ITO, Ward -36(2), Kolkata, Kolkata V. M/s. Swastic Industries, Kolkata

ITA 1524/KOL/2011

• Counselvise Citation: 152423514 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: MANISH TIWARI
• Keywords: Additional evidence
• Section: 43B

Judgement Text

I.T.A. NO. 1524/KOL. /2011 & C.O. NO. 67/KOL/2011 (IN ITA NO. 1524/KOL/2011) ASSESSMENT Y EAR: 2008-2009 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.K. BANSAL (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 1524/KOL./ 2011 ASSESSMENT YEAR : 2008-2009 INCOME TAX OFFICER,................................ ...............................APPELLANT WARD-36(2), KOLKATA, 18, RABINDRA SARANI, PODDAR COURT, 3 RD FLOOR, KOLKATA-700 001 -VS.- M/S. SWASTIC INDUSTRIES,........................... .............................RESPONDENT 23, N.S. ROAD, 10 TH FLOOR, KOLKATA-700 001 [PAN : AALFS 7834 H] & C.O. NO. 67/KOL/2011 (ARISING OUT OF I.T.A. NO. 1524/KOL/2011) ASSESSMENT YEAR : 2008-2009 M/S. SWASTIC INDUSTRIES,........................... ............................CROSS OBJECTOR 23, N.S. ROAD, 10 TH FLOOR, KOLKATA-700 001 [PAN : AALFS 7834 H] -VS.- INCOME TAX OFFICER,..........................,..... ....................................RESPONDENT WARD-36(2), KOLKATA, 18, RABINDRA SARANI, PODDAR COURT, 3 RD FLOOR, KOLKATA-700 001 APPEARANCES BY: SMT. RANU BISWAS, JCIT, SR. D.R., FOR THE DEPARTMEN T SHRI MANISH TIWARI, A.R., FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JULY 23, 2014 DATE OF PRONOUNCING THE ORDER : JULY 23, 2014 I.T.A. NO. 1524/KOL. /2011 & C.O. NO. 67/KOL/2011 (IN ITA NO. 1524/KOL/2011) ASSESSMENT Y EAR: 2008-2009 PAGE 2 OF 5 O R D E R PER GEORGE MATHAN: ITA 1524/KOL/2011 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-X X, KOLKATA IN APPEAL NO.217/CIT(A)-XX/WD.-36(2)/10-11/KOL DATED 03.08.20 11 FOR THE ASSESSMENT YEAR 2008-09. C.O. 67/KOL/2011 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN REVENUES APPEAL IN ITA NO. 1524/KOL/2011. 2. SMT. RANU BISWAS, LD. JCIT, SR. D.R., REPRESENTED ON BEHALF OF THE REVENUE AND SHRI MANISH TIWARI, A.R., REPRESENTED O N BEHALF OF THE ASSESSEE. 3. IN THE REVENUES APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ACCEPTING FRESH EVIDENCE RELATING TO F ORM NO. 15G IN RESPECT OF DISALLOWANCE OF RS.2,51,712/- U/S 40(A)(IA). (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ACCEPTING FRESH SUBMISSION OF THE ASSE SSEE OF REPAYMENT OF LOAN OF RS.26,25,342/- WHICH WAS PAID FROM JANGALPUR UNIT OF THE ASSESSEE, NEVER SUBMITTED IN THE COURSE OF ASSESSMENT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASS ESSEE COULD NOT PRODUCE/FILE RECONCILIATION/EXPLANATION OF UNUS UAL PAYMENT OF EXCISE DUTY DURING THE ASSESSMENT PROCEE DING. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN IGNORING THAT THE ASSESSEE COULD NOT P RODUCE SUPPORTING BILLS AND PAYMENT DETAILS DURING THE AS SESSMENT RELATING TO POWER AND FUEL EXPENSES. 4. IN THE CROSS OBJECTION, THE ASSESSEE HAS SUPPORT ED THE ORDER OF THE LD. CIT(APPEALS). I.T.A. NO. 1524/KOL. /2011 & C.O. NO. 67/KOL/2011 (IN ITA NO. 1524/KOL/2011) ASSESSMENT Y EAR: 2008-2009 PAGE 3 OF 5 5. IN RESPECT OF GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL, IT WAS SUBMITTED BY THE LD. D.R. THAT THE LD. CIT(APPEALS) HAD ADMITTED ADDITIONAL EVIDENCES IN THE FORM OF THE COPIES OF T HE FORM 15G AS ALSO IN THE FORM OF COPIES OF THE LEDGER ACCOUNTS AND BANK STATEMENT WHICH WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER. IT WAS A LSO THE SUBMISSION THAT THE LD. CIT(APPEALS) HAD ALSO NOT CALLED FOR ANY RE MAND REPORT FROM THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT THE I SSUE IN RESPECT OF GROUNDS NO. 1 & 2 MAY BE RESTORED TO THE FILE OF TH E ASSESSING OFFICER FOR RE-ADJUDICATION. 6. LD. A.R. ADMITTED THAT FRESH EVIDENCES HAD BEEN PRODUCED. IT WAS THE SUBMISSION THAT THESE WERE EVIDENCES WHICH WERE CONSIDERED BY THE LD. CIT(APPEALS) AS THE LD. CIT(APPEALS) COULD CONS IDER THESE EVIDENCES AS THE APPEAL BEFORE THE LD. CIT(APPEALS) WAS ONLY AN EXTENSION OF THE ASSESSMENT PROCEEDINGS. HE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(APPEALS) 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE PR IMARY ASSESSMENT IS DONE BY THE ASSESSING OFFICER. WHEN ADDITIONAL E VIDENCES ARE PRODUCED BEFORE THE LD. CIT(APPEALS), SUCH EVIDENCES MUST BE ADMITTED SUBJECT TO THE CONDITION THAT THERE IS COMPLIANCE OF RULE 46A. ONCE ADDITIONAL EVIDENCES ARE LOOKED INTO BY THE LD. CIT(APPEALS), ADMITTEDLY THE SAME MUST BE PUT TO THE ASSESSING OFFICER FOR HIS REBUTT AL. THE FACT THAT THE ADDITIONAL EVIDENCES HAVE NOT BEEN PUT TO THE ASSES SING OFFICER MAKES THE FINDING OF THE LD. CIT(APPEALS) ON THE BASIS OF SUC H EVIDENCES IMPROPER. IN THESE CIRCUMSTANCES, THE ISSUES IN GROUNDS NO. 1 & 2 OF THE REVENUES APPEAL ARE RESTORED TO THE FILE OF THE ASSESSING OF FICER FOR RE-ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO PRODUCE ALL SUCH EVIDENCES TO SUBSTANTIATE ITS CLAIM. I.T.A. NO. 1524/KOL. /2011 & C.O. NO. 67/KOL/2011 (IN ITA NO. 1524/KOL/2011) ASSESSMENT Y EAR: 2008-2009 PAGE 4 OF 5 8. IN RESPECT OF GROUNDS 3 & 4 OF THE REVENUES APP EAL, IT WAS SUBMITTED BY THE LD. D.R. THAT GROUND NO. 3 WAS AGA INST THE ACTION OF THE LD. CIT(APPEALS) IN DELETING THE DISALLOWANCE OF EX CISE DUTY AND GROUND NO. 4 WAS AGAINST THE ACTION OF THE LD. CIT(APPEALS ) IN DELETING THE DISALLOWANCE ON ACCOUNT OF POWER AND FUEL EXPENSES. LD. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 9. IN REPLY, LD. A.R. DREW OUR ATTENTION PARAS 8 & 9 OF THE ORDER OF THE LD. CIT(APPEALS). IT WAS THE SUBMISSION THAT THE DI SALLOWANCES WERE AD HOC DISALLOWANCES AND THE BOOKS OF ACCOUNT HAD NOT BEEN REJECTED NOR ANY DEFECT FOUND. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(APPEALS). 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF PARA 8 AND PARA 9 OF THE ORDER OF THE LD. CIT(APPEALS) CLEARLY SHOWS THAT THE LD. CIT(APPEALS) WAS DISALLOWED THE DISALLOWANCES ON AC COUNT OF THE EXCISE DUTY AS ALSO THE POWER AND FUEL EXPENSES BECAUSE TH E ASSESSING OFFICER HAD MADE THE AD HOC DISALLOWANCES. A PERUSAL OF THE ORDER OF THE ASSESSING OFFICER IN PARAS 4 & 5 OF HIS ORDER SHOWS THAT THE DISALLOWANCES MADE BY THE ASSESSING OFFICER ARE ON AD HOC BASIS. NO DEFECTS IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE HAVE BEEN FOU ND. FURTHER IN RESPECT OF THE EXCISE DUTY WHICH HAS BEEN DISALLOWE D BY THE ASSESSING OFFICER, THE FACT THAT THE EXCISE DUTY HAS BEEN PAI D BEFORE THE DUE DATE OF FILING THE RETURN ALSO MAKES THE SAID CLAIM ALLOWAB LE UNDER SECTION 43B OF THE ACT. IN THESE CIRCUMSTANCES, AS THE REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDINGS AS ARRIVED AT BY THE LD. CIT( APPEALS) IN RESPECT OF GROUNDS NO. 3 & 4, THE REVENUES APPEAL IN GROUNDS NO. 3 & 4 STANDS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO. 1524/KOL. /2011 & C.O. NO. 67/KOL/2011 (IN ITA NO. 1524/KOL/2011) ASSESSMENT Y EAR: 2008-2009 PAGE 5 OF 5 12. THE CROSS OBJECTION BEING IN SUPPORT OF THE ORD ER OF THE LD. CIT(APPEALS), THE SAME STANDS DISMISSED. 13. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY, 2014. SD/- SD/- P.K. BANSAL GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 23 RD DAY OF JULY, 2014 COPIES TO : (1) INCOME TAX OFFICER, WARD-36(2), KOLKATA, 18, RABINDRA SARANI, PODDAR COURT, 3 RD FLOOR, KOLKATA-700 001 (2) M/S. SWASTIC INDUSTRIES, 23, N.S. ROAD, 10 TH FLOOR, KOLKATA-700 001 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.