Dinesh Aggarwal, Paonta Sahib V. ITO, Nahan

ITA 1337/CHANDI/2010

• Counselvise Citation: 133721514 RSA 2010
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 24-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI D.K.SRIVASTAVA, ACCOUNTANT MEMBER ITA NOS. 1336 TO 1338/CHD/2010 ASSESSMENT YEARS: 2002-03, 2003-04 & 2004-05 SHRI DINESH AGGARWAL, VS THE ITO, PROP M/S BHAGWATI CHEMICALS, NAHAN PAONTA SAHIB PAN NO. ABRPA2346D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARRY RIKHY RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 15.11.2011 DATE OF PRONOUNCEMENT : 16.11.2011 ORDER PER H.L.KARWA, VP THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE CONSOLIDATED ORDER OF CIT(A), SHIMLA DATED 13 TH SEPTEMBER, 2010 RELATING TO ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05. 2. THE COMMON GROUNDS OF APPEALS ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW & FACTS HAS DISALLOWED THE FRIGHT PAID AGAINST THE FREIGHT SUBS IDY RECEIVED. 2. THAT THE LD. CIT(A) HAS ALSO NOT SET OFF THE FRE IGHT EXPENSES PAID BY THE UNIT AGAINST THE FREIGHT SUBSI DY 2 RECEIVED BY THE UNIT WHICH IS BEING THE REIMBURSEME NT OF EXPENSES. 3. THE ASSESSEES VIDE HIS LETTER DATED 11.11.2011 H AS RAISED AN ADDITIONAL COMMON GROUND OF APPEALS, WHICH READS AS UNDER:- 1. THAT THE LD. CIT(A), SHIMLA IS NOT JUSTIFIED IN UPHOLDING THE ORDER OF LD. ASSESSING OFFICER AS HE HAS NOT GIVEN THE BENEFIT OF DEDUCTION U/S 80-IA/80IB O F THE INCOME TAX ACT, 1961 ON THE AMOUNT OF INCOME REGARDING MANUFACTURING ACCOUNT FROM THE MANUFACTURING UNIT AS PER THE DIRECTIONS OF THE HON 'BLE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH . 4. AS REGARDS THE ADMISSION OF ADDITIONAL COMMON GR OUND OF APPEALS, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE J UDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO LTD VS CIT (1998) 229 ITR 383. IN THIS CASE THE HON'BLE SUPRE ME COURT HELD AS UNDER:- UNDOUBTEDLY, THE TRIBUNAL HAS THE DISCRETION TO AL LOW OR NOT TO ALLOW A NEW GROUND TO THE RAISED. BUT WH ERE THE TRIBUNAL IS ONLY REQUIRED TO CONSIDER THE QUEST ION OF LAW ARISING FROM FACTS WHICH ARE ON RECORD IN TH E ASSESSMENT PROCEEDINGS, THERE IS NO REASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. 5. THE FACTS ARE ALREADY ON RECORD AND NO FURTHER I NVESTIGATION IS REQUIRED AND, THEREFORE, WE ADMIT THE ADDITIONAL G ROUND FOR ADJUDICATION WHICH GOES TO THE ROOT OF THE MATTER. 3 6. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ORIGINAL ASSESSMENT IN THIS CASE WAS MADE U/S 143(3) OF THE ACT. THE A CTIVITY ADOPTED BY THE ASSESSEE WAS NOT ACCEPTED AS MANUFACTURING AND FREI GHT SUBSIDY WAS ALSO NOT ACCEPTED AS EXEMPT. THE CIT(A) SHIMLA DISMISSE D THE APPEALS FILED BY THE ASSESSEE FOR ALL THE YEARS UNDER CONSIDERATI ON. THE ASSESSEE FURTHER FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL V IDE ITS ORDER DATED 27 TH MAY, 2008 IN ITA NOS. 974, 975 & 976/CHANDI/2007 AL LOWED THE APPEALS OF THE ASSESSEE PARTLY. THE ASSESSING OFFICER PAS SED ORDERS FOR GIVING EFFECT TO THE ORDER OF THE TRIBUNAL ON 30 TH MARCH 2009. THE ASSESSING OFFICER FAILED TO GIVE PROPER EFFECT OF THE ORDER O F THE TRIBUNAL AND THEREFORE, THE ASSESSEE FILED APPEALS AGAINST THE O RDERS I.E. DATED 30.3.2009 PASSED BY THE ASSESSING OFFICER BEFORE TH E CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS TAKEN GROUND NO.4, WHICH READS AS UNDER:- 4. THAT THE LD. ASSESSING OFFICER HAS NOT GIVEN RELIEF U/S 80IA/80IB OF THE INCOME TAX ACT, 1961 ON THE AMOUNT OF INCOME FROM MANUFACTURING UNIT. 7. THE CIT(A) HAS NOT CONSIDERED AND DECIDED THIS G ROUND OF APPEALS AND HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TRIB UNAL. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS TRUE THAT THE LD. CIT(A) HAS NOT CONSIDERED AND DECIDED COMMON GROUND NO. 4 OF THE A PPEALS RAISED BY THE ASSESSEE. IN OUR VIEW, THE CIT(A) SHOULD HAVE CONS IDERED AND DECIDED THIS COMMON GROUND OF APPEALS. THEREFORE, WE SET A SIDE THE ORDER OF CIT(A) IN TOTO AND REMAND THE MATTER TO CIT(A) WITH A DIRECTION TO DECIDE GROUND NO.4 OF THE APPEALS AFRESH IN ACCORDANCE WIT H LAW AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE WE HAVE SET ASIDE THE 4 ORDER OF CIT(A) IN TOTO, THEREFORE, WE ALSO REMAND THE COMMON ISSUE RAISED BY THE ASSESSEE VIDE GROUND NOS. 1 & 2 OF TH E APPEALS TO CIT(A) FOR DECIDING THE SAME AFRESH IN ACCORDANCE WITH LAW . 9. FOR STATISTICAL PURPOSES, ALL THE APPEALS ARE AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF NOVEMBER, 2011. SD/- SD/- (D.K.SRIVASTAVA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 16 TH NOVEMBER, 2011 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR