DCIT 8(3)(2), MUMBAI V. ZYLOG PLAST ALLOY P. LTD, MUMBAI

ITA 3412/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8443 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 04-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A DHYANI
• Assessee Lawyers: RAJESH V PAREKH
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Additional depreciation; Additional evidence; Onus to prove
• Section: 143(3); 32

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.3412/ MUM/2015 ( / ASSESSMENT YEAR : 2011-12) THE DY. CIT 8(3)(2), ROOM NO. 615, AAYAKAR BHAVAN, 6 TH FLOOR, M.K. MARG, MUMBAI 400 020. / V. ZYLOG PLAST ALLOY PRIVATE LIMITED C/O M/S VOLTAS LTD., 14, DIVYA MAHA, GYAN MANDIR ROAD, DADAR (W), MUMBAI 400028. ./ PAN : AAACZ0342B ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : SHRI R.A. DHYANI, DR ASSESSEE BY : SHRI RAJESH V. PAREKH / DATE OF HEARING : 07-02-2017 / DATE OF PRONOUNCEMENT : 21-02-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE REVENUE, BEING ITA NO. 3 412/MUM/2015, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 31 ST MARCH, 2015 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 14, M UMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2011- 12, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 25 TH MARCH, 2014 PASSED BY THE A.O. U/S 143(3) OF THE I NCOME-TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 3412/MUM/2015 2 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN THE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- (I) THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LA W IN DELETING THE ADDITIONS MADE BY THE AO ON ACCOUNT OF DISCOUNT AND RE BATE, DEPRECIATION AND ADDITIONAL DEPRECIATION WITHOUT PROPE RLY APPRECIATING THE FACTUAL AND LEGAL MATRIX AS CLEARLY BROUGHT OUT BY THE ASSESSING OFFICER. (II) THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LA W IN DELETING THE ADDITION OF RS.93,77,075/- ON ACCOUNT OF DISCOUNT AND REBATE WITHOUT APPRECIATING THAT THESE EXPENSES HAVE BEEN ALLOWED TO CUSTOMERS SEPARATELY OUTSIDE THE SALE BILLS AND ALSO NO QUESTIO N OF REBATE AND DISCOUNT ARISES WHEN ONCE THE CONTRACT OF SALE HAS BEE N ENTERED & THE SAME HAS BEEN CREATED/PERFORMED WHEN THE SALE BILL WAS MADE AND GOODS SUPPLIED. (III) THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN L AW IN DELETING THE ADDITIONS OF RS.65,04,525/- AND RS. 87,33,201/- ON A CCOUNT OF DEPRECIATION AND ADDITIONAL DEPRECIATION RESPECTIVELY WITHOUT APPRECIATING THAT THE ASSESSEE ITSELF HAS ACCEPTED THE FACT THAT NEW UNDERTAKING ESTABLISHED IN CHENNAI ARE MANUFACTURING U NIT AND IN WHICH THE MANUFACTURING ACTIVITY HAS NOT YET BEGUN. (IV) THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LA W IN DELETING THE ADDITIONS OF RS.9,32,473/- ON ACCOUNT OF INTEREST @ 12 % OF THE COST OF LAND PURCHASED, WITHOUT PROPERLY APPRECIATING THE FACTUA L AND LEGAL MATRIX AS CLEARLY BROUGHT OUT BY THE ASSESSING OFFICE R. 2. THE LD.CIT(A)'S ORDER IS CONTRARY TO LAW AND ON F ACTS AND DESERVES TO BE SET ASIDE AND A.O'S ORDER MAY BE REST ORED. 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESS EE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF MODIFIED POLYPROPY LENE GRANULE & MOULDED COMPONENTS. IT WAS OBSERVED BY THE A.O. THAT THE A SSESSEE HAS CLAIMED DISCOUNT AND REBATE EXPENSES OF RS. 93,77,075/- IN THE PROFIT AND LOSS ACCOUNT. THE ASSESSEE WAS ASKED TO FURNISH DETAILS AND EVIDENCES OF EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT. O N PERUSAL OF THE DETAILS FURNISHED BY THE ASSESSEE, THE A.O. OBSERVED THAT T HE DISCOUNT AND REBATE EXPENSES WERE CLAIMED BY THE ASSESSEE SEPARATELY IN THE P&L ACCOUNT AND IT ITA 3412/MUM/2015 3 HAS BEEN ALLOWED TO CUSTOMERS SEPARATELY OUTSIDE TH E SALE BILLS. THE A.O. OBSERVED THAT NORMALLY, IN GENERAL BUSINESS PRACTIC E THE DISCOUNT AND REBATE WERE ALLOWED BY ANY PERSON IN THE BILL AMOUNT AND N OT OUTSIDE THE BILL AMOUNT. THE AO OBSERVED THAT THE ASSESSEE HAS ALSO NOT FURNISHED ANY CALCULATION, REASONS, JUSTIFICATION FOR THESE EXPEN SES INCURRED TOWARDS DISCOUNTS AND REBATES. IN THE ABSENCE OF ANY EVIDE NCES, DISCOUNT AND REBATE GIVEN BY THE ASSESSEE CANNOT BE VERIFIABLE AND DESE RVES TO BE DISALLOWED WERE THE OBSERVATIONS OF THE AO. ACCORDINGLY, THE A.O. D ISALLOWED AN AMOUNT OF RS. 93,77,075/- CLAIMED BY THE ASSESSEE TOWARDS EXPENSE S BEING DISCOUNTS AND REBATES AND ADDED THE SAME TO THE TOTAL INCOME OF T HE ASSESSEE VIDE ASSESSMENT ORDER DATED 25-03-2014 PASSED BY THE AO U/S 143(3) OF THE ACT OF 1961 AS THE SAME WERE NOT ESTABLISHED TO HAVE BEEN INCURRED EXCLUSIVELY FOR THE PURPOSES OF BUSINESS OF THE ASSESSEE. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 143(2) OF THE ACT, THE A.O. ALSO OBSERVED THAT THE ASSESSE E HAS STATED TO HAVE GOT INSTALLED NEW PLANT AT PLOT NO. 1-8/2, PHASE-II, SI PCOT INDUSTRIAL PARK, SRIPERUMBUDUR, CHENNAI . IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAS CLAIMED TO BE ENGAGED IN THE BUSINESS OF MANUFACTUR ING OF MODIFIED POLYPROPYLENE GRANULE & MOULDED COMPONENTS AND IS H AVING MANUFACTURING UNITS AT NASIK AND PUNE AS WELL A NEW UNDERTAKING W AS STATED TO BE ESTABLISHED AT CHENNAI. THE AO OBSERVED THAT NO MAN UFACTURING ACTIVITY HAS BEGUN IN CHENNAI UNIT AND HENCE THE ASSESSEE IS NOT ELIGIBLE TO CLAIM ADDITIONAL DEPRECIATION ON NEW PLANT AND MACHINERY INSTALLED FOR NEW UNDERTAKING AT CHENNAI. THE AO OBSERVED THAT THE A SSESSEE HAD FURNISHED ELECTRICITY BILLS FOR ITS MAHARASHTRA UNITS LOCATED AT PUNE AND NASIK FOR THE WHOLE YEAR WHILE THE ASSESSEE HAS FURNISHED ELECTRI CITY BILL FOR ITS CHENNAI UNIT ONLY FOR THE MONTH OF APRIL 2011. IT WAS OBSER VED BY THE AO THAT THE ASSESSEE HAS NOT SUBMITTED ANY ELECTRICITY BILL FOR THE ENTIRE PREVIOUS YEAR ENDED 31-03-2011 WITH RESPECT TO NEW UNDERTAKING ST ATED TO BE OPERATIVE AT ITA 3412/MUM/2015 4 CHENNAI. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED ANY CERTIFICATE FOR COMMENCEMENT / COMMISSIONING OF ITS MANUFACTURING UNIT AT CHENNAI AND EVEN TRIAL OF ACTIVITY CERTIFICATE WAS NOT FURNISHED. THE AO OBSERVED THAT THE ASSESSEE HAD CLAIMED DEPRECIATION OF RS. 65,04,525/- AND ADDITIONAL DEPRECIATION OF RS. 87,33,201/- FOR ITS NEW PLANT AND MACHINERY PURCHASED FOR ASSESSES NEW INDUSTRIAL UNDERTAKING AT CHENNAI PLANT. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF DEPRECIATI ON AND ADDITIONAL DEPRECIATION ALONG-WITH DOCUMENTARY EVIDENCES TO PR OVE THE ELIGIBILITY. IN REPLY, THE ASSESSEE FURNISHED THE DETAILS OF DEPRE CIATION ALONG WITH A CERTIFICATE FROM THE AUDITORS, WHEREIN THE AUDITOR S MENTIONED AS UNDER:- WE CERTIFY THAT THE DEDUCTION TO BE CLAIMED BY THE ASSESSEE UNDER THE PROVISIONS OF CLAUSE (A) OF THE FIRST PROVISO T O CLAUSE (IIA) OF SUB- SECTION (1) OF SECTION 32 OF THE I. T. ACT, 1961, I N RESPECT OF THE ASSESSMENT YEAR 2011-12 IS RS. 87,33,201/- WHICH HA S BEEN DETERMINED ON THE BASIS OF NEW PLANT AND MACHINERY ACQUIRED AND INSTALLED AFTER THE 31ST DAY OF 2002 BY THE ASSESSE E IN THE NEW INDUSTRIAL UNDERTAKING.' THE A.O. OBSERVED THAT THE ASSESSEE HAS NOT COMMENC ED MANUFACTURING ACTIVITY AT CHENNAI UNIT TILL THE END OF THE PREVIO US YEAR, HENCE THE ASSESSEE IS NOT ELIGIBLE FOR DEPRECIATION / DEPRECIATION ON NEW PLANT AND MACHINERY FOR THE RELEVANT ASSESSMENT YEAR. IT WAS ALSO OBSERVED THAT THE ASSESSEE HAS NOT SUBMITTED ELECTRICITY BILL FOR CHENNAI UNIT FOR THE ENTIRE PREVIOUS YEAR ENDED ON 31-03-2011. THE A.O. OBSERVED THAT THE ASSESSEE HAS NOT STARTED ITS MANUFACTURING ACTIVITY FROM ITS CHENNAI UNIT AND TH E ASSESSEE HAS NOT FURNISHED ANY CERTIFICATE FOR COMMENCEMENT/COMMISSI ONING OF ITS MANUFACTURING ACTIVITY FROM ITS CHENNAI UNIT. THE A .O. ACCORDINGLY CAME TO THE CONCLUSION THAT THE ASSESSEE FAILED TO ESTABLIS H ITS ELIGIBILITY FOR CLAIMING DEPRECIATION AND ADDITIONAL DEPRECIATION FOR ITS NE W PLANT AND MACHINERY FOR ITS NEW INDUSTRIAL UNDERTAKING AT CHENNAI, HENCE, T HE A.O. DISALLOWED AN AMOUNT OF RS. 1,52,37,726/- TOWARDS DEPRECIATION AN D ADDITIONAL ITA 3412/MUM/2015 5 DEPRECIATION W.R.T. NEW CHENNAI UNDERTAKING AND ADD ED THE SAME BACK TO THE INCOME OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 25-03-2014 PASSED BY THE AO U/S 143(3) OF THE ACT OF 1961. 5. IT WAS ALSO OBSERVED BY THE A.O. THAT THE ASSESS EE HAS PURCHASED LAND FOR A COST OF RS. 72.75 LACS WHICH WERE APPARENTLY MADE FROM THE FUNDS RAISED BY THE ASSESSEE FROM SECURED AND UNSECURED LOAN. T HE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE INTEREST ATTRIBUTABLE TO T HE LAND COST MAY NOT BE TREATED AS CAPITAL IN NATURE AND DISALLOWED ACCORDI NGLY. IN REPLY, THE ASSESSEE SUBMITTED THAT THE LAND WAS PURCHASED BY THE ASSESS EE OUT OF ITS OWN ACCRUAL AND HAS NOT TAKEN ANY LOAN FOR PURCHASE OF LAND AND HENCE INTEREST EXPENDITURE CANNOT BE CAPITALIZED. THE A.O. REJECT ED THE CONTENTIONS OF THE ASSESSEE AND HELD THAT THE ONUS TO PROVE THAT THE L AND WERE PURCHASED BY THE ASSESSEE OUT OF ITS OWN ACCRUALS WERE MERE STATEMEN TS AND NOT SUPPORTED WITH ANY DOCUMENTARY EVIDENCES AND THE ASSESSEE HAS JUST TRIED TO JUSTIFY ITS CLAIM OF INTEREST. THE ONUS LIES ON THE ASSESSEE TO PROVE THAT THE LANDS WERE PURCHASED FROM ITS OWN INTEREST FREE ACCRUALS AND N O COST OF INTEREST HAS BEEN DIRECTLY OR INDIRECTLY BORNE BY THE ASSESSEE FOR PU RCHASE OF LAND AND THIS ONUS HAS NOT BEEN DISCHARGED BY THE ASSESSEE. THUS, THE A.O. BROUGHT TO TAX BY DISALLOWING INTEREST EXPENSES AMOUNTING TO RS.9,32, 473/- @ 12% ON COST OF LAND AMOUNTING TO RS. 77,70,605/- AND DISALLOWED TH E INTEREST EXPENSES BEING EXPENDITURE NOT INCURRED EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE VIDE ASSESSMENT ORDER DATED 25-03-2014 PAS SED BY THE AO U/S 143(3) OF THE ACT. 6. AGGRIEVED BY THE ASSESSMENT ORDER DATED 25-03-20 14 PASSED BY THE A.O. U/S 143(3) OF THE ACT, THE ASSESSEE CARRIED THE MAT TER BEFORE THE LD. CIT(A) BY FILING FIRST APPEAL. BEFORE THE LD. CIT(A), THE AS SESSEE HAD SUBMITTED LARGE NUMBER OF ADDITIONAL EVIDENCES W.R.T. ALL THE THREE ADDITIONS TO JUSTIFY ITS CLAIM WHICH WERE ANNEXED TO STATEMENT OF FACTS FILE D ALONG WITH THE APPEAL IN ITA 3412/MUM/2015 6 THE FORM OF ANNEXURE A TO D (PAGES 166-378/PAPER BO OK FILED WITH THE TRIBUNAL) . THE LEARNED CIT(A) ADJUDICATED THE FIRS T APPEAL ON MERITS BY ACCEPTING THE CONTENTIONS OF THE ASSESSEE BY DELETI NG ALL THE THREE AFORESAID ADDITIONS AFTER APPRECIATION OF THESE ADDITIONAL EV IDENCES WHICH WERE FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LEARNED CIT(A) VIDE APPELLATE ORDER DATED 31-03-2015 PASSED BY LEARNED CIT(A). THUS, I N NUT-SHELL , THE LEARNED CIT(A) DELETED THE AFORE-STATED THREE ADDITIONS MAD E BY THE A.O. , VIDE APPELLATE ORDER DATED 31-03-2015. 7. AGGRIEVED BY THE APPELLATE ORDER DATED 31-03-20 15 PASSED BY THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNA L. 8. BEFORE US THE MATTER WAS ARGUED BY BOTH THE PART IES ON MERITS. IT WAS ALSO ADMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE DU RING THE COURSE OF HEARING BEFORE US THAT A LARGE NUMBER OF ADDITIONAL EVIDENC ES WERE FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) FOR THE FIRST TI ME WHICH WERE ANNEXED TO STATEMENT OF FACTS FILED ALONG WITH MEMO OF APPEAL FILED BEFORE THE LEARNED CIT(A), WHICH EVIDENCES WERE NOT PRODUCED BY THE A SSESSEE BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS . IT WA S ACCEPTED BY LEARNED COUNSEL FOR THE ASSESSEE THAT NO REMAND REPORT WAS CALLED BY THE LEARNED CIT(A) FROM THE AO FOR SEEKING HIS COMMENTS/OBSERVA TION ON THESE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE LEARNED CIT(A). THE LEARNED DR HAS TAKEN OBJECTION TO THE NON-COMPLIANC E OF RULE 46A OF INCOME- TAX RULES , 1962 BY LEARNED CIT(A) BEFORE ADJUDICAT ION OF THE APPEAL ON MERITS BY LEARNED CIT(A) BASED ON RELIANCE OF ADDITIONAL E VIDENCES FILED FOR THE FIRST TIME BEFORE LEARNED CIT(A) DURING APPELLATE PROCEED INGS. 9. WE HAVE HEARD RIVAL CONTENTIONS AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE A.O. HAS MADE THREE ADDITIONS WHEREIN ADDITIONS HAD BEEN MADE TO THE INCOME OF THE ASSESS EE BY DISALLOWING ITA 3412/MUM/2015 7 EXPENSES INCURRED WITH RESPECT OF DISCOUNT AND REBA TES TO THE TUNE OF RS. 93,77,075/- ALLOWED TO THE CUSTOMERS BY THE ASSESSE E, DISALLOWANCE OF DEPRECIATION OF RS. 65,04,525/- AND ADDITIONAL DEPR ECIATION TO THE TUNE OF RS. 87,33,201/- ON NEW UNDERTAKING AT CHENNAI AND THE T HIRD ONE IS ON ACCOUNT OF DISALLOWANCE OF INTEREST EXPENSES INCURRED ON TH E PURCHASE OF LAND TO THE TUNE OF RS. 9,32,473/- . WE HAVE OBSERVED THAT THE ASSESSEE FILED LARGE NUMBER OF ADDITIONAL EVIDENCES TO SUPPORT ITS CONTE NTIONS BEFORE THE LEARNED CIT(A) FOR THE FIRST TIME DURING APPELLATE PROCEEDI NGS WHICH WERE ANNEXED ALONG WITH STATEMENT OF FACTS FILED ALONG WITH MEMO OF APPEAL FILED WITH LEARNED CIT(A) BEING ANNEXURE A TO D (PAGES 166-378 /PAPER BOOK FILED WITH THE TRIBUNAL) . THE LD. CIT(A) ADMITTED THESES ADDI TIONAL EVIDENCES FILED WITH RESPECT TO ALL THE THREE AFORE-STATED ADDITIONS MAD E BY THE AO TO THE INCOME, WHEREIN ALL THE THREE AFORE-STATED ADDITIONS STOOD DELETED BY LEARNED CIT(A) ON APPRECIATION ON MERITS OF THESE LARGE NUMBER OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WITH LEARNED CIT(A) VIDE HIS APPELL ATE ORDER DATED 31-03- 2015. THESE LARGE NUMBER OF ADDITIONAL EVIDENCES S O SUBMITTED BY THE ASSESSEE FOR THE FIRST TIME DURING THE COURSE OF AP PELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) WERE ADMITTED BY THE LEARNED CIT (A) WITHOUT GIVING AND SPECIFYING ANY REASONING AND JUSTIFICATION AS TO T HE LIMBS UNDER WHICH AS CONTEMPLATED UNDER RULE 46A(A) TO (D) OF INCOME-TAX RULES, 1962 THESE ADDITIONAL EVIDENCES WERE ADMITTED BY HIM WHILE ADJ UDICATING FIRST APPEAL OF THE ASSESSEE AS NO JUSTIFICATION WERE GIVEN BY THE ASSESSEE FOR NON-FILING OF THESE EVIDENCES BEFORE THE LEARNED AO. FURTHER, THE SE LARGE NUMBER OF ADDITIONAL EVIDENCES WERE ALSO NOT FORWARDED BY LE ARNED CIT(A) TO THE A.O. FOR GIVING AN AO AN OPPORTUNITY OF EXAMINATION, VERIFIC ATION AND SEEKING AOS COMMENTS AS NO REMAND REPORT WAS CALLED BY THE LEAR NED CIT(A) AS CONTEMPLATED U/R 46A(3) OF INCOME-TAX RULES,1962. T HE LD. CIT(A) HAS TO RECORD REASONS IN WRITING BEFORE ACCEPTING ADDITION AL EVIDENCES FILED BEFORE HIM BY THE ASSESSEE FOR THE FIRST TIME AS CONTEMPLA TED U/R 46A(2) OF INCOME- TAX RULES, 1962, WHICH HAS NOT BEEN DONE BY LEARNED CIT(A) IN THE INSTANT ITA 3412/MUM/2015 8 APPEAL. FURTHER, THE LEARNED CIT(A) IS REQUIRED U/R 46A(3) OF INCOME-TAX RULES, 1962 TO FORWARD THESE ADDITIONAL EVIDENCES T O THE AO FOR HIS EXAMINATION AND SEEK REMAND REPORT FROM THE AO ON T HESE ADDITIONAL EVIDENCES FILED BEFORE HIM FOR THE FIRST TIME IN AP PELLATE PROCEEDINGS PRIOR TO ADJUDICATING FIRST APPEAL ON MERITS, WHICH HAS NOT BEEN DONE IN THE INSTANT CASE BY LEARNED CIT(A) . IN OUR CONSIDERED VIEW, S INCE THESE LARGE NUMBER OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE LEARNED CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS G OES TO THE ROOT OF THE MATTER FOR DECIDING ALL THE THREE ISSUES UNDER APPE AL ON MERITS , THESE ADDITIONAL EVIDENCES NEED TO BE ADMITTED BY THE LEA RNED CIT(A) ON MERITS AFTER BEING SATISFIED WITH MANDATE OF RULE 46A(1) R.W.R. 46A(2) OF INCOME-TAX RULES,1962 AND FURTHER THESE ADDITIONAL EVIDENCES NEEDS TO BE CONFRONTED TO THE A.O. FOR HIS EXAMINATION AND COMMENTS IN COMPLI ANCE OF RULE 46A(3) OF INCOME-TAX RULES, 1962 WHEREIN REMAND REPORT NEED T O BE CALLED BY LEARNED CIT(A) FROM THE AO. THESE STATUTORY RULES OF 1962 C ANNOT BE GIVEN A SIMPLE GO-BYE AND WHEN THE LAW CONTEMPLATES A THING TO BE DONE IN A PARTICULAR MANNER , THE SAME NEED TO BE DONE IN THAT MANNER OR OTHERWISE IT IS NOT TO BE DONE AT ALL. UNDER THESE CIRCUMSTANCES AND FACTUAL MATRIX OF THE MATTER AS DISCUSSED BY US ABOVE, WE ARE INCLINED TO SET ASIDE AND RESTORE ALL THE THREE ISSUES COVERED BY THIS APPEAL BACK TO THE FILE OF T HE LEARNED CIT(A) WHO WILL DECIDE THE ISSUES ON MERITS AFTER COMPLYING WITH RE QUIREMENTS AND MANDATE OF RULE 46A(1) TO (3) OF INCOME-TAX RULES, 1962. TH E ASSESSEE IS DIRECTED TO APPEAR BEFORE LEARNED CIT(A) FORTHWITH ON RECEIPT O F THIS ORDER . THE LEARNED CIT(A) SHALL GRANT OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WI TH LAW BEFORE DE-NOVO ADJUDICATING THE APPEAL. WE ORDER ACCORDINGLY 10. IN THE RESULT, APPEAL FILED BY THE REVENUE IN I TA NO. 3412/MUM/2015 FOR ASSESSMENT YEAR 2011-12 IS ALLOWED FOR STATISTI CAL PURPOSES. ITA 3412/MUM/2015 9 ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2017. # $% &' 21-02-2017 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 21-02-2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI I BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI