The DCIT, Central Circle-2(2), Ahmedabad V. N.K. Proteins Ltd., Ahmedabad

ITA 3304/AHD/2007

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9248 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 02-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 02-08-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABHIJEET KUMAR N
• Assessee Lawyers: A C SHAH
• Keywords: Depreciation; Principle of natural justice; Additional evidence; Assessment record; Revenue expenditure; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI G.D.AGRAWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 02/11/2010 DRAFTED ON: 02/ 11/2010 ITA NO.3304/AHD/2007 ASSESSMENT YEAR : 2004-05 THE DCIT CENTRAL CIRCLE 2(2) AHMEDABAD VS. N.K.PROTEINS LTD. 9 TH FLOOR POPULAR HOUSE ASHRAM ROAD AHMEDABAD PAN/GIR NO. : AAACN 9377 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI ABHIJEET KUMAR N. RESPONDENT BY: SHRI A.C.SHAH O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WHI CH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-III AHMEDAB AD DATED 01/05/2007 PASSED FOR ASSESSMENT YEAR 2004-05 . FOL LOWING EFFECTIVE GROUNDS WERE RAISED:- 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DELETINGRS.9,22,241/- MADE ON ACCOUNT OF BUILDING R EPAIRS EXPENSES. 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS I N RESTRICTING THE CONSULTANCY CHARGES TO RS.64,102/- AND THEREBY GRAN TING RELIEF OF RS.1,40,155/-. ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 2 - 3. THE LEARNED CIT(A) ERRED IN LAW AND ON ACTS IN DELETING DISALLOWANCE OF DEPRECIATION OF RS.18,00,000/- ON E RP SOFTWARE. 2. REVENUE HAS ALSO RAISED AN ADDITIONAL GROUND, WH ICH IS ALSO REPRODUCED BELOW:- THE LD. COMMISSIONER OF INCOME TAX (A)-III, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION OF ERP SOFT WARE BY ADMITTING ADDITIONAL EVIDENCE IN THE FORM OF A LETT ER FROM THE SUPPLIER THAT THE SOFTWARE PURCHASED WAS INSTALLED, IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX ACT, 19 61. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT, 1961 DATED 28/1 2/2006 WERE THAT THE ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF MANU FACTURING OF REFINED OILS. THE ASSESSING OFFICER HAS NOTICED THAT AN E XPENDITURE UNDER THE HEAD BUILDING REPAIRS OF RS.9,70,780/- WAS INCURRED DURING THE YEAR UNDER CONSIDERATION. THE SAID EXPENDITURE WAS STA TED TO BE TOWARDS CONSTRUCTION OF CEMENTED ROAD IN THE PLANT. ON VE RIFICATION OF COPY OF ACCOUNT, IT WAS FOUND THAT THE ITEMS PURCHASED WERE RELATED TO RCC ROAD, SUCH AS, PURCHASES OF CEMENT, BRICKS, ROUND-BARS, S TEEL-BARS, SILICA, ETC. AS PER ASSESSING OFFICER, THE CONSTRUCTION WAS NOT TOWARDS IMPROVEMENT OR MODIFICATION OF EXISTING ROAD. THE ASSESSING OFFICER HAS TREATED THE EXPENDITURE AS CAPITAL EXPENDITURE , HOWEVER ALLOWED THE DEPRECIATION. 4. WHEN THE MATTER HAD REACHED BEFORE THE FIRST APP ELLATE AUTHORITY, VIDE PARAGRAPH NOS.4.3 & 5, A VIEW WAS TAKEN IN FAV OUR OF THE ASSESSEE, RELEVANT PORTIONS REPRODUCED BELOW:- ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 3 - 4.3. BEFORE ME, IT WAS SUBMITTED THAT THE APPELLA NT HAD CONSTRUCTED A ROAD WITHIN ITS FACTORY, FOR WHICH AM OUNT OF RS.5.14 LAKHS HAD BEEN EXPENDED IN THE FINANCIAL YE AR 2001- 02. THE COST OF THE ROAD HAD BEEN CAPITALIZED. TH IS ROAD WAS ESSENTIAL FOR THE OPERATIONS/MANUFACTURING ACTIVITI ES OF THE APPELLANT. THE EXPENSES WERE INCURRED ON ITS REPAI RS AND INVOLVED PURCHASE OF STEEL, CEMENT, SAND, ETC., TH E DETAILS ON WHICH HAD BEEN FURNISHED. IT WAS ARGUED THAT THE AMOUNT OF RS.9.70 LAKHS WOULD HAVE BEEN INADEQUATE FOR CONSTR UCTION OF A NEW ROAD. THE A.O. HAD ERRONEOUSLY CONCLUDED SO. 5. THE CONTENTIONS WERE CONSIDERED CAREFULLY ALON G WITH THE DETAILS ON RECORD. IT IS SEEN THAT THE CONCLUSION OF THE A.O. THAT A NEW ROAD HAD BEEN BUILT WAS A HURRIED ONE. THE NATURE OF THE EXPENSES, ITS QUANTUM, THE PREVIOUS HISTORY, AS INFORMED BY THE APPELLANT, THE NECESSITY OF REPAIRS, ETC. IN DICATE THAT THE EXPENDITURE OF RS.9.70 LAKHS WAS ONLY FOR CURRENT R EPAIRS AND WAS ALLOWABLE. AS SUCH, THE DISALLOWANCE OF RS.9,2 2,241/- MADE BY THE A.O. IS DELETED. 5. HEARD BOTH THE SIDES. A COPY OF THE BALANCE-SHE ET AND THE ACCOUNTS OF THE COMPANY ARE PLACED BEFORE US. ON P ERUSAL, IT WAS NOTICED THAT THE COST TOWARDS THE CONSTRUCTION OF THE ROAD HAD ALREADY BEEN REFLECTED IN THE BOOKS OF ACCOUNT. IN THE ACCOUNTS , IT WAS MENTIONED THAT THE COST OF ROAD HAD ALREADY BEEN CAPITALIZED IN THE BO OKS OF ACCOUNT . THE LD. A.R, MR. A.C.SHAH HAS ALSO INFORMED THAT TH E ASSESSEE BEING A MANUFACTURER OF REFINED EDIBLE OIL, THEREFORE, EVER YDAY THERE ARE NUMBER OF TRUCKS AND TANKERS USED TO PLY ON THOSE ROADS FO R LOADING AND UNLOADING OF RAW-MATERIALS AS WELL AS FINISHED GOOD S, HENCE CAUSING FREQUENT WEAR AND TEAR. HE HAS ARGUED THAT THE EX PENDITURE IN QUESTION ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 4 - WAS ONLY TOWARDS MAINTENANCE AND REPAIR OF THE EXIS TING ROAD. HE HAS ALSO EMPHASIZED THAT THE RCC ROAD COULD NOT, AT ALL , BE CONSTRUCTED FOR A MEAGER SUM OF RS.9,70,780/-. WE HAVE CONSIDERED ALL THOSE FACTS AND EVIDENCES CAREFULLY AND ON APPRECIATION TAKE A VIEW THAT THE EXPENDITURE IN QUESTION HAS NOT BEEN DOUBTED, SO ALSO THE GENUI NENESS OF THE EXPENDITURE WAS ACCEPTED BY THE ASSESSING OFFICER, BUT HELD THE EXPENDITURE AS CAPITAL IN NATURE ,WHICH WAS ACCOR DING TO US WAS INCORRECT. REASON BEING , THE CIRCUMSTANCES HAVE B EEN REVEALED THAT THE ASSET IN QUESTION, I.E. ROAD WAS ALREADY IN EXISTEN CE AS PER THE BOOKS OF ACCOUNT AND DURING THE YEAR UNDER CONSIDERATION, THE EXPENDITURE WAS INCURRED TOWARDS REPAIRS AND MAINTENANCE WHICH WA S NOTHING BUT REVENUE IN NATURE. THEREFORE, THE FINDINGS OF THE CIT(A) IS HEREBY CONFIRMED AND THIS GROUND OF THE REVENUE IS DISMISS ED. 6. APROPOS GROUND NO.2, THE ASSESSING OFFICER HAS N OTICED THAT IN RESPECT OF FOLLOWING THREE PARTIES, CERTAIN EXPENDI TURE TOWARDS CONSULTANCY CHARGES WAS INCURRED WHICH WAS HELD B Y HIM AS A CAPITAL EXPENDITURE :- SR.NO. NAME OF PARTY NATURE OF SERVICES RENDERED EXPENDITURE INCURRED 1. QUALICE SOLUTIONS ISO 9001- 2000 DOCUMENTATION PREPARATION CONSULTANCY CHARGES 69497 2. JATINBHAI TRIVEDI PROFESSIONAL FEES FOR PREPARING AND FILLING DESIGN APPLICATION FOR JERRY CAR AND FOR OBTAINING REGISTRATION CERTIFICATE FROM REGISTRAR OF TRADEMARK, MUMBAI. 64012 ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 5 - 3. INTERNATIONAL STANDARD CERT.P.LTD. ISO 9001 2000 CERTIFICATION CONSULTATION 70658 6.1. IN COMPLIANCE OF SHOW-CAUSE NOTICE, THE ASSESS EE HAS GIVEN SUBMISSIONS PARTY-WISE AS UNDER:- QUALICE SOLUTION : RS.69,497 AND INTERNATIONAL S TANDARD CERT.P.LT. OF RS.70658 - IN THIS CONNECTION IT MA Y PLEASE BE NOTED THAT THE CONSULTANCY FEES ARE INCURRED FOR PREPARIN G THE DOCUMENTS AND OBTAINING THE CERTIFICATE FOR ISO 9001 2000. .. IT MAY ALSO BE NOTED THAT IF THE CERTIFICATE IS CANCELLED FOR NON-COMPLIANCE OF THE QUALITY CONTROL, THEN NO AMOUNT IS REFUNDED. THEREFORE IT IS A REVENUE EXPENDITURE AND CANNOT BE TREATED AS CAPI TAL EXPENDITURE. JATINBHAI Y TRIVEDI :RS.64012 - THE CONSULTANCY FE E IS PAID FOR OBTAINING THE REGISTRATION WITH THE TRADE MARK OFFI CE FOR DESIGN OF JERRY CAN. IN THIS CONNECTION, IT MAY PLEASE BE NOTED THAT JERRY CAN IS 5 LTR PACK. THIS PACKING AND DESIGN IS MODI FIED AS AND WHEN IT IS NECESSARY HAVING REGARD TO THE MARKET PR ACTICE OF THE COMPETITORS AND THE CUSTOMERS RESPONSE. THEREFORE THERE IS NO ENDURING ADVANTAGE OF SUCH CONSULTANCY FEES. IT MA Y ALSO BE NOTED THAT FEES ARE NOT PAID FOR REGISTRATION OF ANY BRAN D AND THAT THE FEES ARE PAID ONLY FOR REGISTRATION OF A PACKING DE SIGNS AND THEREFORE IT HAS NOT ENDURING ADVANTAGE. THEREFORE IT IS A REVENUE EXPENDITURE. 6.2. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINC ED AND HELD THAT THE PROFESSIONAL FEES FOR OBTAINING TRADE-MARK WAS AN EXPENDITURE FOR ENDURING BENEFIT, HENCE CAPITAL IN NATURE. LIKEW ISE, IN RESPECT OF OBTAINING ISO CERTIFICATE, THE EXPENDITURE WAS TREA TED AS CAPITAL IN NATURE. THE MATTER WAS CARRIED BEFORE THE FIRST A PPELLATE AUTHORITY. ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 6 - 7. THE LD.CIT(A) HAS GIVEN THE VERDICT IN A CRYPTIC MANNER VIDE PARA 5.2; REPRODUCED BELOW:- 5.2. IN RESPECT OF THE CONSULTANCY PAYMENTS, IT IS SEEN THAT OBTAINING OF THE ISO 9001 CERTIFICATION WAS A BUSIN ESS EXIGENCY AND THE CERTIFICATION REQUIRED YEARLY UPDA TING. THE EXPENSES OF RS.69,497/-AND RS.70,658/- SO INCURRED ON THE DOCUMENTATION/CERTIFICATION CONSULTANCY, WERE THERE FORE ALLOWABLE AS REVENUE EXPENDITURE. HOWEVER, IT IS S EEN THAT THE FEES PAID FOR OBTAINING THE TRADE MARK REGISTRATION IMPARTED ENDURING BENEFIT TO THE APPELLANT WHICH WAS ITSELF INHERENT UNDER THE TRADE MARK AND PATENTS ACT. THIS EXPENDI TURE CANNOT BE TERMED AS REVENUE IN NATURE AND ITS TREAT MENT, BY THE A.O. AS A CAPITAL EXPENDITURE IS THEREFORE UPHE LD. AS A RESULT, THE DISALLOWANCES MADE BY THE A.O. ARE RETA INED TO THE EXTENT OF RS.64,012/- ONLY I.E. FOR THE REGISTRATIO N CHARGES OF TRADE MARK OFFICE. 8. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES, AS ALSO ON APPRECIATION OF THE EVIDENCES , WE ARE OF THE CONSI DERED VIEW THAT THE EXPENDITURE INCURRED TOWARDS CONSULTANCY CHARGES PAID FOR ISO CERTIFICATION BEING AN ANNUAL FEATURE, AND THROUGH WHICH NO NEW ASSET HAS BEEN CREATED , HENCE RIGHTLY HELD AS REV ENUE IN NATURE. WE FIND NO FALLACY IN THE SAID JUDGEMENT OF LD.CIT( A), HENCE, CONFIRM THE SAME. THIS GROUND OF THE REVENUE IS DISMISSED. 9. APROPOS GROUND NO.3 AS WELL AS THE ADDITIONAL GR OUND RAISED BY THE REVENUE, THE BARE MINIMUM CONNECTED FACTS AS NA RRATED BY THE ASSESSING OFFICER WERE THAT THE ASSESSEE HAS INCURR ED AN EXPENDITURE OF RS.30 LAKHS ON ERP SOFTWARE STATED TO BE PURCHASED FROM M/S.EXPLORA INFOTECH LIMITED. A QUERY WAS RAISED TO FURNISH TH E DETAILS IN RESPECT OF THE SAID EXPENDITURE ALONGWITH THE PAN OF THE SUPPL IER, YEAR-WISE ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 7 - PAYMENT, DATE OF START AND COMPLETION OF THE PROJEC T, COPY OF AGREEMENT, ETC. IT IS WORTH TO MENTION AT THIS JUNCTURE THAT A PHOTOCOPY OF THE IMPUGNED ORDER-SHEET AS MAINTAINED BY THE REVENUE DEPARTMENT IN THE ASSESSMENT RECORD IS ALSO FURNISHED BEFORE US TO SU BSTANTIATE THAT THE ASSESSING OFFICER HAS MADE THE SPECIFIC QUERY IN RE SPECT OF THE ERP SOFTWARE EXPENDITURE, HOWEVER, NO SATISFACTORY REPL Y WAS FURNISHED BY THE ASSESSEE, THEREFORE, THE ASSESSING OFFICER HAD NO OPTION BUT TO DISALLOW THE CLAIM OF DEPRECIATION FOR WANT OF EVI DENCE. 10. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST AP PELLATE AUTHORITY IN A BRIEF AND CRYPTIC MANNER, THE ASSESSEES CLAIM OF DEPRECIATION WAS ALLOWED VIDE PARA 5.1; REPRODUCED BELOW :- 5.1. SIMILARLY, IT IS SEEN THAT THE FACTUM AND QU ANTUM OF THE PURCHASE OF THE ERP SOFTWARE ITSELF WAS NOT DOUBTED . THE PURCHASE HAD BEEN MADE ON 1/7/2003 AS PER THE PURCH ASE VOUCHER. THIS SOFTWARE PROVIDED EMPLOYEE WEB SERVI CES, SUPERVISORY WEB SERVICES, ADMINISTRATOR WEB SERVIC ES AND HAD FEATURES LIKE INVENTORY CONTROL, PURCHASE ORDER MAN AGEMENT, INVOICE MANAGEMENT, MANUFACTURING MANAGEMENT FEATUR ES, CUSTOMER RELATED FEATURES AND SO ON, WHICH WERE ALL RELATED TO BUSINESS OF THE APPELLANT. DISALLOWANCE OF DEPRE CIATION ON AN ASSUMPTION CANNOT BE JUSTIFIED AND IS THEREFORE DELETED. THE RELATED GROUNDS OF APPEAL ARE ALLOWED. 11. FROM THE SIDE OR THE REVENUE. THE LEARNED DEPAR TMENTAL REPRESENTATIVE, MR.ABHIJEET KUMAR N. HAS VEHEMEN TLY OBJECTED ONE OF THE CONTENTS OF THE PAPER-BOOK, I.E. A LETTER OF M/ S.EXPLORA INFOTECH LIMITED CLAIMED TO HAVE BEEN FILED BEFORE THE ASSES SING OFFICER. THE ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 8 - LD.DR HAS STATED THAT ON PERUSAL OF ASSESSMENT RECO RD, IT WAS FOUND THAT THE IMPUGNED LETTER WAS NOT FILED BEFORE THE ASSESS ING OFFICER. HE HAS ALSO ARGUED THAT THE LD.CIT(A) HAS ENTERTAINED FRES H EVIDENCES WITHOUT PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSIN G OFFICER AND, THEREFORE, INFRINGED THE PRESCRIBED RULE-46A OF THE I.T.RULES, 1962. THE LD.DR HAS, THEREFORE, CLARIFIED THAT BECAUSE OF THE SAID REASON AN ADDITIONAL GROUND WAS RAISED. 12. FROM THE SIDE OF THE RESPONDENT-ASSESSEE, LD . LEARNED AUTHORISED REPRESENTATIVE MR. A.C. SHAH HAS APPEARED AND ARG UED THAT EVEN IF THE SAID LETTER WAS FILED FOR THE FIRST TIME BEFORE THE FIRST APPELLATE AUTHORITY, THE SAME WAS RIGHTLY ENTERTAINED BY LD.CIT(A) AND T HAT RECOURSE WAS NOT AGAINST THE RULE 46A. FOR THIS PROPOSITION, HE H AS PLACED RELIANCE ON CIT VS. PODDAR SWADESH UDHYOG PVT.LTD. 295 ITR 252 (GAUHATI), SMT. PRABHAVATI S.SHAH VS. CIT 231 ITR 1 (BOM), ELECTRA (JAIPUR) PVT.LTD. VS. IAC 26 ITD 236 (DELHI) AND ITO VS. INDUSTRIAL R OADWAYS 112 ITD 291 (MUM.). 13. WE HAVE HEAD BOTH THE SIDES AT SOME LENGTH. AS FAR AS THE QUESTION OF RAISING OF SPECIFIC QUERY BY THE ASSESS ING OFFICER IN RESPECT OF THE CLAIM OF DEPRECIATION ON ERP SOFTWARE WAS CO NCERNED , SINCE THE COPY OF THE ORDER-SHEET DATED 14/12/2006 IS PLACED BEFORE US, HENCE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS UNDER OBLIGAT ION TO COMPLY WITH THOSE REQUIREMENTS. IF THE ASSESSEE HAS NOT DISCHA RGED HIS PRIMARY ONUS OF PLACING ON RECORD ALL THE RELEVANT INFORMATION, THEN NATURALLY THE ASSESSING OFFICER IS AT LIBERTY TO TAKE A VIEW ONLY ON THE BASIS OF THE INFORMATION AVAILABLE ON RECORD. NEXT IS THE QUES TION ABOUT THE ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 9 - APPLICABILITY OF RULE 46A. UNDISPUTEDLY THE FIRST APPELLATE AUTHORITY IS EMPOWERED TO ENTERTAIN A FRESH EVIDENCE BUT THE RID ER IS THAT THE SAME SHOULD HAVE BEEN CONFRONTED TO THE REVENUE DEPARTME NT. IN THIS CONTEXT THE DECISIONS CITED FROM THE SIDE OF THE RESPONDENT -ASSESSEE AS REFERRED SUPRA HAVE ALSO AFFIRMED THIS RULE. NEVERTHELESS I N THE CASE OF INDUSTRIAL ROADWAYS 112 ITD 293 (SUPRA), FORCEFULLY RELIED UPO N BY LD.A.R., THEREIN IT WAS OBSERVED THAT IF THE ADDITIONAL EV IDENCE FURNISHED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY IS IN THE NATURE OF A CLINCHING EVIDENCE LEAVING NO FURTHER ROOM FOR ANY DOUBT OR C ONTROVERSY, IN SUCH A CASE NO USEFUL PURPOSE WOULD BE SERVED BY PERFORMIN G THE RITUAL OF FORWARDING THE MATERIAL/EVIDENCE TO THE ASSESSING O FFICER TO OBTAIN HIS REPORT. MEANING THEREBY THE NATURE OF EVIDENCE SH OULD BE SUCH THAT THERE WAS NO FURTHER ROOM FOR ANY DOUBT OR CONTROVERSY. IT SHOULD BE SO CLINCHING THAT EVEN NO ENQUIRY OR REPORT WAS AT ALL REQUIRED. CONTRARY TO THIS, THE EVIDENCE IN QUESTION, I.E. LETTER CON FIRMING THE INSTALLATION OF ERP SOFTWARE PACKAGE CANNOT BE SAID TO BE SO CLINCH ING THAT NO ENQUIRY OR INVESTIGATION WAS AT ALL NEEDED. ONCE RULE 46 A PUTS FETTERS ON THE RIGHT OF PRODUCING ADDITIONAL EVIDENCES BEFORE LEAR NED CIT(APPEALS), THEN IT IS ALWAYS JUDICIOUS AND APPROPRIATE TO PROV IDE AN OPPORTUNITY TO THE OTHER SIDE AS WELL. THE CONTEXT UNDER WHICH TH E JUDGEMENTS PASSED BY THE HONBLE AUTHORITY AS CITED SUPRA WERE THEREF ORE NOT MATCHING WITH THE FACTS OF THE PRESENT CASE. THE MANNER IN WHICH THE LEARNED CIT(APPEALS) HAS ENTERTAINED AND APPRECIATED CERTAI N EVIDENCES MUST NOT BE ENCOURAGED AND WE DO NOT APPROVE THE SAME. THER EFORE, THE NATURAL JUSTICE DEMANDS TO RESTORE THIS ISSUE BACK TO THE S TAGE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO AS PER LAW NEEDLESS TO SAY AFTER PROVIDING AN ADEQUATE OF HEARING TO THE RESPONDENT-ASSESSEE S O THAT THE EVIDENCE IN ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 10 - QUESTION CAN BE FURNISHED AS ALSO CAN BE EXAMINED. WE HEREBY AS WELL DIRECT THE ASSESSEE TO FULLY COOPERATE WITH THE A.O . BY PROMPT COMPLIANCE OF THE NOTICES SO THAT THE ASSESSMENT SH OULD BE FINALIZED EARLIEST POSSIBLE. IN CASE OF DEFIANCE THE A.O. IS AT LIBERTY TO ADOPT DUE RECOURSE AS PER LAW. WITH THESE DIRECTIONS, WE HER EBY RESTORE THIS GROUND BACK TO ASSESSING OFFICER, THEREFORE ALLOWED ONLY F OR STATISTICAL PURPOSES. 14. REST OF THE GROUNDS ARE GENERAL IN NATURE, THER EFORE, NEEDS NO JUDICIAL ADJUDICATION. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 19/ 11 /2010. SD/- SD/- ( G.D.AGRAWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 19 / 11 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-III, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NO. 3304/AHD/2007 DCIT VS. M/S.N.K. PROTEINS LTD. ASST.YEAR 2004-05 - 11 - 1. DATE OF DICTATION..02/11/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02/11/2010 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 19.11.2010 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19.11.2010 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER