ACIT, Bhubaneswar V. Jaysons Resorts (P) Ltd, Puri

ITA 150/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4387 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 27-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 23-04-2010
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: S VENKATESWARALU
• Keywords: Additional evidence; Assessment record

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 150/CTK/2010 (ASSESSMENT YEAR 2006 - 07) ASST.COMMISSIONER OF INCOME - TAX, CIRCL E 2(1), BHUBANESWAR VERSUS JAYSONS RESORTS (P) LTD., KALIKA DEVI SAHI, PURI 752 001 PAN: AABCJ 3488 P (APPELLANT) (RESPONDENT) FOR THE APPELLANT: S MT. PARAMITA TRIPATHY, DR FOR THE RESPONDENT SHRI S.VENKATESWARALU, AR ORDER SHRI K.S.S.PRASAD RAO, J UDICIAL MEMBER : THIS APPEAL IS FILED BY THE DEPARTMENT HAVING BEEN AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.15.12.2009 FOR THE ASSESSMENT YEAR 2006 - 07 IN THE CASE OF THE ASSESSEE. 2. THE SOLE GROUND RAISED BY THE DEPARTMENT IN THIS APPEAL IS THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN ALLOWING DEDUCTION U/S.80IB(1 0 ) OF THE INCOME - TAX ACT,1961 BY CONSIDERING FRESH ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE COMPANY WITHOUT SEEKING THE VIEWS OF THE ASSESSING OFFICER IN VIOLATIO N OF RULE 46A OF THE I.T.RULES,1962. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUE RAISED BY THE ASSESSEE AND ITS LEGAL IMPLICATIONS. 4. THE LEARNED DR HAS VEHEMENTLY ARGUED CONTENDING INTER ALIA THAT THE LEARNED CIT(A) HAS ALLOWED DEDUCTION U/S.80IB( 10) OF THE ACT TO THE ASSESSEE IN GROSS VIOLATION OF RULE 46A OF THE I.T.RULES,1962 BY TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE. THE DEPARTMENT IS ENTITLED TO HAVE ITS SAY ON THE ADDITIONAL EVIDENCE THAT MIGHT HAVE BEEN BR OUGHT BEFORE THE LEARNED CIT(A) BEFORE THOSE BEING ACCEPTED AND ACTED UPON. BUT THIS PROCEDURE ITA NO.150/CTK/2010 2 WAS NOT COMPLIED WITH BY THE LEARNED CIT(A) AND HENCE IN THAT WAY THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS NOT SUSTAINABLE FOR LEGAL SCRUTINY. ACCORDINGLY THE LEARNED DR PRAYED FOR SETTING ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) BY ALLOWING THE DEPARTMENTS APPEAL. 5. THE LEARNED AR OF THE ASSESSEE, ON THE OTHER HAND, HAS VEHEMENTLY ARGUED CONTENDING INTERALIA THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S .80IB(10) OF THE I.T.ACT BUT THE SAME WAS DENIED BY THE ASSESSING OFFICER, AGAINST WHICH THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFORE THE LEARNED CIT(A) THE ASSESSEE HAS MADE OUT FROM THE RECORDS TH OSE WERE MADE AVAILABLE BEFORE THE ASSESSING O FFICER THAT THE ASSESSEE IS ENTITLED FOR THE RELIE F AS CLAIMED U/S.80IB(10) OF THE I.T.ACT. THE LEARNED CIT(A) AFTER VERIFYING THE MATERIAL ALREADY AVAILABLE WITH THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTION U /S.80IB(10) OF THE I.T.ACT AND ACCORDINGLY GRANTED THE RELIEF. THEREFORE, IT IS NOT CORRECT TO SAY THAT THE ASSESSEE HAS PRODUCED ANY ADDITIONAL EVIDENCE BEFORE THE LEARNED CIT(A) CONSIDERING WHICH ONLY THE LEARNED CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE. THEREFORE, THE GROUND RAISED BY THE DEPARTMENT IS DEVOID OF MERITS AND DESERVES TO BE DISMISSED BY UPHOLDING THE ORDER OF THE LEARNED CIT(A). 6. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IT IS FOUND THAT DURING THE ASSESSMENT PROCEEDINGS ITSELF BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS MADE AVAILABLE ALL THE RECORDS AND DOCUMENTS IN SUPPORT OF ITS CLAIM OF DEDUCTION U /S.80IB(10) OF THE I.T.ACT. BUT THE LEARNED ASSESSING OFFICER HAS NOT ACCEPTED THE CLAIM OF THE ASSESSEE. HENCE, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS DEMONSTRATED AS PER RECORDS MADE AVAILABLE WITH THE ASSESSING ITA NO.150/CTK/2010 3 OFFICER TO THE EFFECT THAT THE ASSESSEE HAS PRODUCED ALL THE NECESSARY MATERIAL SUPPORTING ITS CLAIM U /S.80IB(10) OF THE I.T.ACT. ON VERIFICATION OF THE SAME, THE LEARNED CIT(A) HAS FOUND THAT THE ASSESSEE HAS SUBSTANTIATED ITS CLAIM U/S.80IB(10) OF THE I.T.ACT AND ACCORDINGLY GRANTED THE RELIEF TO THE ASSESSEE. NOWHERE IT WAS MENTIONED IN THE IMPUGNED ORD ER THAT THE ASSESSEE HAS PRODUCED ANY ADDITIONAL EVIDENCE BEFORE THE LEARNED CIT(A) OTHER THAN THOSE WERE ALREADY AVAILABLE TO THE ASSESSING OFFICER IN THE ASSESSMENT RECORD. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ORDER PASSED BY THE LEARNED CIT (A) CANNOT BE SAID TO BE IN GROSS VIOLATION OF RULE 46A OF THE I.T.RULES. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE GROUND RAISED BY THE DEPARTMENT AND THE SAME IS DISMISSED BEING DEVOID OF MERIT. THE IMPUGNED ORDER OF THE LEARNED CIT(A) THEREF ORE IS UPHELD AND THE APPEAL OF THE DEPARTMENT IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. PRONOUNCED IN OPEN COURT ON DT. 17.06.2011 S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 17.06.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), BHUBANESWAR 2. THE RESPONDENT: JAYSONS RESORTS (P) LTD., KALIKA DEVI SAHI, PURI 752 001. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.