Ahmedabad Dist.Co.Op.Milk Producrers Union Ltd., Ahmedabad V. The ACIT.,Circle-11, Ahmedabad

ITA 1898/AHD/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85693 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-01-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 02-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Depreciation; Additional depreciation; Question of law; Revised return
• Section: 143(3); 80HHC; 80IB; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACC OUNTANT MEMBER AHMEDABAD DISTRICT CO- OPERATIVE MILK PRODUCERS UNIONS LTD. C/O UTTAM DAIRY, SUKHRAM NAGAR, GOMTIPUR, AHMEDABD PAN: AAAJA 0783 E(APPELLANT) VS ASST. COMMISSIONER OF INCOME TAX, CIRCLE-II, AHMEDABAD (RESPONDENT) ASSESSEE BY: SHRI. MANISH J. SHAH, A R REVENUE BY: SMT. SONIA KUMAR, SR. D.R. DATE OF HEARING : 29-01-2015 DATE OF PRONOUNCEMENT : 13-02-20 15 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-XVI, AHMEDABAD DATED 12-02-2009 FOR A.Y. 2004-05. ITA NO. 1898/AHD/2010 ASSESSMENT YEAR 2004-05 I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 2 2. THE REGISTRY HAS INFORMED THAT THE APPEAL HAS BE EN FILED BELATEDLY BY 409 DAYS. BEFORE US, LD. AR HAS FILED THE AFFIDAVI TS OF THE MANAGING DIRECTOR, THE PRACTICING CHARTERED ACCOUNTANT WHERE IN THE REASON FOR DELAY HAS BEEN EXPLAINED. HE THEREFORE SUBMITTED THAT IN VIEW OF THE REASONS STATED IN THE AFFIDAVITS THE DELAY IN FILING OF THE APPEAL BE CONDONED. HE ALSO RELIED ON THE VARIOUS DECISIONS OF SUPREME COU RT AND HIGH COURTS. LD. DR ON THE OTHER HAND SUBMITTED THAT THERE HAS B EEN INORDINATE DELAY IN FILING THE APPEAL AND THEREFORE THE SAME SHOULD NOT BE CONDONED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. CONSIDERING THE AVERMENTS MADE BY THE CHAR TERED ACCOUNTANT AND THE MANAGING DIRECTOR AND RELYING ON THE DECISI ON OF HONBLE APEX COURT IN THE CASE OF N. BALAKRISHANAN VS. N. KRISHN AMURTY (1998) 7 SCC 123, WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT C AUSE FOR DELAY IN FILING OF APPEAL AND THEREFORE THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 4. THE FACTS AS CULLED OUT FROM THE MATERIAL ON REC ORD ARE AS UNDER. 5. ASSESSEE IS A CO-OPERATIVE SOCIETY STATED TO BE ENGAGED IN THE BUSINESS OF MANUFACTURING MILK, BUTTER MILK, CHEESE AND OTHER DAIRY PRODUCTS. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2004-05 ON 30-10- 2004 DECLARING TOTAL INCOME AT RS. 72,12,591/-. TH E CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U /S. 143(3) VIDE ORDER DATED 21-12-2006 AND THE TOTAL INCOME WAS DETERMINE D AT RS. 89,84,520/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 12-02-2009 GRANTED PART IAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS FILED THE FOLLOWING GROUND. I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 3 1. THE CIT(A) ERRED IN DISALLOWING THE AMOUNT OF R S. 20,70,811/- CLAIMED TOWARDS INTEREST INCOME UNDER SECTION 80P(2 )(D). 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICED THAT ASSESSEE HAS FILED REVISED RETURN OF INCOME ON 19-0 9-2006 WHEREIN ASSESSEE HAS CLAIMED DEDUCTION U/S. 80P(2)(D) OF TH E ACT AND HAD ALSO CLAIMED HIGHER DEPRECIATION. AO WAS OF THE VIEW TH AT SINCE THE REVISED RETURN WAS FILED BY THE ASSESSEE AFTER EXPIRY OF ON E YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR, THE REVISED RETURN CANNOT BE ACCEPTED U/S. 139(5) OF THE ACT AND THEREFORE THE CLAIM OF DEDUCT ION U/S. 80P AND HIGHER DEPRECIATION CANNOT BE ALLOWED AND ACCORDINGLY DENI ED THE CLAIM OF DEDUCTION U/S. 80P(2)(D) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO U PHELD THE ORDER OF AO BY HOLDING AS UNDER:- 3.3 I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN V IEW OF SEC 139(5), THE REVISED RETURN COULD HAVE BEEN FILED BY THE APPELLANT ON OR BEFORE 31-03-2006. SINCE THE REVISED RETURN OF INCOME WAS NOT FILED WITHIN STATUTORY TIME LIMIT AND THE ASSESSING OFFICER HAS NO POWER TO CONDONE THE DELAY, THE REVISED RETURN OF I NCOME CANNOT BE TREATED AS A VALID RETURN. THE HONBLE SUPREME COU RT IN THE CASE OF GOETZE INDIA LTD REPORTED IN 284 ITR 323 (SC) HELD THAT FOR CLAIMING ANY DEDUCTION, THE APPELLANT HAS TO FILE A REVISED RETURN. CLAIM FOR DEDUCTION BY WAY OF APPLICATION GIVEN DURING ASSESS MENT PROCEEDINGS CANNOT BE ENTERTAINED BY THE ASSESSING OFFICER. SINCE IN THIS CASE THE REVISED RETURN OF INCOME WAS NOT A VALID RETURN WITHIN THE MEANING OF SEC. 139(5) OF THE IT ACT, THE ACTIO N OF THE ASSESSING OFFICER IN NOT ENTERTAINING THE REVISED RETURN OF INCOME IS CONFIR MED. THE RELIANCE ON THE JUDGEMENT OF GUJARAT GAS CO 275 ITR 84 (GUJ] IS OF NO HELP TO THE APPELLANT AS IT WAS IN CONNECT ION OF A REFUND AND THE VALIDITY OF THE CIRCULAR NO. 549 DATED 31-10-19 89. IN FACT THE CASE OF THE APPELLANT IS COVERED BY THE JUDGEMENT O F HON'BLE SUPREME COURT 284 ITR 323 (SC) GOETZE INDIA LTD. A REVISED RETURN OF INCOME IS VALID ONLY IF IT IS FILED WITHIN THE M EANING OF SECTION 139(5) OF THE ACT. SECTION 139(5) SAYS THAT A REVI SED RETURN OF INCOME CAN BE FILED WITHIN ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 4 WHICHEVER IS EARLIER. IN THIS CASE, THE PERIOD OF O NE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR I.E. BY 31-3-2006 EXPIR ED EARLIER, THEREFORE, THE RETURN FILED AFTER 31-3-2006 IS NOT A VALID REVISED RETURN OF INCOME. THE ASSESSING OFFICER WAS THEREFORE, JUS TIFIED IN NOT ALLOWING THE DEDUCTION OF ADDITIONAL DEPRECIATION A ND DEDUCTION U/S. 80P(2)(D) AS CLAIMED IN THE REVISED RETURN. THE FIR ST GROUND OF THE APPELLANT IS THEREFORE DISMISSED. 7. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. BEFORE US, LD. AR REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT(A) AND FURTHER SUBMITTED THAT LD. CIT(A), WHILE DENYING THE CLAIM OF THE ASSESSEE, HAS RELIED ON TH E DECISION OF HONBLE APEX COURT IN THE CASE OF GOETZE INDIA LTD REPORTED IN 284 ITR 323. BEFORE US, LD. AR SUBMITTED THAT THE DECISION OF HO NBLE APEX COURT IN THE CASE OF GOETZE INDIA PVT. LTD (SUPRA) IS CONFINED T O THE POWERS OF THE AO AND THAT THE APPELLATE AUTHORITY AND THE TRIBUNAL H AVE POWER TO ENTERTAIN NEW GROUND, LEGAL CONTENTION OR CLAIM AND FOR THIS PROPOSITION HE PLACED RELIANCE ON THE DECISION OF HONBLE GUJARAT HIGH CO URT IN THE CASE OF CIT VS. MITESH IMPEX IN TAX APPEAL NO. 2562 OF 2009 ORD ER DATED 02-04-2014. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. LD. AR FURTHER FAIRLY SUBMITTED THAT SINCE THE ISSUE HAS N OT BEEN DECIDED BY LD. CIT(A) ON MERITS, THE MATTER MAY BE REMITTED BACK T O THE FILE OF CIT(A) WITH NECESSARY DIRECTIONS. LD. DR ON THE OTHER HAND, RE LIED ON THE ORDER OF AO. 8. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED T HE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT IN THE REVIS ED RETURN OF INCOME FILED BY THE ASSESSEE, CLAIM OF DEDUCTION U/S. 80P WAS MADE BUT THE CLAIM WAS DENIED BY THE AO ONLY FOR THE REASON THAT THE REVIS ED RETURN WAS NOT FILED WITHIN THE PRESCRIBED TIME PRESCRIBED UNDER THE ACT . WE FIND THAT LD. CIT(A) WHILE UPHOLDING THE ORDER OF AO AND DISMISSI NG THE APPEAL OF ASSESSEE HAD RELIED ON THE DECISION OF APEX COURT I N THE CASE OF GOETZE I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 5 INDIA (SUPRA). WE FIND THAT HONBLE GUJARAT HIGH C OURT IN THE CASE OF MITESH IMPEX (SUPRA) WITH RESPECT TO ENTERTAINING N EW GROUND BEFORE APPELLATE AUTHORITIES AND AFTER CONSIDERING THE VAR IOUS DECISIONS HAD NOTED AS UNDER:- 38. IT THUS BECOMES CLEAR THAT THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. COMMISSIONER OF INCOME-TAX (SUPRA) IS CONFINED TO THE POWERS OF THE ASSESSING OFFICER AND ACCEPTING A CLAIM WITHOUT REVISED RETURN. THIS IS WHAT SUPREME COURT OBSERVED IN THE SAID JUDGMENT WHILE DISTINGUI SHING THE JUDGMENT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. COMMISSIONER OF INCOME-TAX (SUPRA) AND THAT IS HOW VARIOUS HIGH COURTS HAVE VIEWED THE DICTUM OF THE DECISION IN TH E CASE OF GOETZE (INDIA) LTD. VS. COMMISSIONER OF INCOME-TAX (SUPRA ). WHEN IT COMES TO THE POWER OF APPELLATE COMMISSIONER OR THE TRIBU NAL, THE COURTS HAVE RECOGNISED THEIR JURISDICTION TO ENTERTAIN A N EW GROUND OR A LEGAL CONTENTION. A GROUND WOULD HAVE A REFERENCE T O AN ARGUMENT TOUCHING A QUESTION OF FACT OR A QUESTION OF LAW OR MIXED QUESTION OF LAW OR FACTS. A LEGAL CONTENTION WOULD ORDINARILY B E A PURE QUESTION OF LAW WITHOUT RAISING ANY DISPUTE ABOUT THE FACTS. NOT ONLY SUCH ADDITIONAL GROUND OR CONTENTION, THE COURTS HAVE AL SO, AS NOTED ABOVE, RECOGNIZED THE POWERS OF THE APPELLATE COMMI SSIONER AND THE TRIBUNAL TO ENTERTAIN A NEW CLAIM FOR THE FIRST TIME THOUGH NOT MADE BEFORE THE ASSESSING OFFICER. INCOME TAX PRO CEEDINGS ARE NOT STRICTLY SPEAKING ADVERSARIAL IN NATURE AND THE INT ENTION OF THE REVENUE WOULD BE TO TAX REAL INCOME. 39. THIS IS PRIMARILY ON THE PREMISE THAT IF A CL AIM THOUGH AVAILABLE IN LAW IS NOT MADE EITHER INADVERTENTLY O R ON ACCOUNT OF ERRONEOUS BELIEF OF COMPLEX LEGAL POSITION, SUCH CL AIM CANNOT BE SHUT OUT FOR ALL TIMES TO COME, MERELY BECAUSE IT I S RAISED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY WITHOUT RESORTI NG TO REVISING THE RETURN BEFORE THE ASSESSING OFFICER. 40. THEREFORE, ANY GROUND, LEGAL CONTENTION OR EVE N A CLAIM WOULD BE PERMISSIBLE TO BE RAISED FOR THE FIRST TIME BEFO RE THE APPELLATE AUTHORITY OR THE TRIBUNAL WHEN FACTS NECESSARY TO E XAMINE SUCH GROUND, CONTENTION OR CLAIM ARE ALREADY ON RECORD. IN SUCH A CASE THE SITUATION WOULD BE AKIN TO ALLOWING A PURE QUES TION OF LAW TO BE RAISED AT ANY STAGE OF THE PROCEEDINGS. THIS IS PRE CISELY WHAT HAS HAPPENED IN THE PRESENT CASE. THE APPELLATE COMMISS IONER AND THE I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 6 TRIBUNAL DID NOT NEED TO NOR DID THEY TRAVEL BEYOND THE MATERIALS ALREADY ON RECORD, IN ORDER TO EXAMINE THE CLAIMS O F THE ASSESSEES FOR DEDUCTIONS UNDER SECTION 80IB AND 80HHC OF THE ACT. 41. IN THE DECISIONS THAT WE HAVE NOTED ABOVE, THE COURTS HAVE CONSIDERED SUCH QUESTIONS WHEN A LEGAL CONTENTION O R A CLAIM WAS BASED ON MATERIAL ALREADY ON RECORD BUT RAISED AT A N APPELLATE STAGE. ON SUCH PREMISE WE WHOLEHEARTEDLY AGREE THAT THE APPELLATE AUTHORITY AND THE TRIBUNAL WOULD HAVE THE POWER TO ENTERTAIN ANY SUCH NEW GROUND, LEGAL CONTENTION OR CLAIM. 9. IN THE PRESENT CASE AND AFTER PLACING RELIANCE O F THE AFORESAID DECISION OF HONBLE GUJARAT HIGH COURT, WE ARE OF T HE VIEW THAT THE CLAIM OF ASSESSEE SHOULD HAVE BEEN CONSIDERED ON MERITS BUT SINCE CIT(A) HAD DISMISSED THE GROUND OF ASSESSEE WITHOUT CONSIDERIN G THE ISSUE ON MERITS, WE ARE OF THE VIEW THAT THE ISSUE NEEDS TO BE REEXA MINED ON MERITS. WE THEREFORE RESTORE THE ISSUE TO THE FILE OF LD. CIT( A) TO DECIDE THE ISSUE AFRESH ON MERITS AND IN ACCORDANCE WITH LAW. NEEDL ESS TO STATE THAT BEFORE DECIDING THE ISSUE, THE LD. CIT(A) SHALL GRANT ADEQ UATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE BY PROMPTLY FURNISHING ALL THE REQUIRED DETAILS CALLED FOR BY THE AUTHORITIES FOR DECIDING THE ISSUE. THUS THIS GROUND OF ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (MUKUL KR. SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 13/02/2015 I.T.A NO. 1898/AHD/2010 A.Y. 2004-05 PAGE NO AHMEDABAD DISTRICT CO-OP. MILK PRODUCERS UNIONS LT D VS. ACIT 7 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / , .