DCIT, New Delhi V. M/s Lifetree Convergence Ltd, Delhi

ITA 1783/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0344 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 19-01-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Additional evidence

Judgement Text

I.T.A. NO.1783 /DEL/2010 1/1 IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH D NEW DELHI, BENCH D NEW DELHI, BENCH D NEW DELHI, BENCH D BEFORE SHRI I. P. BANSAL, JUDICIAL MEMBER AND SHRI A K GARODIA, ACCOUTANT MEMBER ITA NO. 1783 /DEL/2010 (ASSESSMENT YEAR 2006-07) DCIT, CIRCLE 4(1) VS. M/S. LIFETREE CONVERGENCE L TD., NEW DELHI 138A, POCKET F, MAYUR VIHAR II, DELHI-91 (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AAACL7345L APPELLANT BY: SHRI A. K. MONGA, DR RESPONDENT BY: SHRI SANDEEP SAPRA, ADV. ORDER ORDER ORDER ORDER PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: PER A. K. GARODIA, AM: 1. THIS IS REVENUES APPEAL DIRECTED AGAINST THE OR DER OF LD. CIT(A) VII, NEW DELHI DATED 26.02.2010 FOR THE ASSE SSMENT YEAR 2006-07. THE GROUNDS OF APPEAL RAISED BY THE REVEN UE ARE AS UNDER: 1) THE ORDER OF THE LD .CIT(A) IS ERRONEOUS & CONT RARY TO FACTS AND LAW. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD .CIT(A) HAS ERRED IN DELETING HT ADDITI ON DISALLOWANCE OF ` 16,51,900/- MADE BY THE A.O. IN R ESPECT OF DEDUCTION OF ` 1,47,11,925/-. 2.1 THE LD .CIT(A) IGNORED THE FACT THAT THE EXPORT PROCEEDS WERE NOT RECEIVED BY THE ASSESSEE EVEN UP TO 30.09.2006. 2.2 THE LD. CIT(A) ERRED IN LAW BY ACCEPTING ADDITI ON EVIDENCE UNDER 46A OF I T RULES IN RESPECT EXTENSIO N OF REALIZATION OF SALE PROCEEDS UP TO 31.03.2010, EVEN WHEN THE EVIDENCE WAS REJECTED BY THE A.O. IN REMAN D REPORT. 2. THE LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHER EAS LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). A CHART WAS ALS O SUBMITTED BY THE LD. A.R. AS PER WHICH, OUT OF THE DISPUTED AMOUNT, ONLY ONE AMOUNT OF US$89,200/- WAS REALIZED BY THE ASSESSEE ON 31.0 3.2010 AND THE I.T.A. NO.1783 /DEL/2010 2/2 REMAINING AMOUNTS ARE NOT REALIZED TILL DATE I.E. O N 17.01.2011 WHEREAS THE EXTENSION FROM REALIZATION OF EXPORT PR OCEEDS HAS BEEN GRANTED TILL 31.03.2010 ONLY. 3. REGARDING THE GROUND NO.2.2 OF THE REVENUE IN RE SPECT OF ADMISSION OF ADDITIONAL EVIDENCE BY LD. CIT(A), WE FIND THAT IT HAS BEEN NOTED BY THE LD .CIT(A) ON PAGE 6 OF HIS ORDER IN PARA 5.3 THAT OUT OF FOUR CIRCUMSTANCES UNDER WHICH ADMISSION OF ADDITIONAL EVIDENCE ARE JUSTIFIED AS PER RULE 46A OF THE INCOM E TAX RULE 1962, TWO CIRCUMSTANCES MENTIONED IN CLAUSES (B) & (C) DO EXIST IN HT PRESENT CASE AND MOREOVER, THE A.O. WAS ALSO GIVEN OPPORTUNITY TO EXAMINE THESE EVIDENCES AND ON THIS BASIS, THE LD . CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCE. WE FIND THAT T HE ADDITIONAL EVIDENCE BEING THE COPY OF LETTER OF APPROVAL DATED 24.10.2009 FROM THE AUTHORIZED DEALER OF THE ASSESSEE I.E. HSBC WAS OBTAINED BY THE ASSESSEE AFTER THE COMPLETION OF THE ASSESSMENT PRO CEEDINGS ON 26.12.2008 AND HENCE WE ARE IN AGREEMENT WITH LD. C IT(A) THAT THE ASSESSEE WAS NOT IN A POSITION TO SUBMIT THE SAID E VIDENCE BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS. WE, TH EREFORE, UPHOLD THE ORDER OF LD .CIT(A) REGARDING ADMISSION OF ADDI TIONAL EVIDENCE. 4. ON MERIT, WE FIND THAT LD. CIT(A) HAS DIRECTED T HE A.O. TO RECOMPUTE THE EXEMPTION U/S 10A AFTER VERIFICATION OF THE RELEVANT FACTS AND KEEPING IN MIND THAT THE EXTENSION FOR RE ALIZATION OF EXPORT PROCEEDS HAS BEEN GRANTED TILL 31.03.2010. THE AMOUNT IN DISPUTE FOR WHICH THE SALE PROCEEDS COULD NOT BE BR OUGHT INTO INDIA WITHIN THE PRESCRIBED TIME IS REGARDING THE AMOUNT OF ` 1,42,93,729/-. AS PER THE DETAILS GIVEN BEFORE US, THIS AMOUNT OF ` 1,42,93,729/- IS IN CONNECTION WITH EXPORT BILL NO. 37 DATED 22.12.2005 FOR US$9817.50, INVOICE NO.P-045 DATED 2 0.03.2006 FOR US$89,200/- AND 3 INVOICES NOS. P-056, P-057 & M-10 8 ALL DATED 31.03.2006 INVOLVING TOTAL AMOUNT OF US$2,18,970/- FOR THESE THREE BILLS. AS PER THE CHART SUBMITTED BY THE ASSESSEE BEFORE US ALSO IN THE COURSE OF HEARING, IT HAS BEEN ADMITTED BY THE ASSESSEE ON 17.01.2011 THAT THE ASSESSEE COULD NOT REALIZE THE SALE PROCEEDS OF INVOICE NOS. P-037, P-056, P-057 AND M-108 I.E. FOR US$ 9,817.50 I.T.A. NO.1783 /DEL/2010 3/3 AND US$ 2,18,970/- RESPECTIVELY. IT IS ALSO SUBMIT TED THAT ONLY FOR SALE INVOICE NO.P-045 OF US$ 89,200/- THE AMOUNT WA S REALIZED BY THE ASSESSEE ON 31.03.2010 I.E. WITHIN THE EXTENDED TIME. WE THEREFORE, DIRECT THE A.O. TO EXAMINE THAT THIS CLA IM OF THE ASSESSEE AS TO WHETHER THIS AMOUNT OF US$89,200/- FOR INVOIC E NO.P-045 DATED 20.03.2006 WAS REALIZED BY THE ASSESSEE IN IN DIA OR NOT WITHIN THE EXTENDED TIME I.E. 31.03.2010 AND THEREAFTER, I F IT IS FOUND THAT THE SALE PROCEEDS OF THIS INVOICE OF US$89,200/- WE RE RECEIVED INTO INDIA WITHIN EXTENDED TIME TILL 31.03.2010, THE A. O. SHALL RECOMPUTE THE AMOUNT OF EXEMPTION ALLOWABLE TO THE ASSESSEE U /S 10A AS HAS BEEN DIRECTED BY THE LD .CIT(A) BUT FOR THE REMAINI NG AMOUNT THERE IS NO CASE OF THE ASSESSEE BECAUSE EVEN AFTER EXTEN SION OF TIME TILL 31.03.2010, THE ASSESSEE COULD NOT REALIZE THE EXPO RT PROCEEDS TILL 17.01.2011. THE ORDER OF LD. CIT(A) IS MODIFIED AC CORDINGLY. 5. IN THE RESULT, THE APPEAL OF REVENUE STANDS PART LY ALLOWED AS INDICATED ABOVE. 6. PRONOUNCED IN THE OPEN COURT ON 11 TH FEB., 2011. SD./- SD./- (I. P. BANSAL) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH FEB., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI