M/s. Blitz International, Roorkee V. ITO, Roorkee

ITA 1346/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7705 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 23-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 10-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SONBHADRA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-I, NEW DELHI BEFORE SH. N. K. SAINI, AM ITA NO. 1346/DEL./2016 : ASSTT. YEAR : 2010-11 BLITZ INTERNATIONAL C/O. C.S. ANAND & CO. 104, PANKAJ TOWER, 10, L.S.C. SAVITA VIHAR ROORKEE VS ITO WARD-1 ROORKEE (APPELLANT) (RESPONDENT) PAN NO. AAIFB7592A APPELLANT BY : SH. C. S.ANAND, ADV. RESPONDENT BY : SH. V.R.SON BHADRA, SR. DR DATE OF HEARING : 23.05.2016 DATE OF PRONOUNCEMENT : 24.05.2016 ORDER PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 04/12/2015 OF THE C.I.T.(A)-DEHRADUN. FOLLOWING GRO UNDS HAVE BEEN RAISED IN THIS APPEAL : 1. THAT THE ORDER PASSED BY THE LD. CIT(A) IS BAD ON VARIOUS FACTUAL & LEGAL GROUNDS. ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 2 2. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, T HE ASSESSEE DESERVES AN OPPORTUNITY OF BEING HEARD IN THE LIGHT OF THE DOCUMENTARY EVIDENCES, WHICH WERE NOT AVAILA BLE WITH THE LD. A.O. AND WHICH WERE NOT CONSIDERED BY THE LD. CIT(A). 3. THAT NATURAL JUSTICE HAD BEEN DENIED TO THE ASSESSE E, IN AS MUCH AS THE LD. CIT(A) HAS NOT HEARD THE ASSESSEES A.R. ON THE FIRST DATE OF HEARING ( WHICH HELD IN CAMP O FFICE AT ROORKEE), WHILE ASKING THE ASSESSEES A.R. TO MOVE A FORMAL APPLICATION U/R 46A FOR ADMISSION OF ADDITIO NAL EVIDENCES ON THE NEXT DATE OF HEARING, WHICH WILL B E HELD IN NEXT CAMP AT ROORKEE, BUT HAD NOT GIVEN ANY FURT HER OPPORTUNITY TO THE ASSESSEES A.R. TO FILE THE FORM AL APPLICATION U/R 46A AND TO EXPLAIN ITS CASE. [ NOTE : THE ASSESSEES A.R. WAS HANDED OVER THE IMPUGNED APPELL ATE ORDER IN THE NEXT CAMP AT ROORKEE]. 4. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, TH E LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE DURING THE COUR SE OF APPELLATE PROCEEDINGS, SIMPLY ON THE GROUND THAT TH E ASSESSEE HAD NOT FILED A FORMAL APPLICATION U/R 46A . 5. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, TH E LD. CIT(A) HAS ERRED IN UPHOLDING THE ARBITRARY ACTION OF THE LD. A.O. PARTICULARLY RELATING TO ALLOW ABILITY OF DEDUCTION CLAIMED U/S 80IC. 6. THAT ON THE FACTS OF THE CASE AND UNDER THE LAW, TH E DEDUCTION U/S 80IC OF THE IT ACT, 1961 OUGHT TO HAD BEEN ALLOWED TO THE ASSESSEE. 2. FROM THE ABOVE GROUNDS, IT IS GATHERED THAT MAI N GRIEVANCE OF THE ASSESSEE IS THAT THE EVIDENCE IS F URNISHED UNDER RULE 46A OF THE INCOME TAX RULES (AT) 1963, W ERE NOT CONSIDERED AND THAT THE PROPER OPPORTUNITY OF B EING HEARD WAS NOT GIVEN TO THE ASSESSEE. ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 3 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESS EE FILED THE RETURN OF INCOME ON 30.07.2010 DECLARING NIL IN COME. LATER ON THE CASE WAS SELECTED FOR SCRUTINY. THE AO NOTICED THAT THE ASSESSEE STATED IN FORM NO. 10CCB THAT IT HAD STARTED THE MANUFACTURING OF ELECTRICAL ELECTRODES ON 14.4.2009 AT CLAIMED THE DEDUCTION U/S 80IC OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). HO WEVER, IN THE CERTIFICATE (FORM 119) ISSUED BY THE DISTRICT I NDUSTRIES CENTRE, ROORKEE ON 20.07.2009 THE ACTIVITY OF THE A SSESSEE FIRM WAS PROPOSED TO COMMENCE FROM OCTOBER, 2009. ACCORDINGLY THE DEDUCTION OF RS. 9,75,753/- CLAIMED BY THE ASSESSEE U/S 80IC OF THE ACT WAS DISALLOWED. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MAT TER TO THE LD. CIT(A) AND FURNISHED THE ADDITIONAL EVIDENC ES UNDER RULE 46A OF THEI.T.(AT) RULES, 1963, HOWEVER, THE S AME WERE NOT ADMITTED BY THE LD. CIT(A) FOR THE REASON THAT NO APPLICATION WAS FILED U/R 46A TO ADMIT SUCH ADDITIO NAL EVIDENCES. 5. BEING AGGRIEVED THE ASSESSEE IS IN APPEAL. TH E LD. COUNSEL FOR THE ASSESSEE REFERRED TO PAGE NO. 45 OF THE ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 4 ASSESSEES PAPER BOOK WHICH IS COPY OF THE CERTIFIC ATE ISSUED BY GENERAL MANAGER, DISTRICT INDUSTRIES, HARIDWAR W HEREIN INITIAL DATE OF PRODUCTION/COMMENCEMENT OF SERVICES HAS BEEN MENTIONED AS 24 TH JULY, 2008 AND SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN HOLDING THAT THE COMMENCEME NT OF MANUFACTURING ACTIVITY STARTED IN OCTOBER, 2009. IT WAS FURTHER SUBMITTED THAT THE SAID CERTIFICATE ALTHOUG H WAS FURNISHED BEFORE THE LD. CIT(A) BUT IT WAS NOT CONS IDERED FOR THE REASONS BEST KNOWN TO HIM, IT WAS CONTENDE D THAT THE ASSESSEE RIGHTLY CLAIMED THE EXEMPTION U/S 80IC OF THE ACT, THEREFORE, THE LD. CIT WAS NOT JUSTIFIED IN CO NFIRMING THE ACTION OF THE AO. 6. IN HIS RIVAL SUBMISSIONS, THE LD. AR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND F URTHER SUBMITTED THAT THE DOCUMENTS FURNISHED BEFORE THE L D. CIT(A) WERE NOT FURNISHED BEFORE THE AO AND NO APPLICATION WAS MOVED FOR ADMISSION OF THOSE DOCUME NTS, AS ADDITIONAL EVIDENCES, THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN NOT ADMITTING THE ADDITIONAL EVIDENCES. 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE R ECORD. IN ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 5 THE PRESENT CASE, IT APPEARS THAT THE AO DISALLOWED THE CLAIM OF THE ASSESSEE BY PRESUMING THAT THE MANUFACTURING ACTIVITY COMMENCED IN THE MONTH OF OCTOBER, 2009. HOWEVER, T HE ASSESSEE FURNISHED AN ADDITIONAL EVIDENCE IN THE FO RM OF CERTIFICATE ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, HARDWAR (COPY OF WHICH IS PLACED AT PAGE NO. 45 OF THE ASSESSEES PAPER BOOK), THE SAID DOC UMENT WAS NOT ADMITTED BY THE LD. CIT(A) ONLY FOR THE REA SON THAT A PROPER APPLICATION FOR ADMISSION OF THE SAID DOCU MENT U/R 46A OF THE INCOME TAX RULES, 1963, WAS NOT FURNISH ED BY THE ASSESSEE ALONG WITH THE SAID DOCUMENT. IN THE P RESENT CASE, THE LD. CIT(A) HAS NOT DENIED THAT THE ASSES SEE FURNISHED A CERTIFICATE ISSUED BY THE GENERAL MANAG ER, DISTRICT INDUSTRIES CENTRE, HARIDWAR. IT ALSO APPEA RS THAT THE SAID CERTIFICATE ALTHOUGH WAS NOT AVAILABLE TO THE AO BUT IT WAS FURNISHED BEFORE THE LD. CIT(A) AND IS RELEVANT TO RESOLVE THE PRESENT CONTROVERSY. I, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE T HIS ISSUE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THE DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE THE LD. CIT(A). ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 6 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 24/05/2016). SD/- (N. K. SAINI) ACCO UNTANT MEMBER DATED: 24/ 05/2016 *B.RUKHAIYAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.1346/DEL/2016 BLITZ INTERNATIONAL 7 DATE INITIAL 1. DRAFT DICTATED ON 23.05.2016 2. DRAFT PLACE D BEFORE AUTHOR 23.05.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 24/05/2016 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.