DCIT, Circle 8, Kolkata V. M/s. Bhagawati Gases Ltd., Kolkata

ITA 1744/KOL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2486 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2010
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 08-09-2008
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Assessee Lawyers: M D SHAH
• Keywords: Additional evidence

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - C , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI C.D. RAO, ACCOUNTANT MEMBER . / I.T.A.NO. 1515 AND 1744/KOL/2008 / ASSESSMENT YEAR S 2003 - 04 AND 2004 - 05 DCIT, CIRCLE 8, KOLKATA. - - - VERSUS - . M/S.BHAGAWATI GASES LTD., 67, PARK STRET, KOLKATA 700 016 PAN AABCB 0589 M ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI PIYUSH KOLHE, DR / FOR THE RESPONDENT : / SHRI M.D.SHAH, AR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THE REVENUE HA S FILED THESE TWO APPEALS AGAINST ORDER DT.9.5.2008 AND 4.6.2008 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) VIII, KOLKATA FOR THE ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 RESPECTIVELY, ON THE FOLLOWING GROUNDS. GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2003 - 0 4 : GROUND NO.1 : THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT(A) ERRED IN ALLOWING ASSESSEES APPEAL IN RESPECT OF DISALLOWANCE OF RS.43,90,203/ - ON ACCOUNT OF REPAIRS OF BUILDING, PIPE LINE AND PLANT & MACHINERY BY ACCEPTING NEW FACTS IN VIOLATION OF PROVISION OF SECTION 46A WHEN THE ASSESSEE DID NOT PRODUCE THESE FACTS BEFORE THE ASSESSING OFFICER AND THERE WAS NO REASON FOR NOT PRODUCING THE SAME AND THAT NONE OF THE CONDITIONS REQUIRED FOR ACCEPTING EVIDENCE AS STIPULATED UNDER RULE 46A(1) OF INCOME TAX RULES, 1962 APPEARED TO HAVE BEEN SATISFIED. GROUND NO.2 : THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT(A) ERRED IN DELETING THE ADDITIONS OF RS.7,71,000/ - EVEN WHEN THE DETAILS IN THIS REGARD WERE NOT PRODUCED BE FORE THE A.O. IN COURSE OF ASSESSMENT PROCEEDINGS AND THE CONDITIONS AS LAID DOWN IN RULE 46A(I) DID NOT APPEAR TO HAVE BEEN SATISFIED. GROUND NO.3 : THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT(A) ERRED IN ALLOWING ASSESSEES CLAIM OF EXPENDITURE OF RS.12,16,498/ - ON ACCOUNT OF TRANSPORTATION EXPENSES EVEN WHEN THE / I.T.A.NO.1515 AND 1744/KOL/2008 2 DETAILS IN THIS REGARD WERE NOT PRODUCED BEFORE THE A.O. IN COURSE OF ASSESSMENT PROCEEDINGS AND THE CONDITIONS AS LAID DOWN IN RULE 46A(1) DO NOT APPEAR TO HAVE BEEN SATISF IED. GROUND NO.4 : THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT(A) ERRED IN ACCEPTING THE CLAIM OF ASSESSEE IN RESPECT OF RENT PAID OF RS.11,52,000/ - EVEN WHEN THE ASSESSEE FAILED TO SUBMIT DETAILS AS REQUESTED BY THE A.O. DURING THE A SSESSMENT PROCEEDINGS. LD.CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE EVEN WHEN THE DETAILS AS REQUESTED BY THE A.O. WERE NOT SUBMITTED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WITHOUT ANY SUFFICIENT CAUSE IN VIOLATION OF RULE 46A OF I.T.RULES,1961. GROUND NO.5 : LD.CIT(A) ERRED IN FACTS AND CIRCUMSTANCES AND IN LAW IN ALLOWING ASSESSEES CLAIM IN RESPECT OF MISCELLANEOUS EXPENSES OF RS.3,28,408/ - EVEN WHEN THE ASSESSEE FAILED TO EXPLAIN THE PURPOSE OF SUCH EXPENDITURE AND DID NOT GIVE DETAILS AS REQ UESTED BY THE A.O. DURING ASSESSMENT PROCEEDINGS. GROUND NO.6 : LD.CIT(A) ERRED IN FACTS AND CIRCUMSTANCES AND IN LAW IN ALLOWING