AMOL DICALITE LTD., Ahmedabad V. THE ACIT.,Circle-1, Ahmedabad

ITA 359/AHD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80411 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Transfer pricing; Additional evidence; Non-deduction of tax
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO S . 3103 / AHD/ 20 1 1 & 359/AHD2013 (A SSESSMENT YEAR S : 2008 - 09 & 2009 - 10) AMOL DICALITE LTD., 301, AKSHAY, SHRIMALI SOCIETY, NAVRANGPURA, AHMEDABAD. V/S THE ACIT, CIRCLE - 1, AHMEDABAD (APPELLANT) (RESPOND ENT) PAN: AABCA 2807K APPELLANT BY : SHRI S.N. SOPARKAR RESPONDENT BY : SHRI M. K. SINGH, SR. D.R. ( )/ ORDER DATE OF HEARING : 18 - 09 - 2014 DATE OF PRONOUNCEMENT : 17 - 10 - 2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 2 APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 6, AHMEDABAD DATED 17.10.2011 AND 24.12.2012 FOR A.YS. 2008 - 09 & 2009 - 10 RESPECTIVELY . 2. BEFORE US, LD. A.R. SUBMITTED THAT THOUGH THE APPEALS RELATE TO 2 DIFFERENT ASSESSMENT YEARS, BUT THE ISSUES ARE IDENTICAL EXCEPT FOR THE AMOUNTS AND THEREFORE BOTH CAN BE HEARD AND DECIDED TOGETHER. WE THEREFORE PROCEED TO DISPOSE OF BOTH THE APPEALS BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND PROCE ED BY REFERRING TO THE FACTS FOR A.Y. 08 - 09. ITA NO 3103/A/11 & ITA NO. 359/A/13 . A.Y S . 2008 - 09 & 2009 - 10 2 3. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF FILTER AID AND PERLITE PRODUCTS, COTTON AND SYNTHETIC C LOTH AND LEASING. ASSESS EE FILED ITS RETURN OF INCOME OF A.Y. 08 - 09 ON 27 - 09 - 2008 DECLARING TOTAL INCOME OF RS. 1,68,84,250/ - . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 21.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 3,03,99,684/ - . AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 17.10.2011 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED T HE FOLLOWING GROUNDS: - 1. THE ID.CIT(A) HAS MATERIALLY ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE AO WHEREIN, IMPUGNED ADDITION ON ACCOUNT OF DISALLOWANCE U/S.40(A)(I) OF RS. 1,26,63,364/ - FOR THE ALLEGED FAILURE TO DEDUCT TAX U/S.195 OF THE I. T. ACT OUT OF FEES PAID FOR TECHNICAL SERVICES AND CONSULTATION AND SUPERVISION CHARGES TO NON - RESIDENTS. 1.1 IT IS RESPECTFULLY SUBMITTED AND CONTENDED THAT IN VIEW OF VARIOUS WRITTEN SUBMISSIONS MADE BEFORE THE ID. CIT(A) IN THE COURSE OF APPEAL PROCEEDI NGS, THE ID. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE DISALLOWANCE MADE BY THE AO. 1.1 THUS, THE ID. CIT(A) WAS COMPLETELY IN ERROR ON FACTS AND IN LAW IN NOT APPRECIATING THE SUBMISSIONS MADE BEFORE HIM IN THIS REGARD POSITIVELY AND THUS, FAILED TO HELD IN FAVOUR OF THE APPELLANT BY DELETING THE IMPUGNED ADDITION MADE IN THE ASSESSMENT ORDER. 2. THE ID. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE AO WHEREIN, IMPUGNED ADDITION WAS MADE OF RS.8,52,070/ - ON ACCOUNT OF TRANSFER PRICING ADJ USTMENT. 2.1 IT IS RESPECTFULLY SUBMITTED AND CONTENDED THAT IN VIEW OF DETAILED WRITTEN SUBMISSION MADE BEFORE THE ID. CIT(A) IN THE COURSE OF APPEAL PROCEEDINGS, THE ID. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITION MADE BY THE AO. 2.2 THUS, THE ID. CI T(A) WAS COMPLETELY IN ERROR ON FACTS AND IN LAW IN NOT APPRECIATING THE SUBMISSIONS MADE BEFORE HIM IN THIS REGARD POSITIVELY AND THUS, FAILED TO HELD IN FAVOUR OF THE APPELLANT BY DELETING THE IMPUGNED ADDITION MADE IN THE ASSESSMENT ORDER. 5. AT THE OUTSE T BEFORE US, LD A.R. FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE IN THE FORM OF NOTE ON DUTIES OF CONSULTANT AND PLANT SUPERINTENDENT, COPY OF CONSULTANCY AGREEMENT. HE FURTHER SUBMITTED THA T THE ADDITIONAL EVIDENCE WAS IMPORTANT AND DECISIVE EVIDENCE IN DETERMINING THE CONTROVERSY. HE ALSO PLACED ON RECORD THE DECISION OF DELHI HIGH COURT ITA NO 3103/A/11 & ITA NO. 359/A/13 . A.Y S . 2008 - 09 & 2009 - 10 3 IN THE CASE OF DIT VS. GUY CARPENTER AND CO. LTD. (2012) 346 ITR 504 (DEL) , CIT VS. DE - BEERS INDIA MINERALS PVT. LTD. (2012) 346 ITR 467 (KAR) AND DECISION OF AHMADABAD T RIBUNAL IN THE CASE OF ADANI POR T INFRASTRUCTURE LTD. (IN ITA NO. 1383/AHD/2013). HE THEREFORE SUBMITTED THAT THE AFORESAID DECISIONS AND VARIOUS OTHER DECISIONS WHICH IT WOULD LI KE TO RELY UPON AND THE ADDITIONAL EVIDENCE WHICH HAS BEEN SU BMITTED NOW BEFORE TRIBUNAL WAS NOT AVAILABLE BEFORE THE LOWER AUTHORITIES. HE THEREFORE FAIRLY CONCEDED THAT THE MATTER MAY BE REMITTED BACK TO CIT(A) FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF ADDITIONAL EVIDENCE AND CASE LAWS RELIED UPON BY IT. LD D. R. ON THE OTHER HAND OBJECTED TO THE ADDITIONAL EVIDENCE FILED BEFORE THE TRIBUNAL. HE SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO FILE THE EVIDENCES IN SUPPORT OF ITS CONTENTION BUT THOSE EVIDENCES WERE NOT FILED BEFORE THE LOWER AUTHORITIES . HE FURTHER SUBMITTED THAT ASSESSEE HAS NOT SHOWN SUFFICIENT CAUSE THAT PREVENTED IT FOR SUBMISSION OF THE EVIDENCES. HE THUS OPPOSED THE SUBMISSION OF ADDITIONAL EVIDENCE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECOR D. BEFORE US, ON BEHALF OF ASSESSEE AN APPLICATION HAS BEEN MADE FOR ADMISSION OF ADDITIONAL EVIDENCE AND IT IS SUBMITTED THAT THESE EVIDENCES WOULD BE MATERIAL AND W OULD HELP IN DECIDING THE ISSUE. CONSIDERING THE FACT THAT THE ADDITIONAL EVIDENCES WOULD HELP IN DECIDING THE ISSUE THE SAME ARE ADMITTED. HOWEVER S INCE THESE EVIDENCES WERE NOT AVAILABLE BEFORE LOWER A UTHORITIES AND ALSO THE CASE LAWS WHICH WERE RELIED UPON BY THE ASSESSEE WERE NOT CONSIDERED BY THE LOWER AUTHORITIES , WE ARE OF THE VIEW THAT IN THE IN TEREST OF JUSTICE AND FAIR PLAY, T HE ISSUES RAISED IN THE APPEAL NEEDS TO BE CONSIDERED AFRESH IN THE LIGHT OF ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE AND THE OTHER DECISIONS ON WHICH IT WOULD LIKE TO RELY UPON. WE THEREFORE REMIT THE ITA NO 3103/A/11 & ITA NO. 359/A/13 . A.Y S . 2008 - 09 & 2009 - 10 4 ISS UE TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE DECISIONS RELIED UPON BY ASSESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT A.O SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ASSESSEE SHALL ALSO CO - OPERATE BY FURNISHING PROMPTLY THE DETAILS CALLED FOR BY THE A.O. FURTHER SINCE BOTH THE PARTIES HAVE ADMITTED THAT THE ISSUE FOR A.Y. 09 - 10 IS SIMILAR TO THAT OF A.Y. 08 - 09, WE ALSO REMIT THE APPEAL FOR A.Y. 09 - 10 AND FOR SIMILAR R EASONS TO THE FILE OF A.O FOR DECIDING IT AFRESH. THUS B OTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 17 - 10 - 201 4 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD