M/s. BramhaCorp Ltd., Pune V. Income-tax Officer,

ITA 2172/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0415 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 09-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Deemed dividend; TDS; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 2(22)(e)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 2172/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2007-08 M/S. BRAMHACORP LIMITED, C/O RESIDENCY CLUB, 3, QUEENS GARDEN ROAD, PUNE 411001 PAN : AADFB8649M ....... / APPELLANT ' /VS. INCOME TAX OFFICER, WARD-4(5), PUNE / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI K.K. MISHRA / DATE OF HEARING : 03-11-2016 / DATE OF PRONOUNCEMENT : 30-11-2016 * / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 11-08 -2014 FOR THE ASSESSMENT YEAR 2007-08. 2 ITA NO. 2172/PN/2014, A.Y. 2007-08 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS A BUILDER, DEVELOPER AND DEALER IN REAL ESTATE. THE ASSESSEE IS ALSO ENGAGED IN TRADING OF SHARES. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON 31-03-2009 DECLARING TOTAL INCOME OF ` 17,92,19,400/- AFTER CLAIMING DEDUCTION U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT). THE INCOME OF THE ASSESSEE WAS DETERMINED AT ` 22,50,31,830/- VIDE ASSESSMENT ORDER DATED 30-12-2009 PASSED U/S. 143(3) O F THE ACT. THEREAFTER, THE COMMISSIONER OF INCOME TAX (APPEALS) INVOKE D REVISIONAL JURISDICTION U/S. 263 OF THE ACT AND ISSUED SHO W CAUSE NOTICE TO THE ASSESSEE ON 16-03-2012. IN REVISION PROCEEDINGS THE COMMISSIONER OF INCOME TAX RATTLED VARIOUS ISSUES WHICH INT ER ALIA INCLUDES DISALLOWANCE OF INTEREST EXPENDITURE ` 3,85,32,993/-, INTEREST INCOME ON INVESTMENTS AND ADVANCES ` 2,64,62,054/- AND ADDITION ON ACCOUNT OF DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT ` 57,31,276/-. IN PURSUANCE TO THE ORDER OF COMMISSIONER OF INCOME TAX DA TED 28-03-2012 U/S. 263, THE ASSESSING OFFICER PASSED ASSESSM ENT ORDER MAKING ADDITION ON ACCOUNT OF CAPITALIZATION OF INTEREST EXPE NDITURE, DEEMED DIVIDEND AND INTEREST INCOME. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28-03-2012 P ASSED U/S. 143(3) R.W.S. 263, THE ASSESSEE CARRIED THE MATTER IN APPE AL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF I NCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ISSUES WERE CRYSTALLIZED BY THE COMMISSIONER OF INCOME TAX IN REVISIONAL JURISDICTION. THE COMMISSIONER OF INCOME TAX (APP EALS) HELD THAT THE COMMISSIONER OF INCOME TAX HAS GIVEN A CATEGOR IC AND DEFINITE 3 ITA NO. 2172/PN/2014, A.Y. 2007-08 FINDING ON THE ISSUE OF INTEREST AND DEEMED DIVIDEND. THE A SSESSING OFFICER WAS OBLIGATED TO GIVE EFFECT TO THE ORDER OF COMMISSIO NER OF INCOME TAX. AGAINST THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX INVOKED RE VISIONAL JURISDICTION U/S. 263 ON SEVEN ISSUES WHICH INCLUDE: (I) INTERE ST EXPENDITURE, (II) VARIATION IN COST OF LAND AT MOHAMMADWADI, (III) ALLOCATION OF LAND COST TO BRAHMA AVENUE, (IV) VARIATION OF LAN D COST, (V) DEEMED DIVIDEND U/S. 2(22)(E), (VI) VIOLATION OF TDS PROVISIONS, VII) DEPRECIATION ON UPS. THE COMMISSIONER OF INCOME TAX WITHO UT GIVING ANY SPECIFIC FINDINGS ON ALL THE ABOVE ISSUES REMITTED THE MA TTER BACK TO ASSESSING OFFICER TO CONSIDER THE SAME AND PASS FRESH ASSESSMENT O RDER AFTER VERIFICATION. THE ASSESSING OFFICER AFTER CONSIDERING TH E SUBMISSIONS AND THE DOCUMENTS FURNISHED BY ASSESSEE MA DE ADDITION ON ACCOUNT OF CAPITALIZATION OF INTEREST ` 3,85,32,993/-, INCOME FROM DEEMED DIVIDEND ` 57,31,276/- AND INTEREST INCOME ` 2,64,62,054/- ONLY. AS FAR AS OTHER ISSUES NO ADDITION WAS MADE BY TH E ASSESSING OFFICER. IN FIRST APPEAL THE COMMISSIONER OF INCOME TAX (APPE ALS) HAS ERRED IN HOLDING THAT THE ISSUES BEFORE THE COMMISSIONER O F INCOME TAX IN REVISION PROCEEDINGS WERE CRYSTALLIZED AND HAD ATTAINED FINALITY. IN FACT, THE COMMISSIONER OF INCOME TAX (APPEALS) HAD NOT GIV EN ANY FINDING ON THE ISSUES AND REMITTED THE MATTER BACK TO TH E FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION ON MERITS. 4 ITA NO. 2172/PN/2014, A.Y. 2007-08 3.1 THE LD. AR FURTHER POINTED THAT HAD IT BEEN A CASE O F FINAL ADJUDICATION BY THE COMMISSIONER OF INCOME TAX, THE ASSES SING OFFICER WOULD HAVE MADE ADDITION IN RESPECT OF ALL THE ISSUES WHICH WERE REMITTED BACK BY THE COMMISSIONER OF INCOME TAX FOR DE N OVO ADJUDICATION. THE LD. AR FURTHER SUBMITTED THAT THE RAT IO LAID DOWN BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF HERDILLIA CHEMICALS LTD. VS. COMMISSIONER OF INCOME TAX REPORTED AS 221 ITR 194 ON WHICH THE COMMISSIONER OF INCOME TAX (APPEALS) HAS PLACED RELIANCE TO REJECT THE CONTENTIONS OF ASSESSEE DOES NOT APPLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF ASSESSEE. IN THE SAID CASE THE COMMISSIONER OF INCOME TAX HAD HIMSELF FINALLY DECIDED THE IS SUE. THE ONLY TASK LEFT FOR THE ASSESSING OFFICER WAS THE COMPUTATIO N OF RELIEF U/S. 80J AND IN ACCORDANCE WITH THE DIRECTIONS OF COMMISSIO NER OF INCOME TAX. WHEREAS, IN THE PRESENT CASE THE COMMISSION ER OF INCOME TAX HAS NOT GIVEN ANY SPECIFIC FINDING FOR MAKING ADDITIONS. T HE LD. AR SUBMITTED THAT IN RESPECT OF ISSUE RELATING TO DEEMED DIVID END IS CONCERNED THE CASE OF THE ASSESSEE IS SQUARELY COVERE D BY THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ASSISTANT CO MMISSIONER OF INCOME TAX VS. BHAUMIK COLOUR (P) LTD. REPORTED AS 18 DTR 451 (MUMBAI) AND THE DECISION OF HONBLE DELHI HIGH COURT IN THE C ASE OF COMMISSIONER OF INCOME TAX VS. ANKITECH (P) LTD. & ORS. REP ORTED AS 340 ITR 14. 4. ON THE OTHER HAND SHRI K.K. MISHRA REPRESENTING THE D EPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS) IN REJECTING THE APPEAL OF ASSESSEE. THE LD. DR SU BMITTED THAT THE ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER IN ACC ORDANCE WITH 5 ITA NO. 2172/PN/2014, A.Y. 2007-08 THE DIRECTIONS OF COMMISSIONER OF INCOME TAX U/S. 263 OF T HE ACT. THE LD. DR PRAYED FOR DISMISSING THE APPEAL OF THE ASSESSEE AN D AFFIRMING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH THE LD. AR OF T HE ASSESSEE HAS PLACED RELIANCE. THE ASSESSEE IN APPEAL HAS ASSAILED TH E FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ON THE GROUND THAT T HE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY ASSESSING OFFICER UNDER WRONG PRESUMPTIO N THAT THE COMMISSIONER OF INCOME TAX IN REVISION JURISDICTION HAS PASS ED THE FINAL ORDER FOR MAKING THE ADDITIONS. THE ASSESSEE IN APPEA L HAS RAISED FOUR GROUNDS. THE GROUND NOS. 1 AND 2 RELATE TO DISALLOWA NCE OF INTEREST EXPENDITURE. THE GROUND NO. 3 IS IN RESPECT O F INTEREST INCOME BEING HELD TO BE TAXABLE UNDER THE HEAD INCOME FROM OT HER SOURCES. THE GROUND NO. 4 IS WITH RESPECT TO ADDITION ON ACCOUNT OF DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. THE LD. AR OF THE ASSESSEE STATED AT THE BAR THAT HE IS NOT PRESSING GROUND NO. 3 RAISED IN THE APPEAL. ACCORDINGLY, T HE SAME IS DISMISSED AS NOT PRESSED. 6. AS REGARDS GROUND NOS. 1 AND 2 RELATING TO DISALLOWAN CE OF INTEREST EXPENDITURE ` 3,85,32,993/-, WE FIND THAT THE COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER PASSED U/S. 263 HAS OBS ERVED AS UNDER : 6 ITA NO. 2172/PN/2014, A.Y. 2007-08 10. AS REGARDS THE INTEREST OF RS.4,26,67,470/- DE BITED TO THE PROFIT & LOSS ACCOUNT, THE SUBMISSIONS MADE BY THE ASSESSEE HAVE BEEN NOTED. BASIC TO THE SUBMISSION IS THE CONTENTION THAT THE NET INTEREST EXPENDITURE IS ONLY RS.1.62 CR. AND THAT THE SAME IS RELATABLE TO SALES MADE UNDER THE VARIOUS PROJECTS, WHILE INTEREST ON THE PROJECT -SPECIFIC LOANS HAVE BEEN DULY DEBITED OR CAPITALIZED TO THE RESPECTIVE TRADI NG OR WORK-IN-PROGRESS ACCOUNTS. IN THIS CONNECTION THE FOLLOWING OBSERVA TIONS ARE WARRANTED : (A) XXXXXXXXXX. (B) XXXXXXXXXX. (C) THE ASSESSEE HAS CONTENDED THAT AFTER NETTING THE INTEREST PAYMENTS AGAINST THE INTEREST RECEIPTS, THE REMAINI NG INTEREST EXPENDITURE WOULD WORK OUT TO RS. 1.62 CRS. AND THE SAME IS RELATABLE TO SALES MADE UNDER THE VARIOUS PROJECTS AS WELL AS TO RE-SALE OF PLOT. IN VIEW OF WHAT HAS BEEN ALREADY STATED IN THE PRECEDI NG PARAS, THE NETTING REFERRED TO BY THE ASSESSEE AND ITS LD. AUTHORISED REPRESENTATIVE CANNOT BE MERELY PRESUMED. THE AMOUNT WHICH WILL BE ELIGIB LE FOR NETTING IS STILL FLUID. IF THE INTEREST RECEIPTS OR PART THEREOF ARE FOUND TO BE ASSESSABLE UNDER THE HEAD 'OTHER SOURCES', THE INTEREST EXPEND ITURE EXPENDED OR WHOLLY LAID OUT FOR EARNING SUCH INTEREST RECEIPTS WILL HAVE TO BE NETTED AGAINST SUCH INTEREST RECEIPTS. SINCE THIS MATTER H AS BEEN ALREADY RESTORED TO THE FILE OF THE ASSESSING OFFICER, THE NET INTEREST EXPENDITURE WHICH WILL BE STILL LEFT CANNOT BE DETERMINED AT TH IS STAGE. HOWEVER, WHATEVER WILL BE THE NET INTEREST EXPENDITURE OUT O F RS. 4,26,67,470/-, THE MOOT QUESTION IS WHETHER OR NOT THE SAME SHOULD BE APPORTIONED TO THE RESPECTIVE PROJECTS OR OTHER ACTIVITIES. THE AN SWER TO THIS QUERY WILL HAVE TO BE IN THE AFFIRMATIVE. THE ASSESSEE ITSELF HAS STATED THAT THE INTEREST OF RS. 4,26,67,470/- IS RELATABLE TO SALES MADE UNDER THE VARIOUS PROJECTS VIZ. BRAMHA HORIZON, BRAMHA MAJESTIC, BRAM HA AVENUE AND BRAMHA BAUG AS WELL AS TO RE-SALE OF PLOTS. THE ABO VE SUBMISSION ITSELF WOULD ESTABLISH THAT THE IMPUGNED INTEREST EXPENDIT URE CANNOT BE SEGREGATED FROM THE PROJECTS AS SUCH AND CLAIMED IN A GENERAL ACCOUNT. THEREFORE, IT IS NECESSARY THAT THE INTERE ST EXPENDITURE OF RS. 4,26,67,470/- OR PART THEREOF AS MAY REMAIN AFTER C ONSIDERING CERTAIN INTEREST' AS DEDUCTIBLE U/S. 57(II) IS APPORTIONED TO THE VARIOUS PROJECTS / ACTIVITIES TO WHICH THE SAME RELATES. THE ASSESSING OFFICER SHALL CALL FOR ALL THE RELEVANT DETAILS IN THIS RESPECT; ASCERTAIN THE PROJECTS AND ACTIVITIES FOR WHICH THE LOANS TO WHICH THE IMPUGNE D INTEREST EXPENDITURE 7 ITA NO. 2172/PN/2014, A.Y. 2007-08 RELATES HAD BEEN UTILISED, WHETHER DURING THE RELEV ANT PREVIOUS YEAR OR IN THE EARLIER YEARS; AND THEN APPORTION THE RELATABLE PURCHASES TO THE RESPECTIVE PROJECTS / ACTIVITIES. ALTERNATIVELY, HE SHALL TAKE THE RESPECTIVE SALES- AS THE RATIO OR ADOPT ANY OTHER REASONABLE Y ARDSTICK FOR THIS PURPOSE. THE ASSESSING OFFICER SHALL RECOMPUTE THE PROFITS FROM THE VARIOUS PROJECTS / ACTIVITIES ACCORDINGLY. IN RESPECT OF ADDITIONS ON ACCOUNT OF DEEMED DIVIDEND U/S . 2(22)(E) THE COMMISSIONER OF INCOME TAX OBSERVED : 13. A QUERY HAD BEEN RAISED IN THE SHOW CAUSE NOTI CE REGARDING THE APPLICABILITY OF THE PROVISIONS OF SECTION 2(22)(E) TO THE LOAN OF RS.28,62,69,477/- TAKEN BY THE ASSESSEE FROM M/S. B RAMHA BAZAZ INNS PVT. LTD. THE REPLY GIVEN BY THE ASSESSEE ON THIS I SSUE HAS BEEN ALREADY NOTED. THE ASSESSEE HAS ARGUED THAT SECTION 2(22)(E ) SHALL NOT APPLY TO THE TRANSACTION AS IT IS NOT A REGISTERED SHARE HOL DER OF THE ABOVE COMPANY. IN THIS CONNECTION A FEW CASE LAWS HAVE BE EN RELIED UPON. SECTION 2(22)(E) DOES NOT APPLY ONLY TO ADVANCE OR LOAN GIVEN TO SHARE-HOLDERS. IT ALSO APPLIES TO ADVANCE OR LOAN P AID 'TO ANY CONCERN IN WHICH SUCH SHARE-HOLDER IS A MEMBER OR PARTNER AND IN WHICH HE HAS A SUBSTANTIAL INTEREST (HEREIN AFTER IN THIS CLAUSE R EFERRED TO AS THE SAID CONCERN) OR ANY PAYMENT BY ANY SUCH COMPANY ON BEHA LF, OR FOR THE INDIVIDUAL BENEFIT, OF ANY SUCH SHARE-HOLDER TO EXT ENT TO WHICH THE COMPANY IN EITHER CASE POSSESSES ACCUMULATED PROFIT S.' THUS, THE SCOPE OF SECTION 2(22)(E) IS QUITE WIDE. IT IS, THEREFORE , NECESSARY THAT THE ASSESSING OFFICER EXAMINES THE APPLICABILITY OF THE PROVISIONS OF SECTION 2(22)(E) TO THE LOAN RECEIVED BY THE ASSESSEE FROM M/S. BRAMHA BAZAZ INNS PVT. LTD. ON THIS WIDER SPECTRUM AND ON THE BA SIS OF THE RELEVANT FACTS AND CIRCUMSTANCES AND DECIDES THE MA TTER AFRESH. 7. A PERUSAL OF THE RELEVANT EXTRACTS OF THE ORDER PASSE D U/S. 263 SHOWS THAT THE COMMISSIONER OF INCOME TAX HAS IDENTIFIED ISSUES ON WHICH THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT O RDER FAILED TO APPLY HIS MIND. THE COMMISSIONER OF INCOME TAX HAS RE MITTED THE ISSUES BACK TO ASSESSING OFFICER TO CONSIDER THE ISSUES A ND PASS ORDERS 8 ITA NO. 2172/PN/2014, A.Y. 2007-08 ON THE SAME. THE COMMISSIONER OF INCOME TAX HAS NOT PA SSED ANY FINAL ORDER SPECIFYING THE ADDITION TO BE MADE. IN RESPEC T OF INTEREST EXPENDITURE THE COMMISSIONER OF INCOME TAX HAS LEFT THE I SSUE OPEN FOR ADJUDICATION BY ASSESSING OFFICER, WHETHER TO CAPITALIZE THE INTEREST OR CHARGE TO PROFIT AND LOSS ACCOUNT. SIMILARLY, IN RESPECT O F DEEMED DIVIDEND THE COMMISSIONER OF INCOME TAX HAS DIRECTED THE ASSESSING OFFICER TO EXAMINE APPLICABILITY OF THE PROVISIONS OF SECTION 2(22 )(E) OF THE ACT. WE FIND MERIT IN THE SUBMISSIONS OF THE LD. AR THA T THE ISSUES WERE NOT CRYSTALLIZED BY THE COMMISSIONER OF INCOME TAX. THE COMMISSIONER OF INCOME TAX HAD DIRECTED THE ASSESSING OFFIC ER TO RE- EXAMINE THE ISSUES AND DECIDE THE MATTER ON THE BASIS O F FACTS AND DOCUMENTS. 8. IN THE CASE OF HERDILLIA CHEMICALS LTD. VS. COMMISSIONER OF INCOME TAX (SUPRA) THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 80J ON WORK-IN-PROGRESS. THE COMMISSIONER OF INCOME TAX INVOK ED THE PROVISIONS OF SECTION 263 AND GAVE SPECIFIC FINDINGS ON THE QUESTION OF INCLUSION OF VALUE OF WORK IN PROGRESS IN THE CAPITAL EMPLOYE D FOR THE PURPOSE OF COMPUTING THE RELIEF UNDER SECTION 80J. THE CO MMISSIONER OF INCOME TAX HIMSELF FINALLY DECIDED THE ISSUE HOLDING THAT T HE VALUE OF WORK IN PROGRESS CANNOT BE INCLUDED IN THE COMPUTATION O F CAPITAL EMPLOYED FOR THE PURPOSE OF CALCULATING RELIEF UNDER SECTION 80J OF THE ACT. THEREAFTER, THE ROLE OF ASSESSING OFFICER WAS ONLY TO RECOMPUTE DEDUCTION U/S. 80J AFTER EXCLUDING WORK IN PROGRESS. IN T HE BACKDROP OF THESE FACTS THE TRIBUNAL IN THE APPEAL BY ASSESSEE HE LD THAT THE ASSESSING OFFICER COULD NOT HAVE REVISITED THE CONTROVERSY WHILE PASSING FRESH ORDER TO GIVE EFFECT TO THE REVISIONAL ORDER. THE AS SESSING OFFICER 9 ITA NO. 2172/PN/2014, A.Y. 2007-08 WAS TO RECOMPUTE THE AMOUNT OF RELIEF U/S. 80J IN ACCORD ANCE WITH THE DIRECTIONS OF COMMISSIONER OF INCOME TAX. THE TRIBUNAL DISM ISSED THE APPEAL OF THE ASSESSEE. THE ASSESSEE CARRIED THE MATTE R IN APPEAL BEFORE THE HONBLE HIGH COURT. THE HONBLE HIGH COURT AFFIR MING THE FINDINGS OF TRIBUNAL HELD THAT ONLY SUCH ISSUES CAN BE AGITA TED IN APPEAL WHICH HAVE NOT ATTAINED FINALITY BY VIRTUE OF EARLIER O RDERS OF THE REVISIONAL OR APPELLATE AUTHORITIES. IT IS NOT OPEN IN AN APP EAL TO AGITATE ANY POINT WHICH HAS ALREADY BEEN DECIDED BY THE REVISION AL OR THE APPELLATE AUTHORITIES IN THEIR ORDER. IN THE PRESENT CASE AS HAS BEEN POINTED EARLIER, THE COMMISSIONER OF INCOME TAX IN HIS ORDER U/S. 263 HAS NOT GIVEN FINAL FINDING. THE COMMISSIONER OF INCOME TAX REMITTED THE ISSUE S RAISED IN REVISIONAL JURISDICTION BACK TO THE ASSESSING OFFICER WITH DIRE CTIONS TO RE-EXAMINE THE ISSUE AFTER OBTAINING NECESSARY DOCUMENTS FROM THE ASSESSEE. OUT OF TOTAL SEVEN ISSUES, ASSESSING OFFICER MAD E ADDITION ON THREE ISSUES AND IN THE REMAINING FOUR ISSUES NO ADDITION W AS MADE. THIS FACT ALSO SUPPORTS THE CASE OF ASSESSEE THAT THE ISSUES HAD NOT ATTAINED FINALITY DURING REVISION PROCEEDINGS. THUS, IN OUR CO NSIDERED VIEW THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF HERDILLIA CHEMICALS LTD. VS. COMMISSIONER OF INCOME TAX (SUPRA) IS NOT APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE. 9. SINCE, THE COMMISSIONER OF INCOME TAX (APPEALS) AT THE OU TSET HAD REJECTED THE GROUNDS RAISED BY THE ASSESSEE IN AP PEAL ON THE PRESUMPTION THAT THE COMMISSIONER OF INCOME TAX IN REVISIO NAL 10 ITA NO. 2172/PN/2014, A.Y. 2007-08 PROCEEDINGS HAD FINALLY DECIDED THE ISSUES, WE ARE OF CONSID ERED OPINION THAT THIS APPEAL NEEDS REVISIT TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION ON MERITS. THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL IS REMITTED BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION AFTER AFFORDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 30 TH DAY OF NOVEMBER, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 30 TH NOVEMBER, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE