE SUBMISSION THAT THE FRESH EVIDENCES PRODUCED BEFORE THE LD. CIT(A) HAD BEEN RIGHTLY ADMITTED AND THE REMAND REPORT HAS ALSO BEEN CALLED FOR FROM THE AO ON THE FRESH EVIDENCES. IT W AS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE ISSUE WAS RESTORED TO THE FILE OF AO FOR RE-ADJUDICATION. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS PER USAL OF THE REMAND REPORT FILED BY THE LD. AO BEFORE LD. CIT(A) CLEARLY SHOWS THAT THOUGH THE LD. CIT(A) HAD ASKED FOR THE REMAND REPORT ON THE FRESH EVIDENCES PRODUCED BY THE ASSESSEE BEFORE LD. CIT(A) THE AO INSTEAD OF EXAMINING THE FRESH EV IDENCES HAS RAISED OBJECTION IN RESPECT OF ADMISSION OF ADDITIONAL EVIDENCES. THE A DMISSION OF ADDITIONAL EVIDENCES UNDER RULE 46A OF IT RULES IS A PREROGATIVE OF LD. CIT(A). THE LD. CIT(A) AFTER HAVING ADMITTED THE ADDITIONAL EVIDENCES, ADMITTEDL Y IS DUTY BOUND TO CALL FOR A REMAND REPORT. THE AO THEN DOES NOT HAVE A LIBERTY TO ARGUE ON THE ADMISSION OF ADDITIONAL EVIDENCES IN THE REMAND PROCEEDINGS. IN ANY CASE, AS IT HAS BEEN ACCEPTED BY BOTH THE SIDES THAT THE ISSUE IN RESPECT OF DEPR ECIATION WHICH HAS BEEN ALLOWED BY LD. CIT(A) BY ADMITTING ADDITIONAL EVIDENCES CAN BE RESTORED TO THE FILE OF AO FOR RE- ADJUDICATION AS THE LD. AO HAS NOT GIVEN HIS COMMEN TS ON THE SAME, THE ISSUE IN ITA.NO.1139/KOL/2012 M/S. IP M INDUSTRIES LTD. A.YR.2008-09 3 RESPECT OF DEPRECIATION IS RESTORED TO THE FILE OF AO FOR READJUDICATION AFTER GRANTING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . 9. IN THE RESULT THE APPEAL OF THE REVENUE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.03.2014. SD/- SD/- [SHAMIM YAHYA] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 25.03.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S.I.P.M.INDUSTRIES LTD., 14/B,WORLD TRADE CENTRE, EZRA STREET, KOLKATA- 700001. 2 D.C.I.T., CIRCLE-6, KOLKATA 3 . CIT(A)-VI, KOLKATA. 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES