Orient Paper & Industries Limited, Kolkata V. DCIT, Circle - 6, Kolkata, Kolkata

ITA 170/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100228 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 02-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: R N BAJORIA; ASIM CHOUD HURY
• Keywords: Opportunity of being heard; Earning of tax free income; Capital receipt
• Section: 234B; 14A

Judgement Text

I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 170/KOL/ 2012 ASSESSMENT YEAR : 2008-2009 ORIENT PAPER & INDUSTRIES LIMITED,................. ......................APPELLANT 9/1, R.N. MUKHERJEE ROAD, 5 TH FLOOR, KOLKATA-700 001 [PAN : AAACO 3279 J] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ..................RESPONDENT CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI R.N. BAJORIA, SR. ADVOCATE AND SHRI ASIM CHOUD HURY, ADVOCATE , FOR THE ASSESSEE SHRI KALYAN NATH, JCIT, SR. D.R., FOR THE DEPARTMENT NATE OF CONCLUDING THE HEARING : NOVEMBER 27, 2015 DATE OF PRONOUNCING THE ORDER : DECEMBER 04, 2015 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-VI, KOLKATA DA TED 22.12.2011 FOR THE ASSESSMENT YEAR 2008-09 AND THE GROUNDS AS ORIG INALLY RAISED THEREIN READ AS UNDER:- 1.(A) THE COMMISSIONER OF INCOME TAX (APPEALS) ERRE D ON FACTS OF THE CASE AND IN LAW IN CONFIRMING ALLOCATI ON OF INTEREST OF RS.37,30,477/- MADE BY THE ASSESSING OF FICER AGAINST EXEMPT DIVIDEND INCOME UNDER SECTION 14A OF THE INCOME TAX ACT READ WITH RULE 8D OF THE INCOME TAX RULES. ON PROPER APPRECIATION OF FACTS OF THE CASE AND COR RECT CONSTRUCTION OF LAW, THE CIT(A) SHOULD NOT HAVE UPH ELD THE ALLOCATION OF INTEREST UNDER SECTION 14A OF THE ACT READ WITH RULE 8D OF THE RULES. (B) THE CIT(A) ERRED ON THE FACTS OF THE CASE AND I N LAW IN CONFIRMING ALLOCATION OF INTEREST RELATED TO/ IN CURRED I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 7 FOR/ ATTRIBUTABLE TO BUSINESS AND NOT RELATING TO D IVIDEND INCOME. 2. THE CIT(A) ERRED IN HOLDING THAT MAT CREDIT HAS TO BE ALLOWED AFTER CALCULATION OF TAX + SURCHARGE + E DUCATION CESS. THE CIT(A) SHOULD HAVE HELD THAT FIRST THE MA T CREDIT HAS TO BE ALLOWED FROM GROSS INCOME TAX AND THEN SURCHARGE + EDUCATION CESS IS LEVIABLE ON BALANCE I NCOME- TAX. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, A SIMILAR ISSUE AS INVOLVED IN GROUND NO. 1 RELATING TO THE TRANSACTIONS ON ACCOUNT OF IN TEREST UNDER SECTION 14A READ WITH RULE 8D OF THE INCOME TAX RULES WAS A LSO INVOLVED IN THE CASE OF HINDUSTAN MOTORS LIMITED IN THE IDENTICAL F ACTS AND CIRCUMSTANCES AND THE SAME HAS ALREADY BEEN DECIDED BY THIS TRIBU NAL VIDE ITS ORDER DATED 20.11.2015 PASSED IN ITA NO. 171/KOL/2012. A COPY OF THE SAID ORDER IS ALSO PLACED ON RECORD BEFORE US AND PERUSA L OF THE SAME SHOWS THAT A SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUN AL IN FAVOUR OF THE ASSESSEE VIDE PARAGRAPH NOS. 10 & 11 OF ITS ORDER, WHICH READ AS UNDER:- 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND A LSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE INVESTMENT IN SHARES ON WHICH THE EXEMPT DIVIDEND INCOME IS EARNED BY THE ASSESSEE DURING TH E YEAR UNDER CONSIDERATION WAS ACTUALLY MADE IN THE EARLIE R YEARS AND IN THE ASSESSMENT COMPLETED FOR ASSESSMENT YEAR 200 6-07 UNDER SECTION 143(3), NO DISALLOWANCE ON ACCOUNT OF INTER EST WAS MADE BY THE ASSESSING OFFICER UNDER SECTION 14A AFT ER RECORDING A FINDING THAT THE BORROWED FUNDS WERE EN TIRELY UTILIZED BY THE ASSESSEE FOR THE PURPOSE OF BUSINES S AND THE SAME WERE NOT USED FOR MAKING ANY INVESTMENT IN SHA RES. EVEN IN THE ASSESSMENT COMPLETED FOR A.Y. 2007-08 UNDER SECTION 143(3), NO DISALLOWANCE UNDER SECTION 14A ON ACCOUN T OF INTEREST WAS MADE BY THE ASSESSING OFFICER THEREBY ACCEPTING THAT THE INVESTMENT IN SHARES WAS MADE BY THE ASSES SEE OUT OF ITS OWN FUNDS AND THERE WAS NO UTILIZATION OF INTER EST BEARING BORROWED FUNDS FOR MAKING SUCH INVESTMENT. AS POINT ED OUT BY THE LD. COUNSEL FOR THE ASSESESE FROM THE RELEVANT DOCUMENTARY EVIDENCE, THE INVESTMENT MADE IN SHARES BY THE ASSE SSEE- COMPANY IN THE EARLIER YEARS HAS CONTINUED SUBSTANT IALLY IN THE YEAR UNDER CONSIDERATION AND THERE BEING NO FRESH I NVESTMENT MADE BY THE ASSESSEE IN SHARES, IT FOLLOWS THAT INV ESTMENT IN SHARES IS ENTIRELY MADE BY THE ASSESSEE OUT OF ITS OWN FUNDS AND THERE WAS NO UTILIZATION OF BORROWED FUNDS FOR MAKI NG SUCH I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 7 INVESTMENT AS FOUND BY THE ASSESSING OFFICER HIMSEL F WHILE COMPLETING THE ASSESSMENTS FOR THE EARLIER YEARS. I N THIS REGARD, LD. D.R. HAS CONTENDED THAT RULE 8D HAVING BEEN MAD E APPLICABLE FOR THE YEAR UNDER CONSIDERATION FOR THE FIRST TIME, THE ISSUE HAS TO BE LOOKED INTO FROM DIFFERENT ANGL E AND THE VIEW TAKEN BY THE ASSESSING OFFICER IN THE EARLIER YEARS HAS NO RELEVANCE. WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LD. D.R. ONCE IT IS FOUND THAT THE INVESTMENT IN SHARES IS MADE BY THE ASSESSEE OUT OF ITS OWN FUNDS AND THERE IS NO U TILIZATION OF BORROWED FUNDS FOR MAKING SUCH INVESTMENT, WE ARE O F THE VIEW THAT NO DISALLOWANCE ON ACCOUNT OF INTEREST UNDER S ECTION 14A CAN BE MADE EVEN BY APPLYING RULE 8D AS THE SAID RU LE 8D WILL HAVE APPLICATION ONLY IN SUCH CASES WHERE THERE IS ANY NEXUS BETWEEN THE INTEREST BEARING BORROWED FUNDS AND INV ESTMENT MADE IN SHARES. EVEN A PERUSAL OF THE BALANCE-SHEET OF THE ASSESSEE-COMPANY AS ON 31.03.2008 SHOWS THAT SUFFIC IENT OWN FUNDS TO THE EXTENT OF ABOUT RS.132 CRORES WERE AVA ILABLE WITH THE ASSESSEE-COMPANY AT THE RELEVANT TIME AND THE S AME BEING MORE THAN THE INVESTMENT OF ABOUT RS.72 CRORES MADE IN SHARES, WE ARE OF THE VIEW THAT THERE WAS NO CASE FOR MAKIN G DISALLOWANCE ON ACCOUNT OF INTEREST UNDER SECTION 1 4A EVEN BY APPLYING RULE 8D AS THE ASSESSEE HAD SUFFICIENT OWN FUND TO MAKE INVESTMENT IN SHARES AND THE INTEREST BEARING BORROWED FUNDS WERE NOT UTILIZED FOR MAKING SUCH INVESTMENT. 11. IT IS ALSO OBSERVED THAT IN THE COMPUTATION OF TOTAL INCOME, DISALLOWANCE OF RS.2,47,79,104/- WAS OFFERE D BY THE ASSESSEE UNDER SECTION 14A IN RELATION TO THE EXPEN DITURE INCURRED IN RELATION TO EARNING OF EXEMPT INCOME AN D THERE WAS NO REASON GIVEN BY THE ASSESSING OFFICER, HAVING RE GARD TO THE ACCOUNTS OF THE ASSESSEE, TO SHOW HIS DISSATISFACTI ON WITH THE CORRECTNESS OF QUANTUM OF EXPENDITURE DISALLOWED BY THE ASSESSEE UNDER SECTION 14A. IN THE CASE OF REI AGRO LIMITED (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE, IT WAS HELD BY THE COORDINATE BENCH OF THIS TRIBUNAL THAT WHERE TH E ASSESSEE MAKES A CLAIM THAT ONLY A PARTICULAR AMOUNT IS TO B E DISALLOWED UNDER SECTION 14A AND IF THE ASSESSING OFFICER PROP OSES TO INVOKE SECTION 14A, HE HAS TO RECORD THE SATISFACTI ON AS TO HOW THE CLAIM OF THE ASSESSEE IS NOT CORRECT HAVING REG ARD TO THE ACCOUNTS OF THE ASSESSEE. IT WAS HELD THAT IF THERE IS NO SUCH SATISFACTION RECORDED BY THE ASSESSING OFFICER, NO DISALLOWANCE COULD BE MADE BY HIM BY INVOKING THE PROVISIONS OF SECTION 14A. KEEPING IN VIEW THIS DECISION OF THE COORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF REI AGRO LIMITED, WHICH HAS BEEN AFFIRMED BY THE HONBLE CALCUTTA HIGH COURT, WE HOL D THAT IN THE ABSENCE OF REQUISITE SATISFACTION RECORDED BY T HE ASSESSING OFFICER SHOWING HOW THE DISALLOWANCE OFFERED BY THE ASSESSEE UNDER SECTION 14A WAS NOT CORRECT HAVING REGARD TO ITS BOOKS OF ACCOUNT, IT WAS NOT PERMISSIBLE TO THE ASSESSING OF FICER IN LAW TO INVOKE SECTION 14A AND MAKE A FURTHER DISALLOWAN CE. AS SUCH, CONSIDERING ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 7 CONFIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 14A READ WITH RULE 8D IS NOT SUSTAINABLE EITHER IN LAW OR ON THE FACTS OF THE CASE AND DELETING THE SAME, WE ALLOW GROUND NO. 1 O F THE ASSESSEES APPEAL. AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WELL A S ALL THE MATERIAL FACTS RELEVANT THERETO ARE ADMITTEDLY SIMILAR TO THE CASE OF M/S. HINDUSTAN MOTORS LIMITED (SUPRA), WE FOLLOW THE DECISION REND ERED IN THE SAID CASE AND DELETE THE DISALLOWANCE MADE BY THE ASSESSING O FFICER AND CONFIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 14A OF THE AC T READ WITH RULE 8D. GROUND NO. 1 IS ACCORDINGLY ALLOWED. 3. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 2 RE LATING TO THE DISPUTE AS REGARDS THE STAGE AT WHICH MAT CREDIT IS TO BE ALLOWED, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE SAME IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE B Y THE DECISION OF THE TRIBUNAL RENDERED IN THE CASE OF HINDUSTAN MOTORS L IMITED VIDE ITS ORDER DATED 20.11.2015 (SUPRA), WHEREIN A SIMILAR ISSUE H AS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL FOR THE FOLLOW ING REASONS GIVEN IN PARAGRAPH 13 OF ITS ORDER :- 13. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 3 RELATING TO THE ASSESSEES CLAIM FOR ALLOWING MAT CREDIT AGAINS T TAX BEFORE LEVY OF SURCHARGE AND EDUCATION CESS, THE LD. COUNS EL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US HAS RELIE D, INTER ALIA, ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS.- VACMENT INDIA REPORTED IN 369 ITR 304, WHEREIN IT WAS HELD BY RELYING ON THE ENTRIES MADE IN RELEVANT FORM ITR-6 PROVIDING THE METHOD OF COMPUTATION OF TAX LIABILIT Y THAT THE TAX PAYABLE IS TO BE ARRIVED AT AFTER DEDUCTING C REDIT ON ACCOUNT OF MINIMUM ALTERNATE TAX FROM GROSS TAX PA YABLE AND ON THIS AMOUNT OF TAX PAYABLE, SURCHARGE AND CESS ARE TO BE COMPUTED. HOWEVER, AS HELD BY THE HONBLE SUPREME C OURT IN THE CASE OF CIT VS.- TULSYAN NEC LIMITED REPORTED IN 3 30 ITR 226 IN THE CONTEXT OF CALCULATION OF INTEREST UNDER SECTI ON 234A, 234B AND 234C, IT IS IMMATERIAL THAT RELEVANT FORM PRESC RIBED UNDER THE INCOME TAX RULES PROVIDED FOR SET OFF OF THE MA T CREDIT BALANCE AGAINST THE AMOUNT OF TAX PLUS INTEREST. IT WAS HELD THAT THIS METHOD OF WORKING GIVEN IN THE RELEVANT FORM W AS DIRECTLY CONTRARY TO A PLAIN READING OF SECTION 115JAA(4) AN D A FORM PRESCRIBED UNDER THE RULES, IN ANY CASE, CAN NEVER HAVE ANY EFFECT ON THE INTERPRETATION OR OPERATION OF THE PA RENT STATUTE. IT IS ALSO INTERESTING TO NOTE THAT IN THE RELEVANT WO RKING AS GIVEN ON PAGE NO. 235 OF THE REPORT AND APPROVED BY THE H ONBLE I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 5 OF 7 SUPREME COURT, THE SET OFF OF MAT CREDIT WAS ALLOWE D ONLY AFTER LEVY OF SURCHARGE ON THE TAX PAYABLE. IN OUR OPINIO N, THE ISSUE INVOLVED IN GROUND NO. 3 OF THE ASSESSEES APPEAL T HUS IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. TULSYAN NEC LIMITED (SUPRA), AND RESPECTFULLY FOLLOWING THE SAME, WE UP HOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) HOLDING THAT MAT CREDIT HAS TO BE ALLOWED AFTER CALCULATION OF TAX PLUS SUR CHARGE AND EDUCATION CESS. GROUND NO. 3 IS ACCORDINGLY DISMISS ED. 4. AS THE ISSUE INVOLVED IN THE PRESENT CASE IS SIM ILAR TO THE ISSUE INVOLVED IN THE CASE OF HINDUSTAN MOTORS LIMITED (S UPRA), WE RESPECTFULLY FOLLOW THE DECISION OF THE TRIBUNAL RENDERED IN THE SAID CASE AND UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSUE. GROUND NO. 2 OF THE ASSESSEES APPEAL IS ACCORDINGLY DISMISSED. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E THE TRIBUNAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND AS ADDITIO NAL GROUND WITH AN APPLICATION SEEKING ADMISSION THEREOF:- FOR THAT THE SUM OF RS.10.36 CRORES REALIZED ON SA LE OF 1,07,353 UNITS OF CERS ARE CAPITAL RECEIPT NOT LIAB LE TO TAX AND THE SAME SUM BE DELETED FROM THE ASSESSED INCOME. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THE APPLICATION OF THE ASSESSEE FOR ADMISSION OF THE ABOVE ADDITIONAL GROUND. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT ALTHOUG H THE AMOUNT IN QUESTION RECEIVED AS COMPENSATION BY THE ASSESSEE B Y WAY OF CARBON CREDIT IN RESPECT OF ITS CEMENT DIVISION WAS OFFERE D TO TAX IN THE RETURN OF INCOME AND THE ISSUE RELATING TO ITS EXEMPTION BEIN G CAPITAL RECEIPT WAS NOT RAISED EITHER BEFORE THE ASSESSING OFFICER OR B EFORE THE LD. CIT(APPEALS), THE SAME IS BEING RAISED BEFORE THE T RIBUNAL FOR THE FIRST TIME BY WAY OF AN ADDITIONAL GROUND ON THE BASIS OF VARIOUS JUDICIAL PRONOUNCEMENTS COMING TO THE NOTICE OF THE ASSESSEE AFTERWARDS, WHEREIN THE SIMILAR RECEIPT HAS BEEN HELD TO BE A CAPITAL R ECEIPT NOT CHARGEABLE TO TAX. HE HAS CONTENDED THAT THE ISSUE RAISED IN THE ADDITIONAL GROUND IS PURELY A LEGAL ONE AND SINCE ALL THE MATERIAL FACTS RELEVANT TO DECIDE THE SAME ARE ALREADY ON THE RECORD, THE SAME IS DESERVE D TO BE ADMITTED. I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 6 OF 7 ALTHOUGH THE LD. D.R. HAS CONTENDED THAT THE ADJUDI CATION OF THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND MAY REQUIRE INVESTIGATION INTO NEW FACTS, HE HAS NOT BEEN ABLE TO POINT OUT S PECIFICALLY SUCH FACTS, WHICH ARE NOT AVAILABLE ON RECORD. MOREOVER, AS RIG HTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, THE QUESTION INVOLVED IN THE ADDITIONAL GROUND IS WHETHER THE RECEIPTS FROM CARBON CREDIT A RE IN THE NATURE OF CAPITAL OR REVENUE RECEIPT AND WHATEVER LIMITED FAC TS, WHICH ARE REQUIRED TO BE CONSIDERED/EXAMINED TO DECIDE THE SAME, ARE A LREADY AVAILABLE ON RECORD IN THE ANNUAL REPORT ITSELF FILED BY THE ASS ESSEE-COMPANY. 7. WHILE OBJECTING TO THE ADMISSION OF ADDITIONAL G ROUND FILED BY THE ASSESSEE, THE LD. D.R. IN SUPPORT OF THE REVENUES CASE HAS RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS.- STEPWELL INDUSTRIES LIMITED & OTHERS REPORTED IN 228 ITR 171 AND POINTED OUT THAT THE DECISION OF THE TRIBUNAL IN THE SAID CASE TO AL LOW CERTAIN CLAIM MADE BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBU NAL WAS NOT UPHELD BY THE HONBLE APEX COURT. IT IS, HOWEVER, OBSERVED TH AT NEW CLAIM MADE BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL IN THE SAID CASE WAS ALLOWED BY IT AND SINCE THE SAME WAS ALLOWED BY THE TRIBUNAL ON ASSUMPTION OF CERTAIN FACTS WITHOUT VERIFICATION OF THE RELEVANT DETAILS OR PARTICULARS, THE ACTION OF THE TRIBUNAL WAS NOT UPH ELD BY THE HONBLE SUPREME COURT. THE POWER OF THE TRIBUNAL TO ENTERTA IN THE NEW CLAIM RAISED FOR THE FIRST TIME BEFORE IT WAS NOT UNDER C HALLENGED IN THE SAID CASE AND AS IS EVIDENT FROM THE QUESTION REFERRED T O THE HONBLE SUPREME COURT, THE DECISION OF THE TRIBUNAL ALLOWING THE CL AIM OF THE ASSESSEE FOR WEIGHTED DEDUCTION UNDER SECTION 35B OF THE ACT, WA S CHALLENGED ON MERIT. ON THE OTHER HAND, IN THE CASE OF CIT VS.- PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. REPORTED IN 349 ITR 336 (BOM .), THE ISSUE SPECIFICALLY RAISED BEFORE THE HONBLE BOMBAY HIGH COURT WAS REGARDING THE POWER OF THE APPELLATE AUTHORITIES TO ENTERTAIN AND CONSIDER NEW CLAIM NOT MADE IN THE RETURN AND IT WAS HELD BY THE HONBLE BOMBAY HIGH COURT THAT THE APPELLATE AUTHORITIES HAVE POWER TO CONSIDER CLAIM NOT MADE IN THE RETURN OF INCOME. IT IS ALSO OBSERVED T HAT IN THE CASE OF ULTRA I.T.A. NO. 170/KOL./2012 ASSESSMENT YEAR: 2008-2009 PAGE 7 OF 7 TECH CEMENT LIMITED (ITA NO. 1348/MUM/2012 DATED 28 .02.2014), A SIMILAR ISSUE CLAIMING RECEIPT FROM CARBON CREDIT A S CAPITAL RECEIPT NOT CHARGEABLE TO TAX WAS RAISED BY THE ASSESSEE FOR TH E FIRST TIME BEFORE THE TRIBUNAL BY WAY OF ADDITIONAL GROUND AND THE SAME W AS ADMITTED BY THE COORDINATE BENCH OF THIS TRIBUNAL BY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CO. LIMITED VS.- CIT REPORTED IN 229 ITR 383. KEEPING IN VIEW THE SAID DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL AS WELL AS HA VING REGARD TO ALL THE RELEVANT ASPECTS OF THE CASE AS DISCUSSED ABOVE, WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND RESTORE THE ISSUE RAISED THEREIN TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME ON MERIT AFTER VERIFYING ALL THE RELEVANT FACTS OF THE CASE FROM RECORD AND AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 04, 2015. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 4 TH DAY OF DECEMBER, 2015 COPIES TO : (1) ORIENT PAPER & INDUSTRIES LIMITED, 9/1, R.N. MUKHERJEE ROAD, 5 TH FLOOR, KOLKATA-700 001 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-6, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-VI, KOLK ATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.