National Aluminium Compamy Limited, Bhubaneswar V. Addl. CIT, Range-2, Bhubaneswar

ITA 193/CTK/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3838 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K GAUTAM
• Assessee Lawyers: A K SABAT; B K MAHAPATRA CAS
• Keywords: Condonation of delay; Revenue expenditure; Reassessment proceedings; TDS; Set aside
• Section: 43B; 143(3); 142(1); 234B; 143(2); 139(1); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG , J M & SHRI L.P. SAHU, A M ./ ITA NO. 193 / CTK/201 8 ( / ASSESSMENT YEAR : 20 08 - 20 09 ) NATIONAL ALUMINIUM COMPANY LIM ITED, NALCO BHAWAN, P/1, NAYAPALLI, BHUBANESWAR VS. ASST.CIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR / PAN NO. : AA ACN 7449 M ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI A.K.SABAT & B.K.MAHAPATRA , CAS /REVENUE BY : SHRI M.K.GAUTAM , CIT DR / DATE OF HEARING : 21 /0 2 /20 20 / DATE OF PRONOUNCEMENT : 26 /0 2 /20 20 / O R D E R PER L.P.SAHU , A M : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE O RDER OF THE CIT(A) - II , BHUBANESWAR, DATED 21.02.2013 FOR THE ASSESSMENT YEAR 20 08 - 20 09 . 2 . AS PER THE OFFICE NOTE, THERE IS A DELAY OF 1857 DAYS IN FILING THE APPEAL. IN THIS REGARD, LD. AR HAS FILED A PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVI T. IN THE CONDONATION PETITION THE ASSESSEE HAS EXPLAINED THE CAUSE OF DELAY WHICH READS AS UNDER : - 1. THAT THE PETITIONER/APPELLANT/ASSESSEE COMPANY, NATIONAL ALUMINIUM COMPANY LIMITED (NALCO), IS A GOVT, OF INDIA ENTERPRISE AND IS A 'NAVARATNA' OPERATI NG UNDER THE MINISTRY OF MINES, GOVT, OF INDIA AND IS ENGAGED IN THE BUSINESS OF MINING, MANUFACTURING PRODUCTION, GENERATION AND DEALING IN BAUXITE, ALUMINA, ALUMINUM AND POWER. 2. THAT FOR THE ASSESSMENT YEAR 2008 - 09 (PREVIOUS YEAR 2007 - 08) THE INCOME T AX RETURN OF THE COMPANY WAS E - FILED ON 31.10.2008 AT A TOTAL INCOME OF RS.2490,75,51,736/ - WHEREIN TDS OF RS.87,68,05,005/ - ITA NO . 193 /CTK/201 8 2 HAS BEEN CLAIMED AND IT HAD PAID ADVANCE TAX OF RS.766,00,00,000 - BY 31.03.2008. 3. THAT THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND IN RESPONSE TO NOTICE U/S. 143(2) AND 142(1) OF THE ACT, THE ASSESSEE COMPLIED TO THE SAME, FROM TIME TO TIME, AND HAS PRODUCED ITS BOOKS OF ACCOUNTS, FILED ITS ANNUAL REPORT CONTAINING AUDITED BALANCE SHEET. P/L ACCOUNT ETC., TRIAL BALANCE, T AX AUDIT REPORT U/S.44AB OF THE ACT, SUBMISSIONS, VARIOUS DOCUMENTS, DETAILS PARTICULARS, AND HAS DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS. 4. THAT THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 2, BHUBANESWAR (IN SHORT 'AO') VIDE ORDER U/S 143(3) OF THE INCOME TAX ACT (IN SHORT THE 'I.T.ACT' OR THE 'ACT') DATED 30.12.2010 MISCONSTRUED/MIS - APPRECIATED THE FACTS AND ON ERRONEOUS PREMISES MADE THE FOLLOWING DISALLOWANCES/ ADDITIONS (LISTED AS BELOW): SI. NO. UNDER THE HEAD REF. PARA OF ORDER U/S. 1 43(3) AMOUNT IN RS. I. LOSS ON VALUATION OF NON - MOVING STORE & SPARES 1 13,92,55,994 II. OUT OF PERIPHERAL DEVELOPMENT EXPENSES 5 3,48,05,782 III. 'ELECTRICITY DUTY AND WATER CHARGES' - U/S.43B OF THE ACT 9 35,98,95,314 IV. CLAIM OF ADDITIONAL DEPRECAT ION U/S.32(I)(IIA) OF THE ACT 2 8,91,29,640 V. AMOUNTS UNDER 'PRIOR PERIOD ADJUSTMENTS' 7 4,85,17,888 VI. PROVISION FOR LEAVE ENCASHMENT 4 12,04,58,663 VU. 'DISALLOWANCE - U/S.40(A)(IA) OF THE ACT 8 3,92,84,875 VIII. CLAIMS, RECEIVABLE, DEBTS, SHORTAGE S ETC. WRITTEN OFF 5 4,18,22,218 IX. LOSS ON SALE OF ASSETS 6 67,52,495 X. INTEREST ON DISPUTED GOVT, DUTY (ELECTRICITY DUTY AND WATER HARGES) 10 59,55,89,734 AND ASSESSED THE TOTAL INCOME AT RS.2638,30,64,340/ - AND HAS COMPUTED TOTAL TAX INCLUDING INC OME TAX, S.C & ED CESS AT RS.896,79,43,469/ - AND RAISED A DEMAND OF RS. 138,56,29,270 INCLUDING INTEREST OF RS.32,53,70,760/ - AND RS.7,42,86,476/ - U/S. 234B AND 234C OF THE ACT RESPECTIVELY WITHOUT GIVING CREDIT FOR TDS OF RS.55,48,33,568/ - I.E. (RS.87,68, 05,005/ - RS.32,19,71,437/ - ) AS CLAIMED IN RETURN. 5. THAT AGAINST THE AFORESAID ORDER DT.20.12.2007 U/S. 143(3) OF THE ACT, THE ASSESSEE PREFERRED APPEAL TO THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) II, BHUBANESWAR [FOR SHORT IT (APPEALS)] SEEKING J USTICE AND RELIEF IN ITA NO.0161/10 - 11. 6. THAT WHILE THE APPEAL BEFORE THE LEARNED CIT (APPEALS) WAS PENDING THUS, THE LEARNED ASSESSING OFFICER VIZ. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 2(2), BHUBANESWAR (IN SHORT 'AO'/ 'ACIT') HAS ITA NO . 193 /CTK/201 8 3 ISSUED NOTICE DAT ED 10.07.2012 U/S 148 OF THE I.T. ACT. ALLEGING ESCAPEMENT OF INCOME AND DIRECTED TO DELIVER A COPY OF RETURN THEREUNDER AND IN COMPLIANCE THERETO THE ASSESSEE FILED A RETURN WHEREIN THE RETURN FILED U/S 139(1) OF THE ACT HAS BEEN REITERATED. 7. THAT T HE LEARNED CIT (APPEALS) PASSED ORDER DATED 21.2.2013 (RECEIVED ON 08.03.2013) IN ITANO.0161/10 - 11 HOLDING AS UNDER: 'D. 1TA NO.0161/10 - 11 FOR ASST. YEAR 2008 - 09 THE ORIGINAL ASSESSMENT FOR ASSESSMENT YEAR 2008 - 09 WAS COMPLETED U/S 143(3) ON 30.1 2.2010 BY THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 2, BHUBANESWAR. HOWEVER, IN THE MEANWHILE, THE AO HAS TAKEN ACTION U/S.147 AND HAS ISSUED A NOTICE U/S.148 ON 10.07.2012. IT IS SETTLED IN LAW THAT FOR WHATEVER REASONS A COMPLETED ASSESSMENT IS REOPENE D U/S. 147, THE ENTIRE ASSESSMENT IS OPEN BEFORE THE AO FOR BEING REDONE. THEREFORE, ALL THE ISSUES WHICH HAVE CROPPED UP IN THE PRESENT ORIGINAL ASSESSMENT WILL HAVE TO BE THERE FOR A FRESH DECISIO N IN THE R EASSESSMENT. THE APPELLANT WILL BE FREE TO COME BEF ORE ME IN APPEAL A GAINST THE ORDER O F REASSE SSMENT CHALLENGING ALL THOSE GROUNDS WHICH HE HAS TAKEN IN THE PRESENT APPEAL. IN ABSENCE OF A VALID AND EXISTING ASSESSMENT AS OF NOW, I HAVE NO SCOPE TO PROCEED FURTHER TO ARBITRATE ANY OF THE GROUND. THERE FORE, THE APPEAL HAS BECOME INFRUCTUOUS AND IS TREATED AS DISMISSED FOR STATISTICAL PURPOSES. (EMPHASIS SUPPLIED BY US) 8. THAT THE ASSESSEE AFTER SUBMITTING THE AFORESAID RETURN U/S 148 OF THE ACT, REQUESTED THE LEARNED ASSESSING OFFICER TO INTIMATE TH E REASONS FOR THE REOPENING U/S 147 OF THE ACT AND THE SAME HAS BEEN SUPPLIED WITH AND THE ASSESSEE FILED ITS WRITTEN SUBMISSIONS OBJECTING TO THE SAID RE - OPENING U/S. 147 OF THE ACT. 9. THAT WITHOUT PREJUDICE TO THE SAID RE - OPENING U/S. 147 OF THE ACT, DURING THE REASSESSMENT PROCEEDINGS, THE ASSESSEE ONCE AGAIN FURNISHED PARTICULARS/DETAILS/DOCUMENTS WHICH WERE ALREADY FILED DURING THE PROCEEDINGS U/S. 143(3) OF THE ACT AND HAS ALSO FILED ITS WRITTEN SUBMISSIONS. 10. THAT IGNORING THE ASSESSES SUBMISS IONS ON RE - OPENING OF ASSESSMENTS, THE LEARNED AO HAS PASSED RE - ASSESSMENT ORDER DATED 24.01.2014 U/S.147/143(3) OF THE ACT (RECEIVED ON 03.02.2014) WHEREIN THE LEARNED AO IN ADDITION TO RETAINING THE ADDITIONS /DISALLOWANCES MAD E UNDER ORDER UNDER/S. 143( 3) OF THE ACT, ON ERRONEOUS PREMISES, HAS MADE THE FOLLOWING FURTHER ADDITIONS /DISALLOWANCES: A. MANAGEMENT DEVELOPMENT & TRAINING EXPENSES U/S.40(A)(IA) OF THE ACT RS.7,87,00,000 B. PERIPHERAL DEVELOPMENT EXPENSES RS .4,16,65.787 AND HAS RE - ASSESS ED THE TOTAL INCOME AT RS.2650,34,30,130/ - AND RAISED A DEMAND OF RS. 19,03,21,940/ - INCLUDING INTEREST OF RS.15,56,64,564/ - AND RS.43,07,985/ - U/S. 234B AND 220(2) OF THE ACT RESPECTIVELY. ITA NO . 193 /CTK/201 8 4 11. THE ASSESSEE BEING AGGRIEVED WITH THE AFORESAID ORDER DATED 30 .03.2011 HAS FILED APPEAL TO THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SEEKING JUSTICE AND RELIEF. 12. THE LEARNED CIT (APPEALS) HAS ADJUDICATED ON THE ISSUES OF ADDITIONS AND DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER U/S. 147 AS WELL AS O N THE ISSUES ADDITIONS AND DISALLOWANCE MADE IN ORDER U/S.143(3) OF THE ACT BY PASSING ORDER DATED 08.06.2015 IN ITA NO.0544/14 - 15 WHEREIN HE SUSTAINED THE FOLLOWING ADDITIONS AND DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER: A. DISALLOWANCE UNDER 'PERIPHERAL DEVELOPMENT EXPENSES' RS.4,16,65,787/ - B. DISALLOWANCE OF INTEREST ON DISPUTED GOVT, DUTY (ELECTRICITY DUTY AND WATER CHARGES RS.59,55,89,734/ - C. ADDITION UNDER LOSS ON SALE OF ASSETS - RS.67,52,495/ - : D. DISALLOWANCE OF PROVISION F OR LEAVE ENCASHMENT' - U/S.43B(F) OF THE ACT RS.12,04,58,663/ - E. DISALLOWANCE UNDER 'PRIOR PERIOD ADJUSTMENTS' - RS.4,85,17,888/ - F. DISALLOWANCE OF AMOUNTS WRITTEN OFF IN RESPECT OF CLAIMS/RECEIVABLES - RS.58,35,505/ - G. DISALLOWANCE UNDER SECTION 43B - 'ELECTRICITY DUTY' - RS.35,98,95,314/ - H. DISALLOWANCE OF ADDITIONAL DEPRECATION U/S.32(L)(IIA) OF THE ACT - RS.8,91,29,640/ - I. DISALLOWANCE UNDER MANAGEMENT DEVELOPMENT & TRAINING EXPENSES U/S.40(A)(IA) OF THE ACT - RS.7,87,00,000/ - . 13. AG GRIEVED WITH CIT (APPEALS) ORDER DATED 08.06.2015, THE ASSESSEE FILED 2ND APPEALS TO THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK (ITAT) IN (ITA NO. 392/CTK7 2015. FURTHER, THE DEPARTMENT HAS ALSO FILED CROSS APPEALS TO THE INCOME TAX APPELLAT E TRIBUNAL, CUTTACK BENCH, CUTTACK (ITAT) IN (ITA NO. 383/CTK72015, AGAINST THE CIT (APPEALS) ORDER DATED 08.06.2015 AND THE ASSESEEE HAS FILED CROSS OBJECTIONS TO THE SAID DEPARTMENTAL APPEAL WITH THE INCOME TAX APPELLATE TRIBUNAL (CO 51/CTK72015), 14. THE HON'BLE ITAT, CUTTACK BENCH, CUTTACK VIDE ORDER DATED 23.04.2018 (COMBINED ORDER IN ITA NOS.343, 353, 383 & 392/CTK/2015 AND CO NOS 49 & 51/CTK/2015 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09) HAS ADJUDICATED ON THE ISSUES ADDITIONS AND DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER U/S.147 AND HAS NOT ADJUDICATED ON THE ISSUES ADDITIONS AND DISALLOWANCE MADE IN ORDER U/S. 143(3) OF THE ACT. 15. THAT IT IS SUBMITTED THAT THE PETITIONER/APPELLANT/ASSESSEE COMPANY WAS UNDER BONAFIDE AND HONEST BELI EF THAT NO APPEAL BE FILED AGAINST THE ORDER DATED 21.2.2013 PASSED BY THE LEARNED CIT (APPEALS) AS THE APPEAL HAS BECOME INFRUCTUOUS AND IS TREATED AS DISMISSED FOR STATISTICAL PURPOSE AND AS THE LEARNED CIT (APPEALS) HAS HELD THAT ALL THE ISSUES IN THE O RIGINAL ASSESSMENT WILL HAVE TO BE THERE FOR A FRESH DECISION IN THE REASSESSMENT AND THE APPELLANT WILL BE FREE TO COME BEFORE HIM IN ITA NO . 193 /CTK/201 8 5 APPEAL AGAINST THE ORDER OF REASSESSMENT CHALLENGING ALL THOSE GROUNDS WHICH HE HAS TAKEN IN THE ORIGINAL APPEAL, AND ACC ORDINGLY APPEAL IS TO BE FILED AFTER PASSING OF ORDER U/S.147/143(3) OF THE ACT, WHICH THE ASSESSEE DULY FILED IN TIME AFTER PASSING OF ORDER U/S.147/143(3) OF THE ACT AND AS STATED ABOVE, THE SAID APPEAL HAS BEEN ADJUDICATED BY CIT VIDE HIS ORDER DT.08.06 .2015. 16. THAT ACCORDINGLY ONLY AFTER THE ORDER DATED 23.04.2018 OF HON'BLE IT AT, CUTTACK BENCH, CUTTACK (COMBINED ORDER IN ITA NOS.343, 353, 383 & 392/CTK/2015 AND CO NOS 49 & 51/CTK/2015 FOR THE ASSESSMENT YEARS 2007 - 08 AND 2008 - 09) HAS BEEN RECEIVED ON 11.05.2018, THE PETITIONER/APPELLANT/ASSESSEE COMPANY HAS PREFERRED THE PRESENT APPEAL AND THUS THERE IS A DELAY OF 19 18 DAYS IN FILING THE PRESENT APPEAL FOR THE ASSESSMENT YEAR 2008 - 09. 17. THAT THE ABOVESAID DELAY IN FILING OF THE APPEAL IS UNINTEN TIONAL, WITHOUT ANY MALAFIDE AND FOR SUFFICIENT CAUSE. 3. LD. DR COULD NOT CONTROVERT THE ABOVE CONTENTION OF THE ASSESSEE FOR CONDONATION OF DELAY. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, TO WHICH THE LD. DR DID NOT OBJECT, WE ARE OF THE OP INION THAT THE ASSESSEE HAS EXPLAINED WITH SUFFICIENT CAUSE FOR DELAY IN FILING THE PRESENT APPEAL. ACCORDINGLY, WE CONDONE THE DELAY OF 1857 DAYS AND APPEAL OF THE ASSESSEE IS HEARD FINALLY. 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1 . ORDER DATED 21.02.2013 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN ITA NO.0161/10 - 11 A. THAT ON THE FACTS AND IN THE CIRCUMSTANCES THE CASE, THE ORDER DATED 21.02.2013 (IN ITA NO.0161/10 - 11) PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [IN SHORT ['CIT(APPEALS)'], IN HOLDING THAT THE APPEAL HAS BECOME INFRUCTUOUS AND IS TREATED AS DISMISSED FOR STATISTICAL PURPOSES, DISMISSING THE APPEAL FOR STATISTICAL PURPOSES IS ARBITRARY, ERRONEOUS AND BAD IN LAW. B. WITHOUT P REJUDICE TO GROUNDS ('A ) ABOVE, THE LEARNED CIT (APPEALS) OUGHT TO HAVE ADJUDICATED ON THE FOLLOWING GROUNDS BEFORE HIM 2. DISALLOWANCE OF LOSS ON VALUATION OF NON - MOVING STORES AND SPARES - RS.13,92,55,994/ - : ITA NO . 193 /CTK/201 8 6 A. THAT THE LEARNED AO HAS MISCONSTRUED/M IS - APPRECIATED THE FACTS AND ON IRRELEVANT CONSIDERATIONS, PRESUMPTIONS, CONJECTURES AND SURMISES, WITHOUT ANY MATERIAL EVIDENCE ON RECORD HAS DISALLOWED THE LOSS OF RS.13,92,55,994/ - ON ACCOUNT OF VALUATION OF NON - MOVING STORES AND SPARES IN HOLDING THAT THE SAME IS NOT ALLOWABLE AS REVENUE EXPENDITURE AND THE AFORESAID DISALLOWANCE IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD ON FACTS AS WELL AS IN LAW AND LEGALLY UNTENABLE. B. THAT THE LEARNED AO HAS GROSSLY ERRED, UNJUSTIFIED AND ARBITRARY IN IGNORI NG/NOT FOLLOWING THE ORDERS PASSED BY THE HON'BLE ITAT, CUTTACK BENCH AND CIT(A) IN RESPECT OF PAST ASSESSMENT YEARS IN ASSESSEE'S OWN CASE WHEREIN, IN SIMILAR CIRCUMSTANCES, IT HAS BEEN HELD THAT LOSS ON ACCOUNT OF VALUATION OF NON - MOVING STORES AND SPARE S IS FULLY ALLOWABLE. 3. DISALLOWANCE OUT OF 'PERIPHERAL DEVELOPMENT EXPENSES' - RS.3,48,05,782/ - : A. THAT THE LEARNED AO HAS MISCONSTRUED/MIS - APPRECIATED THE FACTS AND THE DISALLOWANCE OF RS.3,48,05,782 UNDER 'PERIPHERAL DEVELOPMENT EXPENSES' BY TREA TING THE SAME AS ADVANCES AND NOT EXPENDITURE IS BASED ON IRRELEVANT CONSIDERATIONS, PRESUMPTIONS, CONJECTURES AND SURMISES, WITHOUT ANY MATERIAL EVIDENCE, CONTRARY TO FACTS AND IS UNJUSTIFIED, ARBITRARY, ERRONEOUS AND BAD ON FACTS AS WELL AS IN LAW AND LE GALLY UNTENABLE. B. THAT THE LEARNED AO HAS GROSSLY ERRED, UNJUSTIFIED AND ARBITRARY IN IGNORING/NOT FOLLOWING THE ORDERS PASSED BY THE HON'BLE ITAT IN RESPECT OF PAST ASSESSMENT YEARS IN ASSESSEE'S OWN CASE WHEREIN, IN SIMILAR CIRCUMSTANCES, IT HAS BEEN HELD THAT 'PERIPHERAL DEVELOPMENT EXPENSES' IS FULLY ALLOWABLE. 4. DISALLOWANCE U/S.43B OF ACT UNDER 'ELECTRICITY DUTY' & WATER CHARGES RS.35,98,95,314/ - : A. THAT THE ADDITION OF RS.35,98,95,314/ - U/S.43B OF THE ACT UNDER 'ELECTRICITY DUTY'& 'WATER CHARGES' BY THE LEARNED AO IS INCORRECT, UNJUSTIFIED, ARBITRARY, ERRONEOUS, AND BAD ON FACTS AS WELL AS IN LAW. B. THE LEARNED AO HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAVING PAID THE AFORESAID AMOUNT OF RS.35,98,95,314/ - & RS.47,35,67,572 UNDER 'ELECTRICITY DUTY' & WATER CHARGES INTO THE DESIGNATED ACCOUNT BY ACTING AS PER HON'BLE HIGH COURT'S DIRECTIONS, DISALLOWANCE U/S.43B OF THE ACT IS NOT ATTRACTED. 5. DISALLOWANCE OF CLAIM OF ADDITIONAL DEPRECATION U/S .32(L)(IIA) OF THE ACT. RS.8,91,29,640/ - : THAT THE LEARNED AO HAS MIS - APPRECIATED THE FACTS AND THE DISALLOWANCE OF ASSESSEE'S CLAIM OF ADDITIONAL DEPRECATION U/S.32(L)(IIA) OF RS.8,91,29,640/ - IS CONTRARY TO FACTS AND BAD IN LAW. ITA NO . 193 /CTK/201 8 7 6. DISALLOWANCE U NDER 'PRIOR PERIOD ADJUSTMENTS' - RS.4,85,17,888/ - : A. THAT THE LEARNED AO HAS MISCONSTRUED/MIS - APPRECIATED THE FACTS AND THE DISALLOWANCE OF RS.4,85,17,888/ - UNDER THE NOMENCLATURE 'PRIOR PERIOD ADJUSTMENTS' IS CONTRARY TO FACTS, ARBITRARY , EXCESSIVE , UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. B. THAT THE LEARNED AO HAVING ACCEPTED THE CREDITS UNDER THE NOMENCLATURE 'PRIOR PERIOD ADJUSTMENTS' IS UNJUSTIFIED AND HAS ERRED IN DISALLOWING THE DEBITS UNDER THE SAID 'PRIOR PERIOD ADJUSTMENTS' C. WITHOUT P REJUDICE TO GROUND (A) ABOVE, ASSUMING BUT NOT ADMITTING THAT THE SAID AMOUNTS ARE EXPENSES OF PAST YEARS, IT IS SUBMITTED THAT THE RATES OF INCOME TAX FOR THE ASSESSMENT UNDER CONSIDERATION BEING EITHER EQUAL TO OR LOWER THAN THE RATES IN THE PAST ASSESSM ENT YEARS, AS THE EXPENSES DEBITED UNDER THE SAID 'PRIOR PERIOD ADJUSTMENTS' ARE OTHERWISE ALLOWABLE IN THE SAID PAST YEARS, THE AFORESAID AMOUNT OF RS.4,85,17,888/ - , EVEN THOUGH DEBITED TO THE P/L ACCOUNT OF THE CURRENT YEAR OUGHT NOT BE DISALLOWED. 7. D ISALLOWANCE IN RESPECT OF PROVISION FOR LEAVE ENCASHMENT U/S.43B(F) - RS. 12,04,58,663/ - THAT THE DISALLOWANCE OF RS. 12,04,58,663/ - IN RESPECT OF PROVISION FOR LEAVE ENCASHMENT UNDER SECTION 43B(F) OF THE ACT BY THE LEARNED AO IS ARBITRARY, ERRONEOUS AND BAD IN LAW IN VIEW OF THE VALIDITY OF THE AMENDMENTS MADE BY FINANCE ACT, 2001 BY INSERTION OF SUBSECTION (F) TO SECTION 43B OF THE ACT HAVING BEEN STRUCK DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. VS. UNION OF INDIA IN A PO NO. 301/2005 [REPORTED IN (2007) 292 ITR 470] BY HOLDING THE SAME BEING ARBITRARY, UNCONSCIONABLE AND DE HORS THE APEX COURT DECISION IN THE CASE OF BHARAT EARTH MOVERS V. CIT [2000] 245 ITR 428. 8. DISALLOWANCE UNDER U/S.40(A)(IA) OF THE ACT - RS.3, 92,84,875/ - : A. THAT THE DISALLOWANCE OF RS.3,92,84,875/ - U/S.40(A)(IA) IN RESPECT OF WHEELING CHARGES FOR TRANSMISSION OF POWER MADE BY LEARNED AO IS CONTRARY TO FACTS, ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. B. THAT THE ASSESSEE HAVING NOT VIOLATED ANY PROVISIONS OF CHAPTER XVIIB OF THE IT ACT. RELATING TO TDS IN RESPECT OF RS.3,92,84,875/ - TOWARDS WHEELING CHARGES FOR TRANSMISSION OF POWER, THE SAME DOES NOT FALL UNDER THE PROVISIONS U/S.40(A)(IA) AND HENCE THE DISALLOWANCE OF RS.3,92,84,8 75/ - IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. C. THAT WITHOUT PREJUDICE TO GROUND (A & B) ABOVE, THE AFORESAID SUM OF RS.3,92,84,875/ - TOWARDS WHEELING CHARGES FOR TRANSMISSION OF POWER DO NOT FALL UNDER SECTION 1941 OF THE I.T. ACT AND HENCE THE PROVISIONS U/S.40(A)(IA) BEING NOT ATTRACTED, THE DISALLOWANCE OF RS.3,92,84,875/ - IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. ITA NO . 193 /CTK/201 8 8 D. WITHOUT PREJUDICE TO GROUND (A & C) ABOVE, THE LEARNED AO HAS MIS - APPRECIATED THE FACTS AND HER CONCLUSION TH AT THE WHEELING CHARGES FOR TRANSMISSION OF POWER ATTRACTS TDS U/S.194 I OF THE I.T. ACT IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. 9. DISALLOWANCE OF CLAIMS, RECEIVABLE, DEBTS, SHORTAGES ETC. WRITTEN OFF - RS.4,18,22,218/ - : A. THAT THE LE ARNED AO HAS MISCONSTRUED/MIS - APPRECIATED THE FACTS AND THE DISALLOWANCE OF RS.4,18,22,218/ - UNDER CLAIMS, RECEIVABLE, DEBTS, SHORTAGES ETC. WRITTEN OFF IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD ON FACTS AS WELL AS IN LAW. B. THAT THE SUM OF RS.4,18 ,22,218/ - UNDER CLAIMS, RECEIVABLE, DEBTS, SHORTAGES ETC. WRITTEN OFF BEING REVENUE/TRADING LOSS, THE SAME LEARNED AO OUGHT TO HAVE ALLOWED THE SAME. 10. DISALLOWANCE OF INTEREST ON DISPUTED GOVT, DUTY (ELECTRICITY DUTY AND WATER CHARGES - RS.59,55,89,734/ - : A. THAT THE LEARNED AO HAS MISCONSTRUED/MIS - APPRECIATED THE FACTS AND THE AND THE DISALLOWANCE/ADDITION OF RS.59,55,89,734/ - UNDER 'INTEREST ON DISPUTED GOVT, DUTY (ELECTRICITY DUTY AND WATER CHARGES)' IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD ON FACTS AS WELL AS IN LAW. B. THAT THE SUM OF RS.59,55,89,734/ - UNDER 'INTEREST ON DISPUTED GOVT, DUTY (ELECTRICITY DUTY AND WATER CHARGES)' BEING STATUTORY LIABILITY IS FULLY DEDUCTIBLE ON ACCRUAL BASIS AND THEREFORE, THE LEARNED AO OUGHT NOT HAVE DISALL OWED THE SAME BY HOLDING THAT THE SAME IS UNASCERTAINED LIABILITY. C. THAT THE LEARNED AO HAS GROSSLY ERRED, UNJUSTIFIED AND ARBITRARY IN IGNORING/NOT FOLLOWING THE ORDERS PASSED BY THE HON'BLE ITAT, CUTTACK BENCH IN RESPECT OF PAST ASSESSMENT YEARS IN ASS ESSEE'S OWN CASE WHEREIN, IN SIMILAR CIRCUMSTANCES, IT HAS BEEN HELD THAT INTEREST ON ELECTRICITY DUTY AND WATER CHARGES ARE FULLY ALLOWABLE. 11. ADDITION UNDER LOSS ON SALE OF ASSETS RS.67,52,495/ - : A. THAT THE LEARNED AO HAS MISCONSTRUED/MIS - APP RECIATED THE FACTS AND THE ADDITION OF RS.67,52,495/ - UNDER LOSS ON SALE OF ASSETS IS ARBITRARY, UNJUSTIFIED, ERRONEOUS AND BAD ON FACTS AS WELL AS IN LAW. B. THAT THE SUM OF RS.67,52,495/ - UNDER 'LOSS ON SALE OF ASSETS' HAVING ALREADY BEEN ADDED IN THE COMPUTATION OF INCOME/ TAX RETURN AS PER IT ACT, THE ADDITION OF THE SAID RS.67,52,495/ - BY THE LEARNED AO IS ARBITRARY, UNJUSTIFIED, WRONG, ERRONEOUS AND BAD ON FACTS AND IN LAW. 12. NON CREDIT OF TDS OF RS.55,48,33,568/ - : THAT THE LEARNED AO OUGHT TO HA VE GIVEN FULL CREDIT FOR TDS AND SAME HAVING NOT BEEN DONE I.E. (NON CREDIT OF TDS FOR RS.55,48,33,568/ - ), IS CONTRARY TO FACTS, ARBITRARY UNJUSTIFIED, ERRONEOUS AND BAD IN LAW. ITA NO . 193 /CTK/201 8 9 13. WRONG COMPUTATION OF TOTAL TAX PAYABLE INCLUDING INCOME TAX S.C. & ED. CE SS AT RS.896,79,43,469/ - . THAT THE LEARNED AO HAVING ASSESSED INCOME AT RS.2638,30,64,340/ - IS WRONG IN COMPUTING TOTAL TAX PAYABLE INCLUDING INCOME TAX, SURCHARGE & EDUCATION CESS AT RS.896,79,43,469/ - 14. LEVY OF INTEREST U/S. 234B AND 234C OF THE ACT - RS.32,53,70,760/ - AND RS.7,42,86,476/ - RESPECTIVELY A. T HAT THE ASSESSEE HAVING ALREADY PAID ADVANCE TAX OF RS.766,00,00,000/ - BY 31.03.2008, AND HAVING TDS OF RS.87,68,05,005/ - , THE ASSESSEE DENIES ITS LIABILITY FOR INTEREST CHARGED U/S. 234B OF THE AC T OF RS.32,53,70,760/ - IN THE SAID ASSESSMENT ORDER AND THE SAID INTEREST CHARGED IS WHOLLY UNWARRANTED, UNJUSTIFIED, ARBITRARY, ERRONEOUS, WRONG AND BAD IN LAW. B. THAT THE ASSESSEE HAVING ALREADY PAID ADVANCE TAX OF RS.766,00,00,000/ - BY 31.03.2008, AND HAVING TDS OF RS.87,68,05,005/ - , THE CHARGE OF INTEREST OF RS.7,42,86,476/ - U/S 234C OF THE I.T. ACT IS ERRONEOUS, WRONG AND BAD IN LAW. 15. THAT THE APPELLANT CRAVES LEAVE TO ADD, SUPPLEMENT, MODIFY THE GROUNDS HEREIN - IN - ABOVE BEFORE OR AT THE HEARING OF THE APPEAL. 6. AT THE OUTSET, LD. AR SUBMITTED THAT ALL THE ISSUES RAISED IN THIS APPEAL MAY KINDLY BE RESTORED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION AS THE CIT(A) VIDE ORDER DATED 21.02.2013 HAS OBSERVED THAT SINCE THE ASSESSMENT IN THIS CASE IS REOPENED, THEREFORE, HE HAS NO SCOPE TO PROCEED FURTHER TO ARBITRATE ANY OF THE GROUND AND DISMISSED THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 7. LD. DR BEFORE US ALSO FAIRLY AGREED TO THE CONTENTION OF LD. AR OF THE ASSESSEE. 8. AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL FOR THE ASSESSMENT YEAR 2008 - 2009, WHEREIN THE TRIBUNAL VIDE ORDER DATED 23.04.2018 IN PARA 75 HAS ITA NO . 193 /CTK/201 8 10 OBSER VED THAT THE ASSESSEE HAS RAISED GROUNDS IN RESPECT OF ADDITIONS MADE U/S.143(3) OF THE ACT DATED 30.12.2010, WHICH WAS DISMISSED BY THE CIT(A) ON 21.02.2013 AND THE ASSESSEE HAS NOT PURSUED THE MATTER FURTHER AND FILED AN APPEAL BEFORE THE TRIBUNAL ON THE OTHER OF CIT(A) PASSED U/S.143(3)/147 R.W.S.250 OF THE I.T.ACT, 1961, DATED 08.06.2015. THEREAFTER THE TRIBUNAL OBSERVED THAT THE GROUNDS RAISED BY THE ASSESSEE DO NOT EMANATE FROM THE ORDER OF THE CIT(A) DATED 21.04.2014 PASSED U/S.143/147 OF THE ACT. NO W, THE ASSESSEE HAS COME IN APPEAL AGITATING THE ISSUES NOT DECIDED BY THE CIT(A) IN ITS ORDER DATED 21.02.2013, WHEREIN THE CIT(A) WHILE IN ITA NO.0161/10 - 11 FOR A.Y.2008 - 2009 HAS OBSERVED AS UNDER : - D. ITA NO.0161/10 - 11 FOR ASST. YEAR 2008 - 09 THE ORIGINAL ASSESSMENT FOR ASSESSMENT YEAR 2008 - 09 WAS COMPLETED U/S.143(3) ON 30.12.2010 BY THE ADDL . COMMISSIONER OF INCOME TAX, RANGE - 2, BHUBANESWAR. HOWEVER, IN THE MEANWHILE, THE AO HAS TAKEN ACTION U/S.147 AND HAS ISSUED A NOTICE U/S. 148 ON 10.07 .2012. IT IS SETTLED IN LAW THAT FOR WHATEVER REASONS A COMPLETED ASSESSMENT IS REOPENED U/S. 147, THE ENTIRE ASSESSMENT IS OPEN BEFORE THE AO FOR BEING REDONE. THEREFORE, ALL THE ISSUES WHICH HAVE CROPPED - UP IN THE PRESENT ORIGINAL ASSESSMENT WILL HAVE TO BE THERE FOR A FRESH DECISION IN THE REASSESSMENT. THE APPELLANT WILL BE FREE TO COME BEFORE ME IN APPEAL AGAINST THE ORDER OF REASSESSMENT CHALLENGING ALL THOSE GROUNDS WHICH HE HAS TAKEN IN THE PRESENT APPEAL. IN ABSENCE OF A VALID AND EXISTING ASSESSM ENT AS OF NOW, I HAVE NO SCOPE TO PROCEED FURTHER TO ARBITRATE ANY OF THE GROUND. THEREFORE, THE APPEAL HAS BECOME INFRUCTUOUS AND IS TREATED AS DISMISSED FOR STATISTICAL PURPOSES. ON PERUSAL OF THE OBSERVATIONS ITAT IN ITS ORDER DATED 23.04.2018 AND THE OBSERVATIONS OF THE CIT(A) AS QUOTED ABOVE, WE ARE OF THE OPINION THAT THE GROUNDS TAKEN BY THE ASSESSEE HAVE NOT BEEN ADJUDICATED ITA NO . 193 /CTK/201 8 11 EITHER BY THE ITAT OR BY THE CIT(A). ACCORDINGLY, WE SET ASIDE ALL THE ISSUES RAISED IN THE PRESENT APPEAL TO THE FILE OF CI T(A) WITH A DIRECTION TO DECIDE THE ISSUES RAISED BY THE ASSESSEE AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING. THE ASSESSEE IS ALSO DIRECTED TO COOPERATED WITH THE CIT(A) FOR EARLY DISPOSAL OF THE CASE. THUS, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 / 02 /20 20 . S D/ - ( C.M.GARG ) S D/ - ( L.P.SAHU ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 26 / 02 /20 20 PRAKASH KUMAR MISHRA , S R.P.S . / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. APPELLANT - NATIONAL ALUMINIUM COMPANY LIMITED, NALCO BHAWAN, P/1, NAYAPALLI, BHU BANESWAR 2. RESPONDENT ASST.CIT, CORPORATE CIRCLE - 1(2), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//