M/s. Airlight Electronics (P) Ltd., Kolkata V. ITO, Ward - 6(1), Kolkata, Kolkata

ITA 21/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9291 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 25-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 05-01-2010
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR
• Assessee Lawyers: R K GOEL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 143(3); 80IB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA () BEFORE , , , , , /AND , . . !' ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SRI C. D. RAO, AM] # # # # / I.T.A NO. 21/KOL/2010 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR : 2004-05 AIRLIGHT ELECTRONICS (P) LTD. VS INCOME-TAX OFFIC ER, WD-6(1), KOLKATA (PAN- AACCA 3678 F) ()* /APPELLANT ) (+,)*/ RESPONDENT ) FOR THE APPELLANT: SHRI R. K. GOEL FOR THE RESPONDENT: SHRI S. K. MALAKAR !- / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-VI, KOLKATA IN APPEAL NO.128/CIT(A)-VI/06-07/WARD-6(1) VIDE ORDER DATED 2 9.10.2009. THE ASSESSMENT WAS FRAMED BY ITO, WD-6(1), KOLKATA U/S 143(3) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2004-05 VIDE HIS ORD ER DATED 30.11.2006. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE I S AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF DEDUCTION U/S 80IB CLAIMED ON T HE BASIS OF UNIT WISE ACCOUNTS, THE CIT(A) REFUSED TO ADMIT EVIDENCES IN VIEW OF RULE 46A(1) O F I. T. RULES, 1962. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING TWO EFFECTIVE GROUNDS: 1. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) IS ERRED IN HOLDING THE A.OS VIEW I.E. IN LIMITING THE DEDUCT ION U/S 80IB OF THE I. T. ACT, 1961 TO RS.4,63,759/- AS THE SAME IS ILLEGAL, UNJU STIFIED AND ARBITRARY. 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) FAILED TO CONSIDER THE UNIT WISE ACCOUNTS ON THE BASIS OF RU LE 46A. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSEE, A PRIVATE LIMITED COMPANY, IS HAVING ITS MANUFACTURING UNIT AT FARIDABAD IN HARYANA, AND DURING FINANCIAL YEAR 2003-04, IT ALSO SET UP A MANUFACTURING UNIT AT PARWANOO, HIMACHAL PRADESH TO CLAIM DEDUCTIONS AVAILABLE TO B ACKWARD INDUSTRIAL STATES. ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAS FILED CENTRAL EXCISE RETURNS IN THE NAME OF AIRLITE ELECTRONICS P VT. LTD., 139, DLF INDUSTRIAL ESTATE, PHASE- ITA 21/K/2010 AIRLIGHT ELECTRONICS (P) LTD. AY 04-0 5 1, FARIDABAD, AND ACCORDING TO HIM, IT CARRIED ON M ANUFACTURING ACTIVITY AT FARIDABAD TILL JANUARY, 2004. ACCORDING TO ASSESSING OFFICER, IT HAS STARTED MANUFACTURING ACTIVITY AT PARWANOO FROM 20.8.2003. ACCORDING TO ASSESSING OF FICER, THE ASSESSEE HAS NOT MAINTAINED SEPARATE BOOKS OF ACCOUNT FOR BOTH THE UNITS AND HA S FILED ONLY CONSOLIDATED P&L ACCOUNT FOR BOTH THE UNITS. THE ASSESSEE CLAIMED THAT IT HAD F ILED RETURN OF INCOME ALONG WITH FORM NO. 10CCB DULY CERTIFIED BY AUDITORS CLAIMING EXEMPTION , BUT THE ASSESSING OFFICER RESTRICTED THE CLAIM OF DEDUCTION U/S. 80IB, THE DEDUCTION ON PROP ORTIONATELY DISTRIBUTED PROFIT OF PARWANOO UNIT AT RS.4,63,759/-. AGGRIEVED, ASSESSEE PREFERR ED APPEAL BEFORE THE CIT(A) AND HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER AFTER GIVING FOLLOWING FINDINGS IN HIS APPELLATE ORDER: I HAVE GONE THROUGH THE SUBMISSIONS OF THE APPELLAN T AND ALSO THE ORDER OF THE A.O. RULE 46A(1) OF THE I. T. RULES, 1962, ENUMERA TES 4 CIRCUMSTANCES ALLOWING THE APPELLANT TO PRODUCE ADDITIONAL EVIDENCE THESE ARE; I) IF THE ASSESSING OFFICER REFUSES TO ADMIT THE E VIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; II) WHEN THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING SUCH EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER; III) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIE NT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH I S RELEVANT TO ANY GROUND OF APPEAL; AND LASTLY IV) WHEN NO SUFFICIENT/REASONABLE OPPORTUNITY OF H EARING TO THE APPELLANT WAS GIVEN TO ADDUCE ANY RELEVANT EVIDENCE BY THE ASSESSING OFFICER AT THE TIME OF PASSING THE ORDER IMPUGNED. IT IS CLEAR AND UNAMBIGUOUS THAT ONLY IN CASE OF A VAILABILITY OF ANY ONE OF THESE FOUR GROUNDS MENTIONED IN SUB RULE (1) OF RULE 46A , THE PRODUCTION OF ADDITIONAL EVIDENCE IS PERMITTED. IN THIS CASE, R EQUIREMENTS OF RULE 46A HAVE NOT BEEN SATISFIED. THE ASSESEE HAD NOT MADE ATTE MPTS TO PRODUCE THE EVIDENCE BEFORE THE A.O. SINCE APPELLANT FAILED TO FOLLOW THE REQUIREMENTS OF RULE 46A, THE UNIT WISE ACCOUNTS SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS CANNOT BE CONSIDERED FOR DECIDING THE APPEAL IN TH IS CASE. THE APPELLANT WAS NOT ABLE TO SHOW ANY REASON FOR NOT FILING THE UNI T WISE ACCOUNTS BEFORE THE A.O. 4. WE FIND FROM ARGUMENTS OF THE LD. COUNSEL AS WEL L AS FROM THE RECORDS THAT BEFORE THE CIT(A), THE ASSESSEE PRODUCED EVIDENCES I.E. CONSOL IDATED P&L ACCOUNT, AUDITORS REPORT AND WORKING OF P&L ACCOUNT OF INDIVIDUAL UNITS, BUT THE CIT(A) REFUSED TO ADMIT THESE EVIDENCES IN VIEW OF RULE 46A OF I. T. RULES, 1962. WHEN THI S WAS POINTED OUT FROM THE BENCH, THE LD. DR, HOWEVER, SUPPORTED THE ORDER OF LOWER AUTHORITI ES BUT STATED THAT THE ISSUE CAN BE REMITTED ITA 21/K/2010 AIRLIGHT ELECTRONICS (P) LTD. AY 04-0 5 BACK TO THE FILE OF CIT(A) FOR DECIDING THE ISSUE A FRESH AFTER ADMITTING THESE EVIDENCES. WE, IN THE INTEREST OF NATURAL JUSTICE AND FAIR PLAY TO TH E PROCEEDINGS, ARE OF THE VIEW THAT THESE EVIDENCES SHOULD BE ADMITTED BY CIT(A) AND IF HE RE QUIRES, A REMAND REPORT CAN BE ASKED FROM THE ASSESSING OFFICER. ACCORDINGLY, CIT(A) WILL DE CIDE THE ISSUE ON MERITS AND PASS A SPEAKING ORDER ON THE ABOVE ISSUE AFTER ADMITTING T HESE EVIDENCES AND ALSO PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS A PPEAL OF THE ASSESSEE IS SET ASIDE TO THE FILE OF CIT(A) AND ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2011. SD/- SD/- . . , !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED 11 TH DAY OF MARCH, 2011 ./ $01 2 JD.(SR.P.S.) !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT AIRLIGHT ELECTRONICS (P) LTD., 16, BRIT ISH INDIAN STREET, KOLKATA-69. 2 +,)* / RESPONDENT, ITO, WARD-6(1), KOLKATA 3 . -$ / THE CIT(A)-VI, KOLKATA, 4. -$ ( )/ THE CIT, KOLKATA 5 . => +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$?/ BY ORDER, 1 /ASSTT. REGISTRAR .