M/s ISSL CPG BPO Pvt Ltd , Bangalore V. The Assistant Commissioner of Income Tax Circle-2(1)(1), Bangalore

ITA 2795/BANG/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6911 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-09-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 05-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEPT
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER IT A NO. 2795/BANG/2018 ASSESSMENT YEAR: 2012-13 M/S IISL CPG BPO PVT. LTD., (FORMERLY CRITICAL PARADIGM GESTALT BPO PVT. LTD), NO.51/1, LAKSHMI LAYOUT, VIA CHIKKA BEGUR GATE, MAIN ROAD, BOMMANAHALLI P.O., BENGALURU 560058. PAN: AAECC0858R VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , CIRCLE-2(1)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SMT. SHEETAL, ADVOCATE RESPONDENT BY : SHRI GANESH R GHALE, ADVOCATE & STANDING COUNSEL FOR DEPT. DATE OF HEARING : 09.09.2020 DATE OF PRONOUNCEMENT : 10 .0 9 .2020 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(APPEALS)-3, BENGALURU DATED 07.08.2018 RELATIN G TO ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : - 1. ON THE FACTS, THE ORDER OF THE LEARNED CIT ( APPEALS) DISMISSING THE GROUNDS RAISED OF ADDITIONAL GROUNDS IN ADDITION TO THE ORIGINAL GROUNDS IN PURSUANCE OF THE DIRECTIONS OF THE HON'BLE TRIBUNAL IS OPPOSED TO LAW AND AGAINST THE PRINCIPL ES OF NATURAL JUSTICE AND ACCORDINGLY THE ORDER IS LIABLE TO BE Q UASHED. ITA NO. 2795/BANG/2018 PAGE 2 OF 5 2. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIA TED THAT THE HON'BLE TRIBUNAL HAD DIRECTED HIM TO CONSIDER T HE ADMISSIBILITY OF THE ADDITIONAL GROUNDS AND TO DECI DE THE GROUNDS ON MERITS AND IN THE CIRCUMSTANCES THE LEARNED CIT (APPEALS) OUGHT TO HAVE GONE INTO THE ADMISSIBILITY OF THE AD DITIONAL GROUNDS DE HORS THE ASSESSMENT AS MADE BY THE AO AN D OUGHT TO HAVE FURTHER CONSIDER THE SAME ON MERITS TO ALLOW T HE CLAIM OF THE APPELLANT. 3. THE LEARNED CIT (APPEALS) OUGHT TO HAVE CONSIDER ED THE CLAIM OF THE APPELLANT FOR WHICH MATERIALS WERE BRO UGHT ON RECORD AND THE CLAIM WAS FULLY SUPPORTED AND THE RE QUIRED DETAILS HAVE ALREADY BEEN FURNISHED TO THE APPELLATE AUTHOR ITY AND FURTHER ON ACCOUNT OF THE JUDGMENT OF THE HON'BLE SUPREME C OURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD VS. CIT (199 8) 229 ITR 383 (SC), THE ADDITIONAL GROUNDS OUGHT TO HAVE BEEN ALLOWED AND THE RELIEF AS CLAIMED BY THE APPELLANT OUGHT TO HAV E BEEN GIVEN. 4. WITHOUT PREJUDICE, THE LEARNED CIT (APPEALS) OUG HT TO HAVE APPRECIATED THAT THE CLAIM FOR DEDUCTION OF ES I AND PF PAYMENTS WERE MADE BEFORE THE AO AND THE DISALLOWAN CE WAS ALREADY CHALLENGED IN APPEAL BEFORE THE CIT (APPEAL S) AND THROUGH THE ADDITIONAL GROUNDS THERE WAS ONLY INCRE ASE IN QUANTUM OF RELIEF SOUGHT FOR AND THERE WAS NO NEW G ROUND WHICH WAS NOT CANVASSED BEFORE THE AO WAS RAISED BY THE A PPELLANT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE SUBMISSIO NS MADE WITH EVIDENCE, THE LEARNED CIT (APPEALS) OUGHT TO H AVE ADMITTED THE ADDITIONAL GROUNDS AND ALSO ALLOWED THE DEDUCTI ON TOWARDS PAYMENT OF ESI/PF WITHIN THE DUE DATE FOR FILING TH E RETURN AND OUGHT TO HAVE CONSIDERED IN FULL AND ALLOWED THE SA ME. 6. WITHOUT PREJUDICE, THE DISALLOWANCE AS CONFIRMED BY THE LEARNED CIT (APPEALS) IS EXCESSIVE, UNREASONABLE AN D OUGHT TO BE DELETED IN FULL. 7. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEA L MAY BE ALLOWED. ITA NO. 2795/BANG/2018 PAGE 3 OF 5 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E CAME UP IN APPEAL BEFORE THIS TRIBUNAL ON EARLIER OCCASION WHEREIN TH E ASSESSEE RAISED ADDITIONAL GROUNDS IN RESPECT OF DEDUCTION TOWARDS EMPLOYEES CONTRIBUTION TO PF & ESI. THIS APPEAL WAS HEARD EX PARTE BY THE TRIBUNAL AND RESTORED THE ISSUE OF ADMISSIBILITY OF ADDITIONAL GROUNDS TO THE FILE OF CIT(APPEALS) FOR FRESH DECISION AND IF THE SAME IS ADMITTED, TO DECI DE IT ON MERITS AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE. CONSEQUENTL Y, THE CIT(APPEALS) TOOK UP THE CASE IN THE SECOND ROUND AND NOT ADMITT ED THE ADDITIONAL GROUND AND DISMISSED THE ADDITIONAL GROUND AS UNADM ITTED. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE ME. 4. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE A DDITIONAL GROUND RAISED BY THE ASSESSEE BEFORE THE CIT(APPEALS) ON T HE EARLIER OCCASION IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER AND THE SAME SHOULD HAVE BEEN ADMITTED BY THE CIT(APPEALS) IN VI EW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. V. CIT, 229 ITR 283 (SC) WHEREIN IT HAS BEEN HELD THAT THE IF QUESTION OF LA W OR GROUNDS ARE LEGAL IN NATURE, IT CAN BE RAISED AT ANY STAGE OF T HE PROCEEDINGS. SHE SUBMITTED THAT THERE WAS NO NECESSITY OF INVESTIGAT ION OF ANY FRESH FACTS TO DECIDE THE CASE AND THE CIT(APPEALS) TOTALLY MISCAR RIED THE JUSTICE BY NOT ADMITTING THE ADDITIONAL GROUND RAISED BEFORE HIM. 5. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT FIR ST THE ASSESSEE SHOULD CLAIM DEDUCTION UNDER A PROPER SECTION AND T HE CLAIM SHOULD BE SUPPORTED BY SUFFICIENT EVIDENCE SO AS TO ALLOW THE CLAIM OF ASSESSEE. IN THE PRESENT CASE, THE MERE CLAIM OF ASSESSEE FOR BE NEFIT OF DEDUCTION WITHOUT SUFFICIENT EVIDENCE CANNOT BE ALLOWED. ACC ORDING TO THE LD. DR, THE CLAIM OF ASSESSEE WAS DENIED FOR NON-COMPLIANCE OF THE MANDATORY REQUIREMENT OF LAW. HE RELIED ON THE JUDGMENT DATE D 01.03.2011 OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF BAEHAL SOFTWARE LTD. IN ITA NO.136/2011. ITA NO. 2795/BANG/2018 PAGE 4 OF 5 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORD. IN THE PRESENT CASE, THE ASSESSEE HAS RAISED ADDITIONAL GROUND ON EARLIER OCCASION BEFORE THIS TRIBUNAL. THE TRIBUNAL REMANDED THE ISSUE TO THE FILE OF CIT(APPEALS) TO CONSIDER THE ADMISSIBILITY OF ADDITIONAL GROUND. IN THE SECOND ROUND ALSO, THE CIT(APPEALS) HAS NOT ADMITTED THE ADDITIONAL GR OUND HOLDING THAT THERE IS NOTHING ON RECORD TO SHOW HOW THE ASSESSEE WAS P REVENTED BY SUFFICIENT CAUSE FROM RAISING SUCH A CLAIM BEFORE THE AO. IN MY OPINION, AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. (SUPRA) AND JUTE CORPORATION OF INDIA LTD., 187 ITR 688 (SC) , THE APPELLATE AUTHORITY HAS THE POWER WHICH THE ORIGINAL AUTHORITY MAY HAVE IN DECI DING THE QUESTION BEFORE IT, SUBJECT TO THE RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY THE STATUTORY PROVISION. SO IN THE ABSENCE OF ANY STATUTORY PROV ISION, THE APPELLATE AUTHORITIES ARE VESTED WITH ALL THE PLENARY POWERS WHICH AN ORIGINAL AUTHORITY MAY HAVE IN THE MATTER. 7. FURTHER, IN THE PRESENT CASE, THE ASSESSEE PLACE D THE NECESSARY EVIDENCE BEFORE THE CIT(APPEALS) REGARDING PAYMENT OF EMPLOYEES CONTRIBUTION TO PF & ESI BEFORE THE DUE DATE OF FIL ING THE RETURN AND THIS EVIDENCE SHOULD BE ADMITTED AS ADDITIONAL EVIDENCE BY THE CIT(APPEALS) SO AS TO RENDER JUSTICE. HOWEVER, HE FAILED TO ADMIT THE ADDITIONAL GROUND ON TECHNICAL REASONS WHICH IS NOT PROPER. ACCORDINGLY , IN THE INTEREST OF JUSTICE, I ADMIT THE ADDITIONAL GROUND RAISED BY TH E ASSESSEE AND DIRECT THE AO TO EXAMINE THE ADDITIONAL EVIDENCE IN ACCORDANCE WITH LAW. IF PF & ESI ARE PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME, THE ASSESSEE IS ENTITLED TO THE DEDUCTION. WITH THIS OBSERVATION, I REMAND THE ISSUE OF ALLOWABILITY OF EMPLOYEES CONTRIBUTION OF ESI & PF TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION. ITA NO. 2795/BANG/2018 PAGE 5 OF 5 8. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF SEPTEMBER, 2020. SD/- ( CHANDRA POOJARI ) ACCOUNTANT MEMBER BANGALORE, DATED, THE 10 TH SEPTEMBER, 2020. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.