ASSESSEES CLAIM IN RESPECT OF POWER & WATER EXPENSES OF RS.41,56,273/ - EVEN WHEN THE ASSESSEE FAILED TO GIVE DETAILS OF THE P ERIOD FOR WHICH THE PLANT WAS SHUT DOWN DURING ASSESSMENT PROCEEDINGS OR SUBSEQUENTLY. GROUND NO.7 : THAT APPELLANT PRAYS LEAVE TO ADD, ALTER OR MODIFY ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 1. THAT LD. CIT(A) ERRED ON FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW IN ALLOWING RENT CLAIM OF RS.8,78,400/ - WHEN NO DETAILS OF PREMISE TAKEN ON RENT WAS GIVEN BY THE ASSESSEE, PARTICULARLY WHEN PAYMENT IS MADE TO PERSON COVERED U/S.40A(92) OF INCO ME - TAX ACT,1961. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR ABROGATE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 2. DURING THE COURSE OF HEARING, THE LEARNED DR SUBMITTED THAT THE LEARNED CIT(A) HAS DELETED VARIOUS ADDITIONS MADE IN BOTH THE AYS U NDER CONSIDERATION BY ADMITTING ADDITIONAL EVIDENCES AND CONSIDERING THE SAME WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME , EVENTHOUGH THE ASSESSING OFFICER OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE IN HIS REMAND REPORT, W HICH IS IN VIOLATION OF PROVISIONS OF RULE 46A OF THE INCOME - TAX / I.T.A.NO.1515 AND 1744/KOL/2008 3 RULES,1962. THE LEARNED AR OF THE ASSESSEE CONCEDED THAT THE ASSESSEE FILED ADDITIONAL EVIDENCE/DOCUMENTS BEFORE THE LEARNED CIT(A) AND THE LEARNED CIT(A) HAS DELETED THE ADDITIONS MADE BY TH E ASSESSING OFFICER BY CONSIDERING THE SAID ADDITIONAL EVIDENCE/DOCUMENTS. THE LEARNED AR OF THE ASSESSEE ALSO CONCEDED THAT THE ASSESSING OFFICER IN HIS REPORT HAS OBJECTED TO ADMISSION OF ADDITIONAL EVIDENCE FILED BEFORE THE LEARNED CIT(A) AND DID NOT OF FER HIS COMMENT ON MERITS ON THE ADDITIONS MADE WHILE COMPLETING THE ASSESSMENT S . 3. CONSIDERING THE ABOVE FACTS, BOTH THE LEARNED REPRESENTATIVES OF THE PARTIES SUBMITTED THAT THE MATTER COULD BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR HIS FRESH CON SIDERATION OF THE ADDITIONS IN QUESTION AFTER CONSIDERING SUCH EVIDENCES AS MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM AND AFTER GIVING DUE OPPORTUNITY O F HEARING TO THE ASSESSEE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE ISSUES INVOLVED IN TH ESE APPEAL S TO THE FILE OF THE ASSESSING OFFICER FOR HIS FRESH CONSIDERATION WITH A DIRECTION THAT HE WILL CONSIDER SUCH EVIDENCE, AS MAY BE PRODUCED BY THE ASSESSEE BEFORE HIM AND GIV E DUE OPPORTUNITY TO THE ASSESSEE AND TH EREAFTER TO PASS THE ASSESSMENT ORDER S AS PER L AW. THE LEARNED AR OF THE ASSESSEE HAS ASSURED THAT THE ASSESSEE WILL COOPERATE THE ASSESSING OFFICER AND WE MAY STATE THAT IF THE ASSESSEE FAILS TO COOPERATE THE ASSESSING OFFICER, THE ASSESSING OFFICER WILL COMPLETE THE ASSESSMENT IN RESPECT OF THE ISSUES INVOLVED IN THESE APPEALS FOR BOTH THE AYS UNDER CONSIDERATION ON THE BASIS OF MATERIAL AVAILABLE BEFORE HIM. 4. IN THE RESULT, BOTH THE APPEALS OF THE DEPARTMENT FOR THE ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 02.07.2010 SD/ - S D/ - ( . . ) (C.D. RAO), ACCOUNTANT MEMBER ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE :02.07.2010 ( / ) H.K.PADHEE / SNR.PRIVATE SECRETARY. / I.T.A.NO.1515 AND 1744/KOL/2008 4 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : DCIT, CIRCLE 8, KOLKATA 2 / THE RESPONDENT - M/S.BHAGAWATI GASES LTD., 67, PARK STRET, KOLKATA 700 016 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .