ESSAR CONSTRUCTIONS (INDIA) LTD ( FORMERLY KNOWN AS ESSAR CONSTRUCTION LTD), MUMBAI V. ADDL CIT CIR 5(1), MUMBAI

ITA 2434/MUM/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4997 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 18-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C P PATNAIK
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I , MUMBAI BEFORE SHRI P.M. JAGTAP , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 2434/MUM/09 ASSESSMENT YEAR: 2006 - 07 M/S. ESSAR CONSTRUCTIONS (INDIA) LTD. ESSAR HOUSE, 11, KESHAVRA O KHADYE MARG, MAHALAXMI, MUMBAI - 400 034 PAN: AA AC E2358J VS. THE A DDITIONAL COMMISSIONER OF INCOME TAX, CIRCLE 5 (1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SHRI K.C.P. PATNAIK, D.R. DATE OF HEARING : 18.07.13 DATE OF PRONOUNCEMENT : 13.09.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A ) DATED 12.03.09 RELEVANT TO ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION WORK. THE ASSESSEE COMPANY CLAIMED DEDUCTION OF RS.3,08,07,921/ - UNDER SECTION 80IA OF THE INCOME TAX ACT CLAIMING ITSELF TO BE A DEVELOPER WHEREAS THE AUTHORITIES BELOW DISALLOWED THE CLAIM OF THE ASSESSEE TREATING IT AS A CONTRACTOR. THUS THE DISPUTE INVOLVED IN THE PRESENT CASE IS AS TO WHETHER THE ASSESSEE HAS BEEN A DEVELOPER OR MERELY A CONTRACTOR. 3. THE ASSESSEE HAS MOVED AN APPLICATION FOR ADDITIONAL EVIDENCE TO PRODUCE A CERTIFICATE ON THE FILE ISSUED BY M/S. GUJARAT WATER RESOURCE DEVELOPMENT CORPORATION LTD. CERTIFYING THE CARRYING OUT OF CERTAIN CONSTRUCTION WORK OF THE CORPORATION BY THE ASSESSEE DURING THE PAST . ASSESSEE WANTS TO RELY UPON THE SAID CERTIFICATE TO PROVE THAT IT FALLS IN THE DEFINITION OF DEVELOPER AND NOT A CONTRACTOR. ITA NO. 2434/M/09 M/S. ESSAR CONSTRUCTIONS (INDIA) LTD. 2 4. THE LD. A.R. BEFORE US HAS SUBMITTED THAT THE SAID CERTIFICATE IS DATED 22.12.11 AND THE SAME WAS NEITHER IN EXISTENCE NOR IN POSSESSION OF THE ASSESSEE AT THE TIME OF DISPOSAL OF THE CASE OF THE ASSESSEE BY THE AUTHORITIES BELOW. HE HAS FURTHER SUBMITTED THAT THE ADDITIONAL EVIDENCE WHICH THE ASSESSEE HAS SO UGHT TO SUBMIT GOES TO THE ROOT OF THE CASE AND IS VERY MUCH NECES SARY TO BE TAKEN INTO CONSIDERATION FOR THE JUST AND PROPER DECISION OF THE CASE. ON THE OTHER HAND THE LD. D.R. HAS OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE AT THIS STAGE. 5. THE EVIDENCE SOUGHT TO BE PRODUCED WAS NOT IN POSSESSION OF THE ASSE SSEE AT THE TIME OF PROCEEDINGS BEFORE THE AUTHORITIES BELOW. SINCE THE DISPUTE INVOLVED IN THE PRESENT CASE IS THAT WHETHER THE ASSESSEE FALLS IN THE DEFINITION OF A BUILDER OR DEVELOPER , HENCE, U NDER SUCH CIRCUMSTANCES , THE CERTIFICATE ISSUED BY A GOVER NMENT UNDERTAKING, IN OUR VIEW IS A DOCUMENT WHICH REQUIRES CONSIDERATION BY THE AUTHORITIES FOR THE DETERMINATION OF THE ISSUE IN DISPUTE. UNDER SUCH CIRCUMSTANCES, IN OUR VIEW IT WILL BE IN THE INTEREST OF JUSTICE TO ALLOW THE APPLICATION FOR ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. ACCORDINGLY, THE APPLICATION FOR ADDITIONAL EVIDENCE FILED BY THE ASSESSEE FOR PRODUCTION OF CERTIFICATE DATED 22.12.11 IS HEREBY ALLOWED. THE ORDER UNDER APPEAL IS HEREBY SET ASIDE. THE CASE IS REMANDED BACK TO THE FILE OF THE AO WITH A DIRECTION TO ADMIT THE SAID CERTIFICATE OR ANY OTHER RELEVANT DOCUMENT SOUGHT TO BE PRODUCED BY THE ASSESSEE ON THE FILE AND THEREAFTER MAKE A FRESH ASSESSMENT AFTER DUE CONSIDERATION OF THE SUBMISSIONS OF THE ASSESSEE AS WELL DOCUMENTS S O PRODUCED ON THE FILE . IT IS FURTHER CLARIFIED THAT T HE ASSESSEE WILL BE GIVEN ONE EFFECTIVE OPPORTUNITY BY THE A SSESSING OFFICER TO PRODUCE ANY ADDITIONAL EVIDENCES ON THE FILE , T HEREAFTER THE AO WILL MAKE ASSESSMENT A FRESH IN ACCORDANCE WITH LAW. 7 . SINCE THE APPLICATION OF THE PRODUCTION OF ADDITIONAL EVIDENCE HAS BEEN ALLOWED AND THE CASE HAS BEEN RESTORED TO THE FILE OF THE AO, HENCE THIS APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13.09. 201 3. SD/ - SD/ - (P.M. JAGTAP) ( SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 13.09. 2013 . * KISHORE ITA NO. 2434/M/09 M/S. ESSAR CONSTRUCTIONS (INDIA) LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.