DCIT, New Delhi V. M/s. YFC Projects Pvt. Ltd., New Delhi

ITA 3082/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86620 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 18-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 18-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HIREN MEHTA SANJEEV KWATRA
• Assessee Lawyers: J P CHANDRAKAR
• Keywords: Depreciation; Additional depreciation; Additional evidence; Question of law; Onus to prove
• Section: 32

Judgement Text

ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES H NEW DELHI BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 3082/DEL/2010 ASSTT.YEAR: 2007-08 ITA NO. 3527/DEL/2011 ASSTT.YEAR: 2006-07 ITA NO. 3602/DEL/2011 ASSTT.YEAR: 2008-09 DCIT, VS YFC PROJECTS PVT. LTD, CIRCLE 18(1), B-28, SHIVALIK, MALVIYA NA GAR, C.R. BUILDING, NEW DELHI. ROOM NO. 211A, (PAN: AAACF1998B) NEW DELHI. ITA NO. 4672/DEL/2007 ASSTT.YEAR: 2004-05 YFC PROJECTS PVT. LTD, VS DCIT, CIRCLE 18(1 ), NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI HIREN MEHTA, SANJEEV KWATRA , CA RESPONDENT BY: SHRI J.P. CHANDRAKAR, SR. DR O R D E R PER CHANDRAMOHAN GARG, J.M. THESE APPEALS HAVE BEEN FILED AGAINST THE ORDER OF THE CIT(A)-XXI, NEW DELHI DATED 24.9.07 IN APPEAL NO. 132/2006-07 FOR A Y 2004-05; DATED 9.5.2011 IN APPEAL NO. 161/08-09 FOR AY 2006-07; DA TED 11.3.2010 IN APPEAL ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 2 NO. 81/09-10 FOR AY 2007-08; DATED 16.5.2011 N APPE AL NO. 194/10-11 FOR AY 2008-09 RESPECTIVELY. 2. BRIEFLY STATED THE FACTS GIVING RISE TO THESE AP PEALS ARE THAT INITIALLY ITA NO. 4672/DEL/2007 FOR AY 2004-05 WAS FILED BY THE A SSESSEE AND THE SAME WAS ALLOWED BY THE TRIBUNAL ORDER DATED 24.09.2007. WH ILE ALLOWING THE ASSESSEES APPEAL FOR AY 2004-05, ITAT ACCEPTED THE PLEA OF TH E ASSESSEE THAT THE ISSUE INVOLVED PERTAINS TO CLAIM OF ADDITIONAL DEPRECIATI ON U/S 32 OF THE INCOME TAX ACT, 1961 AND WAS CLAIMED ON THE PLEA THAT THE ITEM READY MIX CONCRETE (RMC) BEING PRODUCED BY THE ASSESSEE AMOUNTED TO MA NUFACTURE OF ARTICLE OR A THING. AGAINST THE SAID ORDER OF THE TRIBUNAL DATE D 24.09.2007, THE REVENUE PREFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT O F DELHI VIZ. ITA 508/2011 IN RESPECT OF AY 2004-05 AND THE MATTER HAS BEEN RE STORED BACK TO THE TRIBUNAL FOR LIMITED EXAMINATION TO ASCERTAIN WHETHER THE RM C MANUFACTURED BY THE ASSESSEE WAS SOLD TO OUTSIDE PARTIES OR CONSUMED IN HOUSE. THE OPERATIVE PART OF THE OBSERVATIONS AND CONCLUSION OF HONBLE DELHI HIGH COURT IN ITA 508/2011 (SUPRA) READS THUS:- LEARNED TRIBUNAL AS IS APPARENT FROM THE PARAGRAP H 7 OF THE IMPUGNED ORDER DATED 15 TH JANUARY, 2010, QUOTED ABOVE, HAS NOT EXAMINED AND GONE INTO THE QUESTION WHETHER RMC WAS UTILIZED BY THE RESPON DENT ASSESSEE FOR ITS OWN CONSTRUCTION ACTIVITIES FOR CAPTIVE USE OR THE RMC WAS SOLD TO THIRD PARTIES. THE ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 3 SAID ASPECT IS RELEVANT AND MATERIAL TO DECIDE THE CONTROVERSY IN QUESTION, IN THE LIGHT OF THE JUDGMENT OF THE SUPREME COURT IN NC BU DHARAJA (SUPRA). 10. LD. COUNSEL FOR THE PARTIES ADMIT AND ACCEPT T HAT IN CASE RMC WAS USED FOR CONSTRUCTION ACTIVITIES W HICH WERE UNDERTAKEN BY THE RESPONDENT ASSESSEE, THE CLAIM FO R ADDITIONAL DEPRECIATION CANNOT BE ALLOWED BUT IN CA SE RMC WAS SOLD TO THIRD PARTIES AS A COMMODITY, THEN THE RESPONDENT ASSESSEE IS ENTITLED TO ADDITIONAL DEPRECIATION U/S 32(1)9IIA) OF THE ACT. LEARNED COUNSEL FOR THE PARTIES ALSO AGR EE THAT THE SAID ASPECT HAS NOT BEEN EXAMINED BY THE TRIBUNAL I N THEIR ORDER DATED 15 TH JANUARY, 2010. 11. IN THE LIGHT OF THE AFORESAID DISCUSSION THAT Q UESTION IS ANSWERED IN FAVOUR OF TIE REVENUE TO THE EXTENT THAT THE TRIBUNAL HAS NOT DEALT WITH AND EXAMINED THE QUESTI ON WHETHER OR NOT THE RMC WAS SOLD BY THE ASSESSEE TO THIRD PA RTY BUYERS OR WAS USED BY THE ASSESSEE THEMSELVES AT THEIR CO NSTRUCTION SITES. WITHOUT DECIDING THIS PRIMARY ISSUE/ASPECT T HE TRIBUNAL COULD NOT HAVE DECIDED THE CONTROVERSY AND THE ISSU E RAISED. ACCORDINGLY, THE IMPUGNED FINDINGS IN PARA 7 ARE SE T ASIDE WITH THE DIRECTION TO THE TRIBUNAL TO RE-EXAMINE TH E MATTER ON MERITS AFTER DECIDING THE QUESTION WHETHER THE RMC WAS SOLD TO THIRD PARTIES, OR WAS CAPTIVELY USED/UTILIZED. THE RESPONDENT ASSESSEE WILL BE ENTITLED TO ADDITIONAL DEPRECIATIO N ON THE MACHINERY/EQUIPMENT USED FOR THE SAID ACTIVITIES/PU RPOSE ONLY IF THE RMC WAS PARTLY SOLD TO PARTLY SELF UTILIZED AND THE EFFECT THEREOF ON THE QUESTION OF ADDITIONAL DEPRECIATION WILL BE ALSO EXAMINED BY THE TRIBUNAL. 3. WE ALSO RESPECTFULLY NOTE THAT THE HONBLE HIGH COURT OF DELHI IN REVENUES APPEAL IN ITA NO. 901/2011 FOR AY 2007-08 ORDER DATED 24.10.2011 ALSO DIRECTED THAT THE DECISION IN ITA NO. 508/2011 (SUPRA) WILL EQUALLY APPLY TO THE PRESENT APPEAL AND QUESTION OF LAW WAS ACCORDIN GLY ANSWERED PARTLY IN FAVOUR OF THE REVENUE AND AGAINST THE RESPONDENT AS SESSEE BY REMITTING THE ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 4 MATTER TO THE TRIBUNAL FOR FRESH DECISION ACCORDING TO THE DIRECTIONS GIVEN IN PARA 9 TO 11 IN ITA NO. 508/2011 (SUPRA) AS REPRODU CED HEREINABOVE. 4. IT IS ALSO RELEVANT TO NOTE THAT THE APPEAL OF T HE REVENUE FOR AY 2006-07 ON THE SAME ISSUE VIZ. ITA 3527/D/2011 WAS DISMISSE D BY THE TRIBUNAL BY FOLLOWING THE DECISION OF THE TRIBUNAL IN ITA NO. 4 672/D/2007 DATED 15.1.2010 FOR AY 2004-05. SUBSEQUENTLY, THE MISCELLANEOUS AP PLICATION (MA NO. 56/D/2012) FILED BY THE REVENUE WAS ALLOWED BY THE TRIBUNAL BY ORDER DATED 20.7.2012 WHEREIN RESPECTFULLY TAKING COGNIZANCE OF DECISION OF HONBLE HIGH COURT OF DELHI FOR AY 2004-05 DATED 24.10.2011(SUPR A), THE TRIBUNAL RECALLED ITS ORDER DATED 20.7.2012 FOR AY 2006-07 (SUPRA) AN D DIRECTED THE REGISTRY TO FIX THE CASE FOR HEARING IN DUE COURSE. 5. IT IS FURTHER RELEVANT TO NOTE THAT IN REVENUES APPEAL FOR AY 2008-09 ON THE SAME ISSUE, ITA NO. 3602/D/11 WAS ALLOWED FOR S TATISTICAL PURPOSES REMITTING BACK THE ISSUE TO THE FILE OF AO WITH A D IRECTION THAT THE AO SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW IN THE LIGH T OF DIRECTIONS GIVEN BY THE TRIBUNAL IN ITS EARLIER ORDER FOR AY 2004-05 AND AY 2006-07. SUBSEQUENTLY, THE REVENUE PREFERRED MA NO. 290/D/2012 IN ITA NO. 3602/D/2011 PRAYING FOR RECALL OF ORDER DATED 26.9.2011 FOR AY 2008-09 WHIC H WAS ALLOWED BY THE TRIBUNAL BY ORDER DATED 03.01.14 RECALLING ITS ORDE R DATED 21.11.2011 FOR AY 2008-09 (SUPRA) AND DIRECTED THE REGISTRY TO FIX TH E APPEAL FOR FRESH HEARING IN TERMS OF DIRECTIONS OF HONBLE HIGH COURT OF DELHI IN ITA NO. 508/2011 FOR ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 5 AY 2004-05 (SUPRA). HENCE THE REVENUES APPEAL FOR AY 2006-07 IN ITA NO. 3527/DEL/2011 AND ITA NO.3602/D/2011 FOR AY 2008-09 ARE ALSO CLUBBED TOGETHER WITH THE ASSESSEES APPEAL IN ITA NO. 4672 /DEL/2007 FOR AY 2004-05 AND REVENUES APPEAL IN ITA NO. 3082/D/2010 FOR AY 2007-08. FINALLY, IN THE BACKGROUND AS STATED ABOVE, WE ARE ADJUDICATING THE ABOVE CAPTIONED FOUR APPEALS IN THE LIGHT OF ORDER OF HONBLE HIGH COURT OF DELHI FOR AY 2004-05 AND 2006-07 BOTH DATED 24.10.2011 (SUPRA). APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE OF THE ASSESSEE 6. THE ASSESSEE, IN ALL FOUR APPEALS, HAS FILED SEP ARATE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE VIZ. AUDITED BALAN CE SHEET, COPIES OF AUDITED BALANCE SHEETS, COPIES OF PARTY WISE SALES, SUMMARY OF MONTH WISE SALES AND DETAILS OF MONTH WISE SALES FOR THE RELEVANT PERIOD /FINANCIAL YEARS FOR ALL ASSESSMENT YEARS UNDER CONSIDERATION. 7. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD, INTER ALIA ADDI TIONAL EVIDENCE SOUGHT TO BE SUBMITTED BY THE ASSESSEE FOR THE RELEVANT PERIOD U NDER CONSIDERATION. THE LD. AR HAS DRAWN OUR ATTENTION TOWARDS PARA NO. 10 AND 11 OF THE ORDER OF THE HONBLE HIGH COURT OF DELHI IN ITA 508/2011 DATED 2 4.10.2011(SUPRA) AND SUBMITTED THAT THE HONBLE HIGH COURT WAS PLEASED I N HOLDING THAT THE ORDER IN ITA 508/2011 FOR AY 2004-05 (SUPRA) WILL EQUALLY AP PLY TO THE ITA NO. 901/2011 PERTAINING TO AY 2007-08 AND IN VIEW OF AB OVE REFERRED ORDER OF ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 6 HONBLE HIGH COURT, IT NEEDS TO BE ASCERTAINED WHET HER THE RMC MANUFACTURED BY THE ASSESSEE WAS CONSUMED IN HOUSE OR SOLD TO OU TSIDE THIRD PARTIES. LD. AR PRESSING APPLICATION FOR ADMISSION OF ADDITIONAL EV IDENCE FURTHER SUBMITTED THAT IN ORDER TO ESTABLISH THE FACT THAT THE ENTIRE RMC MANUFACTURED BY THE ASSESSEE WAS SOLD TO OUTSIDE PARTIES, CERTAIN ADDITIONAL EVI DENCE NEEDS TO BE BROUGHT ON RECORD FOR PROPER ADJUDICATION OF THE ISSUE AS PER DIRECTIONS OF THE HONBLE HIGH COURT. 8. LD. DR REPLIED THAT THE ASSESSEE GOT AMPLE OPPOR TUNITY BEFORE THE AO, DURING FIRST APPELLATE PROCEEDINGS BEFORE THE CIT(A ) AND BEFORE THE TRIBUNAL DURING FIRST ROUND OF SECOND APPELLATE PROCEEDINGS BUT THE ASSESSEE DID NOT FILE ANY EVIDENCE IN THE FORM OF COPIES OF THE AUDITED B ALANCE SHEET, COPIES OF THE PARTY WISE SALES, DETAILS, SUMMARY AND DETAILS OF M ONTH WISE SALES, THEREFORE, THE SAME CANNOT BE ADMITTED. LD. DR PLACING RELIANCE O N THE DECISION OF HONBLE HIGH COURT OF RAJASTHAN IN THE CASE OF CIT VS JAIPU R UDYOG LTD. (1997) 227 ITR 345 (RAJ) SUBMITTED THAT WHEN THE TRIBUNAL HAVE DECIDED THE QUESTION ON MERIT, IT WAS NO LONGER OPEN TO IT TO REMIT THE CASE TO ITO TO TAKE FRESH EVIDENCE AND TO RECONSIDER THE MATTER, MORE SO, WHE N IT WAS NOT SHOWN THAT THE ASSESSEE WAS NOT GRANTED SUFFICIENT OPPORTUNITY TO ADDUCE EVIDENCE. 9. LD. AR SUBMITTED REJOINDER TO THE ABOVE SUBMISSI ONS AND CONTENTIONS OF THE LD. DR AND STATED THAT THE FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE AS IN THAT CASE, ITAT, JAIP UR BENCH PERMITTED THE ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 7 ASSESSEE TO PRODUCE FURTHER EVIDENCE AND SENT BACK THE CASE TO ITO FOR EXAMINATION OF ADDITIONAL EVIDENCE BUT IN THE PRESE NT CASE, THE TRIBUNAL WAS DIRECTED BY HONBLE HIGH COURT OF DELHI TO ADJUDICA TE THE ISSUE AFRESH AND TO RE- EXAMINE THE MATTER ON MERITS AFTER DECIDING THE QUE STION WHETHER THE RMC WAS SOLD TO THIRD PARTIES OR WAS USED/UTILIZED IN HOUSE . LD. AR FURTHER SUBMITTED THAT IN ORDER TO ESTABLISH THE FACT THAT THE ENTIRE RMC MANUFACTURED BY THE ASSESEE WAS SOLD TO OUTSIDE PARTIES, CERTAIN ADDITI ONAL EVIDENCE NEEDS TO BE BROUGHT ON RECORD, THEREFORE, THE DETAILS OF PARTY WISE SALES, DETAILS OF MONTH WISE SALES, DETAILS OF PARTY WISE LEDGER FOR THE RE LEVANT PERIOD RELATED TO ALL FOUR ASSESSMENT YEARS UNDER CONSIDERATION MAY BE ADMITTE D. LD. AR FURTHER CONTENDED THAT FOR CLAIMING ADDITIONAL DEPRECIATION , IT IS INCUMBENT UPON THE ASSESSEE TO PROVE BEYOND ANY DOUBT THAT THE ENTIRE SALES OF RMC MANUFACTURED BY THE ASSESSEE WAS SOLD TO OUTSIDE THIRD PARTIES, THEREFORE, ABOVE REFERRED ADDITIONAL EVIDENCE IS NECESSARY AND CRUCIAL FOR PR OPER ADJUDICATION OF THE ISSUE, THEREFORE, THE SAME MAY BE TAKEN AND ADMITTED ON RE CORD TO EXAMINE THE ISSUE IN THE LIGHT OF DIRECTIONS OF HONBLE DELHI HIGH COURT . LD. AR ALSO SUBMITTED THAT PRIOR TO THE ORDERS OF THE HONBLE DELHI HIGH COURT , THERE WAS NEITHER ANY OCCASION NOR ANY OPPORTUNITY FOR THE ASSESSEE TO BR ING THE SAID EVIDENCE ON RECORD BECAUSE THE HONBLE HIGH COURT HAS HELD THAT THE SAID ASPECT IS RELEVANT AND MATERIAL TO DECIDE THE CONTROVERSY IN QUESTION IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF N.C. BUDDHIRAJ A & CO. 204 ITR ITR 412 (SC). ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 8 10. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS O F BOTH THE PARTIES AND VIGILANT PERUSAL OF THE ORDERS OF HONBLE DELHI HIG H COURT IN ITA NO.508/2011 AND 901/2011 (SUPRA) BOTH DATED 24.10.2011, WE RESP ECTFULLY NOTE THAT HONBLE HIGH COURT HAS HELD THAT THE ISSUE OF ALLOWABILITY OF ADDITIONAL DEPRECIATION U/S 32(1)(IIA) OF THE ACT REQUIRED RE-EXAMINATION IN TH E LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA). NOW WE ARE PROCEEDING TO RE-EXAMINE AND ADJUDICATE THE ISSUE AS PER DIRECTIO NS OF THE HONBLE HIGH COURT OF DELHI. LD. AR PRESSING THE ADDITIONAL EVIDENCE HAS VEHEMENTLY CONTENDED THAT THE ADDITIONAL EVIDENCE SOUGHT TO BE ADMITTED IS CONSIDERED NECESSARY AND VITAL TO EXAMINE THE ISSUE IN THE LIGHT OF DIRECTIO NS OF HONBLE HIGH COURT OF DELHI SPECIALLY KEEPING IN VIEW THE FACT THAT PRIOR TO THE HIGH COURT ORDER, THERE WAS NEITHER ANY OCCASION NOR ANY OPPORTUNITY FOR TH E ASSESSEE TO BRING THE SAID EVIDENCE ON RECORD. LD. AR HAS ALSO CONTENDED THAT THE CIT(A) CONSIDERED THE RATIO OF THE DECISIONS OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA) BUT DURING THE EARLIER ROUND OF PROCEEDINGS BEFORE THE AO, CIT(A) AND THE TRIBUNAL, THE ASSESSEE WAS NOT ASKED TO SUBMIT DETAILS TO ELABORATE AS TO WHETHER THE RMC MANUFACTURED BY THE ASSESSEE WAS CO NSUMED IN HOUSE OR SOLD TO OUTSIDE THIRD PARTIES. LD. AR HAS ALSO SUBMITTE D THAT IN VIEW OF DIRECTIONS OF THE HONBLE HIGH COURT OF DELHI DATED 24.10.2011 (S UPRA), IT IS INCUMBENT UPON THE ASSESSEE TO PROVE BEYOND ANY DOUBT THAT THE RMC MANUFACTURED BY THE ASSESSEE WAS SOLD TO OUTSIDE PARTIES DURING THE REL EVANT PERIOD PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 9 11. HOWEVER, LD. DR HAS OBJECTED TO THE ADMISSIBILI TY OF ADDITIONAL EVIDENCE BY REFERRING THE DECISION OF HONBLE HIGH COURT OF RAJASTHAN IN THE CASE OF CIT VS JAIPUR UDYOG LTD. BUT THE PECULIAR FACTS AND CIR CUMSTANCES OF THE PRESENT CASE ARE DISTINGUISHABLE AS IN THE PRESENT APPEALS FOR AY 2004-05 AND 2007-08, THE MATTER HAS BEEN REMITTED BACK TO THE TRIBUNAL F OR RE-EXAMINATION BY HONBLE JURISDICTIONAL HIGH COURT OF DELHI AND THE APPEALS OF AY 2006-07 AND AY 2008-09 HAVE BEEN RECALLED AND FIXED FOR FRESH HEAR ING ALONG WITH THE APPEALS OF AY 2004-05 AND 2007-08. AS PER DIRECTIONS OF TH E HONBLE HIGH COURT OF DELHI AS REPRODUCED HEREINABOVE, THE TRIBUNAL HAS T O DECIDE THE CONTROVERSY OF ALLOWABILITY OF ADDITIONAL DEPRECIATION U/.S 32(1)( IIA) OF THE ACT IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA). THUS, THE ASSESSEE IS DUTY BOUND TO PROVE HIS CLAIM IN TH E LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF N.C. BUDDHIRAJA AND TO PROVE THAT THE RMC MANUFACTURED BY THE ASSESSEE DURING RELEVANT PERIOD IN ALL FOUR ASSESSMENT YEARS UNDER CONSIDERATION WAS SOLD TO OUTSIDE THIRD PARTI ES, THEREFORE, WE RESPECTFULLY HOLD THAT THE BENEFIT OF THE DECISION OF HONBLE HI GH COURT OF RAJASTHAN IN THE CASE OF CIT VS JAIPUR UDYOG LTD. (SUPRA) IS NOT AVA ILABLE FOR THE ASSESSEE AS IN THE PRESENT CASE, THE TRIBUNAL HAS TO DECIDE THE IS SUE OF ALLOWABILITY OF ADDITIONAL DEPRECIATION IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA) AND AT THE SAME TIM E ASSESSEE HAS TO PROVE ITS CLAIM FOR ADDITIONAL DEPRECIATION IN THE SAME LINE. WE ARE ALSO INCLINED TO RECORD OUR SATISFACTION FOR ADMISSIBILITY OF ADDITI ONAL EVIDENCE THAT THE ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 10 ADDITIONAL EVIDENCE SOUGHT TO BE ADMITTED BY THE AS SESSEE IS VITAL, NECESSARY AND RELEVANT FOR RE-EXAMINATION OF THE CONTROVERSY OF A LLOWABILITY OF ADDITIONAL DEPRECIATION AND THERE WAS NEITHER ANY OCCASION NOR ANY OPPORTUNITY TO BRING THE SAID EVIDENCE ON RECORD FOR THE ASSESSEE DURING THE FIRST ROUND OF PROCEEDINGS, THEREFORE, ADDITIONAL EVIDENCE SUBMITTED BY THE ASS ESSEE IN ALL FOUR APPEALS AS ADMITTED FOR PROPER AND JUST ADJUDICATION OF THE IS SUE/CONTROVERSY IN THE LIGHT OF ORDERS OF THE HONBLE HIGH COURT OF DELHI IN ITA N O. 508/2011 AND 901/2011 BOTH DATED 24.10.2011 (SUPRA). ACCORDINGLY, ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE IN ALL FOUR YEARS IS ADMITTED FOR CONSIDER ATION. 12. NOW, WE PROCEED TO DECIDE THE ISSUE/CONTROVERSY OF ADDITIONAL EVIDENCE AS PER DIRECTIONS OF THE HONBLE HIGH COURT OF DELH I IN THE CASE OF ITA 508/2011 AND 901/2011. LD. AR DRAWING OUR ATTENTION TOWARDS PARA 10 OF THE ORDER OF THE HONBLE HIGH COURT IN ITA 508/2011 SUB MITTED THAT IN CASE RMC MANUFACTURED BY THE ASSESSEE WAS USED FOR CONSTRUCT ION ACTIVITIES WHICH WERE UNDERTAKEN BY THE ASSESSEE, THEN THE CLAIM FOR ADDI TIONAL DEPRECIATION CANNOT BE ALLOWED BUT IN CASE RMC WAS SOLD TO THIRD PARTY AS A COMMODITY, THEN THE ASSESSEE IS ENTITLED TO ADDITIONAL DEPRECIATION U/S 32(1)(IIA) OF THE ACT. LD. AR FURTHER SUBMITTED THAT IN THE LIGHT OF ADDITIONAL E VIDENCE SUBMITTED BY THE ASSESSEE FOR ALL FOUR ASSESSMENT YEARS, IT IS AMPLY CLEAR THAT THE ENTIRE RMC MANUFACTURED BY THE ASSESSEE WAS SOLD TO THIRD PART IES AND NO PART OF RMC MANUFACTURED BY THE ASSESSEE WAS USED BY THE ASSESS EE IN HOUSE AND THE EFFECT ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 11 OF THIS FACTUM IS THAT THE ASSESSEE IS ENTITLED FOR ADDITIONAL DEPRECIATION U/S 32(1)(IIA) OF THE ACT. 13. LD. DR AGREED TO THE PROPOSITION THAT IF THE EN TIRE RMC MANUFACTURED BY THE ASSESSEE IS SOLD TO THE THIRD PARTIES OUTSIDE A ND NO PART OF RMC MANUFACTURED BY THE ASSESSEE HAD BEEN UTILIZED BY T HE ASSESSEE IN HOUSE, THEN THE ASSESSEE IS ENTITLED TO ADDITIONAL DEPRECIATION US/ 32(1)(IIA) OF THE ACT. HOWEVER, LD. DR VEHEMENTLY CONTENDED THAT THE AO HA D NO OPPORTUNITY TO EXAMINE AUDITED BALANCE SHEET OF THE ASSESSEE, LEDG ER ACCOUNT OF RMC SALES, SUMMARY AND MONTH WISE DETAILS OF RMC SALES AND DET AILS OF PARTY WISE LEDGERS FOR THE RELEVANT PERIOD UNDER CONSIDERATION PERTAIN ING TO ALL FOUR ASSESSMENT YEARS. THEREFORE, IT WOULD NOT BE JUST AND PROPER TO CONSIDER AND ADJUDICATE THE ISSUE WITHOUT AFFORDING DUE OPPORTUNITY TO THE AO F OR EXAMINING THE EVIDENCE SUBMITTED BY THE ASSESSEE TO SUPPORT ITS CLAIM IN T HE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA). LD. DR FURTHER SUBMITTED THAT IF IT IS FOUND JUST AND PROPER TO CONSIDER THE ADDITIONAL EVIDENCE FOR THE PURPOSE OF ALLOWABILITY OF ADDITIONAL DEPRECIATION TO THE ASSESSEE U/S 32(1)(IIA) OF THE ACT, THEN DEPARTMENT HAS NO OBJECTION IF THE AO IS GIVEN DUE OPPORTUNITY TO VERIFY AND EXAMINE THE ADDITIONAL EVIDENCE FOR A LLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ADDITIONAL DEPRECIATION. 14. IN VIEW OF ABOVE SUBMISSIONS OF BOTH THE SIDES AND ORDER OF HONBLE HIGH COURT OF DELHI IN ITA 508/2011 AND 901/2011 BOTH DA TED 24.10.2011, WE ARE OF ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 12 THE CONSIDERED OPINION THAT AS WE HAVE ADMITTED ADD ITIONAL EVIDENCE OF THE ASSESSEE AND THE SAME HAS BEEN TAKEN ON RECORD, IT IS VITAL AND NECESSARY TO EXAMINE THE ISSUE IN THE LIGHT OF DIRECTIONS OF THE HONBLE HIGH COURT OF DELHI AND TO DECIDE THE CONTROVERSY IN QUESTION IN THE LI GHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA). WE FURTHER NOTE THAT AS WE HAVE ALREADY HELD THAT THE ASSESSEE HAS SUBMITTED A DDITIONAL EVIDENCE TO SUPPORT ITS CLAIM DURING RE-EXAMINATION BY THIS TRIBUNAL IN THE LIGHT OF ORDER OF HONBLE HIGH COURT OF DELHI, TO DISCHARGE ITS ONUS TO PROVE ITS CLAIM FOR ALLOWABILITY OF ADDITIONAL DEPRECIATION U/S 32(1)(IIA) OF THE ACT A ND THERE WAS NEITHER ANY OCCASION NOR ANY OPPORTUNITY TO BRING THE SAID EVID ENCE ON RECORD FOR THE ASSESSEE DURING THE FIRST ROUND OF PROCEEDINGS BEFO RE THE REVENUE AUTHORITIES AND THE TRIBUNAL AND, AT THE SAME TIME, WE ALSO NOTE TH AT THE AO HAD ALSO NOT TRIED TO VERIFY AND EXAMINE THE ADDITIONAL EVIDENCE AS AD MITTED AND TAKEN ON RECORD BY US BY THE EARLIER PART OF THIS ORDER, THEREFORE, TO MEET THE ENDS OF JUSTICE, WE FIND IT APPROPRIATE TO RESTORE THE ISSUE IN ALL FOU R APPEALS TO THE FILE OF AO TO VERIFY THE ADDITIONAL EVIDENCE FILED BY THE ASSESSE E AND TO DECIDE THE CONTROVERSY IN QUESTION IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF N.C. BUDDHIRAJA (SUPRA). WE ALSO NOTE THAT LD. DR, IN ALL FAIRNESS, AGREED THAT IF IT IS FOUND JUST AND PROPER TO RESTO RE THE ISSUE TO THE FILE OF AO, THEN THE DEPARTMENT HAS NO SERIOUS OBJECTION. UNDE R THE ABOVE SET OF FACTS AND CIRCUMSTANCES, WE REACH TO A LOGICAL CONCLUSION THA T THE AO SHOULD BE GIVEN AN OPPORTUNITY TO VERIFY AND EXAMINE THE ADDITIONAL EV IDENCE AND TO ADJUDICATE THE ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 13 ISSUE IN THE LIGHT OF ORDER OF HONBLE HIGH COURT O F DELHI FOR AY 2004-05 (SUPRA) AND 2006-07 (SUPRA) BOTH DATED 24.10.2011 T AKING RESPECTFUL COGNIZANCE OF THE DECISION OF HONBLE APEX COURT IN THE CASE O F N.C. BUDDHIRAJA (SUPRA). ACCORDINGLY, ASSESSEES APEPAL IN ITA NO. 4672/DEL/ 2007 FOR AY 2004-05, REVENUES APPEALS IN ITA NO. 3527/DEL/2011 FOR AY 2 006-07, ITA NO. 3082/DEL/2010 FOR AY 2007-08 AND ITA NO. 3602/DEL/2 011 FOR AY 2008-09 ARE RESTORED TO THE FILE OF AO FOR THE LIMITED PURP OSE OF EXAMINATION AND VERIFICATION OF THE FOLLOWING FACTUAL ISSUES:- I) WHETHER RMC MANUFACTURED BY THE ASSESSEE DURING RE LEVANT PERIODS WAS CONSUMED IN HOUSE OR SOLD TO OUTSIDE TH IRD PARTIES? II) WHETHER THE ASSESSEE IS ENTITLED FOR ADDITIONAL DEP RECIATION ON THE MACHINERY/EQUIPMENT USED FOR THE SAID ACTIVITIES/PU RPOSE OF MANUFACTURING OF THE RMC WHICH WAS SOLD TO OUTSIDE THIRD PARTIES IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN T HE CASE OF N.C. BUDDHIRAJA (SUPRA)? 15. THE ASSESSING OFFICER IS DIRECTED TO ALLOW ADDI TIONAL DEPRECIATION AS PER OUTCOME OF AFOREMENTIONED FACTUAL ISSUES AND IN THE LIGHT OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF N.C. BUDDHARAJA (SUPRA ). ACCORDINGLY, ALL FOUR APPEALS ARE DISPOSED OF AND MAY BE DEEMED TO BE ALL OWED FOR STATISTICAL PURPOSES ON THE LIMITED ISSUE AS MENTIONED HEREINAB OVE. ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 14 ORDER PRONOUNCED IN THE OPEN COURT ON 23.1.2015. SD/- SD/- ( B.C. MEENA) (CHANDRAMOHAN GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 23 RD JANUARY 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR ITA 3082/D/10, 3527/D/11, 3602/D/11, 4672/D/07 AYS: 2007-08, 06-07, 08-09, 04-05 15