RPP Infra Projects Ltd., CHENNAI V. ACIT, Erode

ITA 1654/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8013 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PATHLAVATH PEERYA
• Keywords: Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI [ CAMP: COIMBATORE ] . . . , ! .#$#%, ' !( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ./ ITA NO.1038/MDS/2015 % *% / ASSESSMENT YEAR : 2010-11 & ./ ITA NO.1654/MDS/2016 % *% / ASSESSMENT YEAR : 2011-12 M/S RPP INFRA PROJECTS LTD., C/O SHRI S. SRIDHAR, ADVOCATE, NEW NO.14, OLD NO.82, FLAT NO.5, 1 ST AVENUE, INDIRA NAGAR, ADYAR, CHENNAI - 600 020. PAN : AAACR 9307 E V. THE JOINT COMMISSIONER OF INCOME TAX, RANGE 1, ERODE. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, ERODE. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ./,- 0 1 / RESPONDENT BY : SH. PATHLAVATH PEERYA, CIT 2 0 3' / DATE OF HEARING : 18.01.2017 45* 0 3' / DATE OF PRONOUNCEMENT : 18.01.2017 / O R D E R PER BENCH: BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AG AINST THE RESPECTIVE ORDERS OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-2, COIMBATORE, FOR THE ASSESSMENT YEARS 2010-11 AND 20 11-12. SINCE 2 I.T.A. NO.1038/MDS/15 I.T.A. NO.1654/MDS/16 COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE A PPEALS, WE HEARD BOTH THE APPEALS TOGETHER AND DISPOSING OF TH E SAME BY THIS COMMON ORDER. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IN BOT H THE APPEALS IS WITH REGARD TO DEDUCTION CLAIMED BY THE ASSESSEE UN DER SECTION 80- IA OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') . ACCORDING TO THE LD. COUNSEL, IN FACT, THE ASSESSING OFFICER ALLOWED THE CLAIM OF THE ASSESSEE WHILE COMPLETING THE ASSESSMENT. THE PRIN CIPAL COMMISSIONER IN EXERCISE OF HIS POWER UNDER SECTION 263 OF THE ACT, DIRECTED THE ASSESSING OFFICER TO PASS AN ORDE R AFTER TREATING THE ASSESSEE AS WORKS CONTRACTOR AND NOT AS A DEVEL OPER. THE LD.COUNSEL MADE AN ATTEMPT TO DEMONSTRATE THAT THE ASSESSEE IS A DEVELOPER AND NOT WORKS CONTRACTOR. THE LD.COUNSEL ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS NOT CONSIDERED THIS ISSUE WHILE COMPLETING THE ASSESSMENT. THE LD.COUNSEL HAS ALSO REQUESTED THE BENCH THAT THE MATTER MAY BE REMITTED BACK TO THE F ILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE ON MERIT. 3. ON THE CONTRARY, SH. PATHLAVATH PEERYA, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASS ESSEE IS ONLY A 3 I.T.A. NO.1038/MDS/15 I.T.A. NO.1654/MDS/16 WORKS CONTRACTOR, THEREFORE, IT WAS NOT ELIGIBLE FO R DEDUCTION UNDER SECTION 80-IA OF THE ACT. REFERRING TO PARA 7 OF T HE PRINCIPAL COMMISSIONERS ORDER, THE LD. D.R. SUBMITTED THAT T HE COMMISSIONER HAS DIRECTED THE ASSESSING OFFICER TO CONSIDER THE MATTER AFRESH AND PASS ORDER ON MERIT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT ORDER, HAS ALLOW ED THE CLAIM OF THE ASSESSEE WITHOUT ANY DISCUSSION. THE PROCEEDIN GS BEFORE THE ASSESSING OFFICER BEING A JUDICIAL PROCEEDINGS UNDE R SECTION 136 OF THE ACT, HE IS EXPECTED TO DISCUSS EACH AND EVERY M ATTER WHICH ARISES FOR CONSIDERATION. THE REASON FOR ALLOWING OR DISALLOWING OF THE CLAIM OF THE ASSESSEE HAS TO BE REFLECTED IN TH E ASSESSMENT ORDER. THE APPLICATION OF MIND HAS TO BE REFLECTED IN THE ASSESSMENT ORDER. IT IS NOT IN DISPUTE THAT THE PR OCEEDING BEFORE THE ASSESSING OFFICER IS A JUDICIAL PROCEEDING UNDER SE CTION 136 OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAS TO DISCU SS EVERY ISSUE IN THE ASSESSMENT ORDER AND THE APPLICATION OF MIND SH ALL BE REFLECTED IN THE ASSESSMENT ORDER. 4 I.T.A. NO.1038/MDS/15 I.T.A. NO.1654/MDS/16 5. THE ASSESSING OFFICER HAS TO EXAMINE ALL THE MAT ERIAL FACTS AND BRING ON RECORD THE REASONS FOR ALLOWING OR DIS ALLOWING THE CLAIM OF THE ASSESSEE. THE REASONS RECORDED IN THE ASSES SMENT ORDER WOULD BE THE LIVE LINK TO THE MATERIAL AVAILABLE ON RECORD AND THE MIND OF THE DECISION MAKER. THEREFORE, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECO NSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE CLAIM OF THE ASSESSEE UNDER S ECTION 80-IA OF THE ACT IS REMANDED BACK TO THE FILE OF THE ASSESSI NG OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER IN TH E LIGHT OF THE MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATION MADE BY THE PRINCIPAL COMMISSIONER IN T HE IMPUGNED ORDER, AND SHALL PASS A SPEAKING ORDER ACCORDINGLY. THE ASSESSEE IS AT LIBERTY TO FURNISH ANY FURTHER MATERIAL. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5 I.T.A. NO.1038/MDS/15 I.T.A. NO.1654/MDS/16 ORDER PRONOUNCED AND DICTATED IN THE OPEN COURT O N 18 TH JANUARY, 2017 AT COIMBATORE. SD/- SD/- ( ! .#$#% ) ( . . . ) (ABRAHAM P. GEORGE) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER COIMBATORE, 7 /DATED, THE 18 TH JANUARY, 2017. KRI. 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. PRINCIPAL CIT-2, COIMBATORE 4. 9; .3 /DR 5. <% = /GF.