M/s. Plastograph India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 3052/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7167 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 02-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 18-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R B MEENA
• Assessee Lawyers: SANJEEV BINDAL CAS
• Keywords: Opportunity of being heard; Question of law; Tax effect
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 3052/DEL/2012 : ASSTT. YEAR : 2003 - 04 M/S PLASTOGRAPH INDIA PVT. LTD., 23/5 , SHAKTI NAGAR, DELHI - 110007 VS DCIT, CENTRAL CIRCLE - 25, NEW DELHI (APPELLANT) (RESPONDENT) IT A NO. 3557/DEL/2012 : ASSTT. YEAR : 2003 - 04 ACIT, CENTRAL CIRCLE - 5, NEW DELHI VS M/S PLAS TOGRAPH INDIA PVT. LTD., 23/5, SHAKTI NAGAR, DELHI - 110007 (APPELLANT) (RESPONDENT) PAN NO. AAACP7194F ASSESSEE BY : SH. VINOD KUMAR BINDAL & SANJEEV BINDAL, CAS REVENUE BY : SH. R. B. MEENA, CIT DR DATE OF HEARING : 02 .0 2.201 6 DATE OF PRONOUNCE MENT : 09 .02 .201 6 ORDER PER N. K. SAINI, AM : THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 30.04.2012 OF LD. CIT(A) - XXX I , NEW DELHI . 2. FIRST WE WILL DEAL WITH THE ASSES SEE S APPEAL IN I TA NO. 3052 /DEL/2012. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF DONATION OF RS. 53,000/ - WITHOUT CONSIDERING THE DOCUMENTARY EVIDENCES PLACED ON RE CORD. THUS THE ADDITION MUST BE DELETED. ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 2 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF BONUS OF RS. 69,745/ - PAID AFTER FILING THE RETURN BUT BEFORE THE DUE DATE OF RETURN OF INCOME FOR THE RELEVANT PERIOD. THUS THE ADDI TION MUST BE DELETED. 3. THUS, WITHOUT PREJUDICE TO THE GROUND TAKEN ABOVE, IF THE BONUS PAID RS. 69,745/ - IS NOT ALLOWED DURING THE RELEVANT YEAR THEN MUST BE ALLOWED IN THE NEXT ASSESSMENT YEAR. 4. THE APPELLANT CRAVES THE LEAVE TO ADD, SUBSTITUTE, MOD IFY, DELETE OR AMEND ALL OR ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 3 . THE ASSESSEE HAS ALSO RAISED THE ADDITIONAL GROUNDS WHICH READ AS UNDER: THE ADDITIONS IN THE IMPUGNED ASSESSMENT ORDER PASSED U/S 153A ARE BAD IN LAW AND ON FACTS BECAUSE A) THE ADDITIONS WERE NOT BASED ON ANY BOOKS OF ACCOUNT OR OTHER MATERIAL NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT WHICH COULD ALLEGED TO HAVE BEEN FOUND IN THE COURSE OF SEARCH OR AN UNDISCLOSED INCOME OR PROPERTY DISCOVERED THERE IN. B) AS THE ASSESSMENT PROCEEDINGS WERE NOT ABATED BUT WERE ALREADY COMPLETED. THUS ALL THE ADDITIONS SO MADE IN THE ASSESSMENT ORDER SHOULD BE DELETED FOLLOWING THE SPECIAL BENCH DECISION DATED 6/7/12 IN THE CASE OF ALL CARGO ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 3 GLOBAL LOGISTICS LTD. IN APPE ALS NO. ITA/5018 - 5022/M/10. THE ENCLOSED GROUND OF APPEAL MAY BE ADMITTED AS SECOND ADDITIONAL GROUND IN THE ABOVE SAID APPEAL AS IT IS PURELY A LEGAL GROUND ARISING OUT OF THE CORE ISSUE AS PER THE ASSESSMENT ORDER. SUCH GROUNDS ARE ADMITTED AS ADDITIONA L GROUNDS AS HAS BEEN HELD IN THE CASE OF ASSTT. COMMISSIONER OF INCOME - TAX VS BHAGWATI PRINTERS (P) LTD. (2006) 102 TTJ (DEL) 480 BY HOLDING THAT THIS IS A LEGAL ISSUE NOT INVOLVING ANY FRESH INVESTIGATION INTO FACTS EXCEPT THOSE ALREADY ON RECORD. IN THI S CASE, ALL SUCH FACTS ARE UNDISPUTED AND ON RECORD AND THE ASSESSEE HAS RAISED A LEGAL GROUND BEFORE CIT(A). 4 . THE LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR ADMISSION OF THE ADDITIONAL GROUND BY STATING THAT THESE GROUNDS ARE PURELY LEGAL GROUND AND DOES NOT REQUIRE ANY VERIFICATION, SINCE THE FACTS ARE ALREADY AVAILABLE ON RECORD. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: NATIONAL THERMAL POWER CO. LTD. VS CIT (1998) 229 ITR 383 (SC) DCIT VS TURQUOISE INVESTMENT & FINANCE LTD. (2006) 154 T AXMAN 80 (MP) KANOI INDUSTRIES (P.) LTD. VS DCIT (2006) 100 ITD 462 (KOL.) WEST BENGAL STATE ELECTRICITY BOARD VS DY. CIT (2005) 278 ITR 218 (CAL) UMA POLYMERS (P) LTD. VS DCIT (2006) 101 TTJ (JD) TM 124 ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 4 DATAMATICS LTD.VS ASSTT. CIT (2007) 111 TTJ (MUM - TRI B.) 55 ABHISHEK INDUSTRIES LTD. VS CIT (2007) 290 ITR 655 (P&H) GEDORE TOOLS PVT. LTD. VS CIT (1999) 238 ITR 268 (DEL) DIRECTOR OF INCOME - TAX (EXEMPTION) VS ARUNODYA (2006) 286 ITR 383 (DEL) SATISH KUMAR KESHARI VS ITO (2007) 106 TTJ 980 (ITAT - PAT.) ITO V S GURINDER KAUR (2006) 102 ITD 189 (ITAT - DEL) CIT VS J.K. COTTON SPINNING & WEAVING MILLS CO. LTD. (2005) 197 CTR 73 (ALL.) DY. CIT VS MARUTI UDYOG LTD. (2006) 99 ITD 666 (DEL - TRIB) CIT VS ASHOK LEYLAND LTD. (2001) 250 ITR 452 (MAD.) ORISSA CEMENT LTD. VS CIT (2001) 117 TAXMAN 625/250 ITR 856 (DEL) EICHER MOTORS LTD. VS DY. CIT (2004) 82 TTJ (IND.) 61 5 . THE LD. DR OBJECTED FOR ADMISSION OF THE ADDITIONAL GROUNDS. 6 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PAR T I ES AND THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE ASSESSEE HAS RAISED PURELY LEGAL GROUNDS, WHICH DO NOT REQUIRE ANY FRESH INVESTIGATION, SO THESE ARE ADMITTED BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON BLE SUPREME ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 5 COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS CIT (19 98) 229 ITR 383 (SC) WHEREIN IT HAS BEEN HELD AS UNDER: UNDER SECTION 254 OF THE INCOME - TAX ACT, 1961 THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AND OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. THE P OWER OF THE TRIBUNAL IN DEALING WITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE THE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX LIABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXA MPLE, AS A RESULT OF A JUDICIAL DECISION GIVEN WHILE THE APPEAL IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON - TAXABLE ITEM IS TAXED OR PERMISSIBLE DEDUCTION IS DENIED, THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUEST ION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM. UNDOUBTEDLY, THE TRIBUNAL HAS THE DISCRETION TO ALLOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIBUNAL IS ONLY REQUIRED TO CON SIDER THE QUESTION OF LAW ARISING FROM FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THERE IS NO REASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LI ABILITY OF AN ASSESSEE. 7 . AT THE FIRST INSTANT, THE LD. COUNSEL FOR THE ASSESSEE ARGUED THE ADDITIONAL GROUND S AND SUBMITTED THAT AS PER THE PROVISIONS CONTAINED U/S 153 A (1)(B) OF THE INCOME TAX ACT, ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 6 1961 (HEREINAFTER REFERRED TO AS THE ACT), THE ASSESS MENT IS REQUIRED TO BE FRAMED FOR THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH WAS CONDUCTED OR REQUISITION WAS MADE. IT WAS FURTHER SUBMITTED THAT THE SEARCH IN THIS CASE TOOK PLACE ON 31 .07.2008, THEREFORE, THE ASSESSMENT S WERE REQUIRED TO BE FRAMED FOR THE SIX ASSESSMENT YEARS STARTING WITH ASSESSMENT YEAR 2004 - 05. HOWEVER, THE PRESENT ASSESSMENT YEAR IS 2003 - 04 WHICH IS OUTSIDE THE PURVIEW OF THE PROVISIONS CONTAINED IN THE AFORESAID RE FERRED TO SECTION. 8 . IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFUL LY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE SEARCH U/S 132 OF THE ACT TOOK PLACE ON 31.07.2008 AND AS PER PROVISIONS CONTAINED IN SECTION 153 A (1)(B) OF THE ACT, T HE ASSESSMENT WAS TO BE FRAMED FOR THE SIX ASSESSMENT YEARS I.E. THE ASSESSMENT YEAR 2004 - 05 TO ASSESSMENT YEAR 2009 - 10. HOWEVER, THE AO FRAMED THE ASSESSMENT FOR THE ITA NO S. 3557 & 3052 /DE L/2012 PLASTOGRAPH INDIA PVT. LTD. 7 ASSESSMENT YEAR 2003 - 04 ALSO WHICH WAS OUTSIDE, THE PURVIEW OF THE PROVISIONS CONTAINED IN THE AFORESAID REFERRED TO SEC TION 153A(1)(B) OF THE ACT. THEREFORE, THE ASSESSMENT ORDER PASSED FOR THE ASSESSMENT YEAR 2003 - 04 IS HELD INVALID. 10. SINCE WE HAVE HELD THE ASSESSMENT ITSELF AS INVALID, THEREFORE, WE DO NOT SEE ANY MERIT IN THE APPEAL OF THE DEPARTMENT. MOREOVER, THE TAX EFFECT INVOLVED IN THE DEPARTMENTAL APPEAL IS LESS THAN RS. 10,00,000/ - , THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL AS PER THE CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 ISSUED BY THE CBDT. ACCORDINGLY, THE APPEAL OF THE DEPARTMENT IS DI SMISSED. 11 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED ON THE LEGAL ISSUE AND THE APPEAL OF THE DEPARTMENT IS DISMISSED. ( ORDER PRON OUNCED IN THE COURT ON 09 /02 / 2016 ) SD / - SD/ - ( SUDHANSHU SRIVASTAVA ) ( N. K. SA INI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09 /02 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR