ACIT, Uttrakhand V. M/s. Shanti Refrigeration Industries Pvt. Ltd., Haldwani

ITA 3840/DEL/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3967 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KOUSHLENDRA TIWARI
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A.NO.2004/DEL/2012 A.Y. : 2008-09 INCOME TAX OFFICER, MANDI SAMITI PARISAR, POST: BAGWARA, KICHHA ROAD, RUDRAPUR, DISTT. UDHAM SINGH NAGAR, UTTARAKHAND 263153 VS. M/S SHANTI REFREGERATION INDUSTRIES, PLOT NO. 27 & 28, DISTRICT: UDHAM SINGH NAGAR, UTTARAKHAND (PAN: ABCFS1076R) (APPELLANT) (RESPONDENT) I.T.A.NO.3840/DEL/2012 A.Y. : 2009-10 ASSTT. COMMISSIONER OF INCOME TAX, INCOME TAX OFFICE, HALDWANI DISTT. NAINITAL, UTTARAKHAND 263139 VS. M/S SHANTI REFREGERATION INDUSTRIES PVT. LTD. PANTNAGAR (SIDCUL), HALDWANI (PAN: AALCS3426J) (APPELLANT) (RESPONDENT) I.T.A.NO.5530/DEL/2013 A.Y. : 2010-11 DY. COMMISSIOINER OF INCOME TAX, INCOME TAX OFFICE, HALDWANI DISTT. NAINITAL, UTTARAKHAND 263139 VS. M/S SHANTI REFREGERATION INDUSTRIES PVT. LTD. PANTNAGAR (SIDCUL), HALDWANI (UTTARAKHAND) (PAN: AALCS3426J)) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. KOUSHLENDRA TIWARI, SR. DR ASSESSEE BY : SH. RAHUL KHARE, ADV. ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THESE 03 APPEALS AGAINST THE RESPECTIVE IMPUGNED ORDERS PASSED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)-II, DEHRDAUN RELEVANT TO ASSESSMENT YEARS 2008-09 TO 2010-11. 2 SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMM ON AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPO SED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN ITA NO. 2004/DEL/2012 (AY 2008-09) READ AS UNDER:- I) IN THE FACT AND CIRCUMSTANCE OF THE CASE, THE LD . CIT (A) HAS ERRED IN LAW & ON FACTS IN ALLOWING DEDICATION U/S 8OIC THE LT. ACT 1961 TO THE ASSESSEE WITHOUT APPRECIATING THE CLEAR FINDING GIVEN BY THE ASSESSI NG OFFICER ON THE BASIS OF PHYSICAL INSPECTION DURING SURVEY PROCEEDINGS THAT THE MACHINERY INSTALLED WAS OLD AN D PREVIOUSLY USED TO SUCH EXTENT WHICH MAKES THE ASSE SSES INELIGIBLE FOR DEDUCTION U/S801C AS PER THE PROVISI ONS CONTAINED IN THE SAID SECTION. (II) LD.CIT (A) ALSO ERRED IN LAW & ON FACT IN ALLO WING DEDUCTION U/S 80LC TO THE ASSESSEE ON THE BASIS OF CERTIFICATE FROM A CHARTERED ENGINEER WITHOUT QUEST IONING THE REASON AS TO WHY SUCH CERTIFICATE WAS NOT PRODU CTION BEFORE THE ASSESSING OFFICER INSPITE OF AMPLE OPPOR TUNITY GIVEN BY HIM TO THE ASSESSEE DURING ASSESSMENT PRECEDING. (III) LD.CIT (A) ALSO ERRED IN LAW & ON FACTS IN AL LOWING RELIEF TO THE ASSESSEE WITHOUT CONSIDERING THE DISCREPANCIES IN THE BILLS. AND CERTIFICATE OF CHAR TERED ENGINEER FURNISHED BY THE ASSESSEE WHEREAS THE ASSE SSING OFFICER IN THE ASSESSMENT ORDER AS WELL AS DURING APPELLATE PROCEEDING HAD CLEARLY REMARKED REGARDING THE DISCREPANCIES CONTAINED THEREIN WHICH EVENTUALLY MA KE THE PLEA OF THE ASSESSEE INCORRECT. 3 (IV) LD.CIT(A) ALSO ERRED IN LAW & ON FACTS IN ADM ITTING THE ADDITIONAL EVIDENCE IN COMPLETE DISREGARD OF THE FA CT THAT NONE OF THE FOUR CIRCUMSTANCES UNDER RULE 46A WERE PRESENT IN THE CASE TO WARRANT ADMITTANCE OF FRESH EVIDENCE FURNISHED BY THE ASSESSES FOR THE FIRST TI ME IN APPELLATE PROCEEDING. (V) ON FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT( A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING APPEAL ON THE ISSUE OF DISALLOWANCE OF DEPRECIATION PARTICULARLY IN VIE W OF THE FACT THAT THE PLANT & MACHINERY WAS OLD AND PREVIOU SLY USED. (VI) ANY OTHER GROUNDS RAISED DURING THE PROCEEDING S OF APPEAL. 3. THE GROUNDS RAISED IN ITA NO. 3840/DEL/2012 (A Y 2009-10) READ AS UNDER:- 1. THAT THE LD. CIT(A)-II, DEHRADUN HAS ERRED IN LA W AND ON FACT IN ALLOWING DEDUCTION U/S. 80IC OF THE I.T. AC T WITHOUT APPRECIATING THE CLEAR FINDING ON THE BASIS OF PHYSICAL INSPECTION DURING SURVEY PROCEEDINGS THAT THE MACHINERY INSTALLED WAS OLD AND PREVIOUSLY USED TO SUCH EXTENT WHICH MAKES THE ASSESSEE INELIGIBLE FOR DEDU CTION U/S. 80IC OF THE I.T. ACT, 1961 AS PER THE PROVISIO N CONTAINED IN THE SAID SECTION. 2. THAT THE ORDER OF THE LD. CIT(A), IS AGAINST THE SPIRIT OF LEGISLATURE AND THE ORDER OF THE AO IS LIABLE TO BE RESTORED. 3. THAT THE APPELLANT CRAVES, LEAVE TO ADD, AFTER, AMEND OR VARY FROM THE ABOVE GROUNDS OF APPEAL. 4. THE GROUNDS RAISED IN ITA NO. 5530/DEL/2013 (AY 2010-11) READ AS UNDER:- 4 1. THAT THE LD. CIT(A)-II, DEHRADUN HAS ERRED IN LA W AND ON FACT IN ALLOWING DEDUCTION U/S. 80IC OF THE I.T. AC T WITHOUT APPRECIATING THE CLEAR FINDING ON THE BASIS OF PHYSICAL INSPECTION DURING SURVEY PROCEEDINGS THAT THE MACHINERY INSTALLED WAS OLD AND PREVIOUSLY USED TO SUCH EXTENT WHICH MAKES THE ASSESSEE INELIGIBLE FOR DEDU CTION U/S. 80IC OF THE I.T. ACT, 1961 AS PER THE PROVISIO N CONTAINED IN THE SAID SECTION. 2. THAT THE ORDER OF THE LD. CIT(A), IS AGAINST THE SPIRIT OF LEGISLATURE AND THE ORDER OF THE AO IS LIABLE TO BE RESTORED. 3. THAT THE APPELLANT CRAVES, LEAVE TO ADD, AFTER, AMEND OR VARY FROM THE ABOVE GROUNDS OF APPEAL. 5. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 6. AT THE TIME OF HEARING, LD. DR HAS RELIED UPON T HE ORDER OF THE AO AND REITERATED THE GROUNDS OF APPEAL. HE STATED THA T LD. CIT(A) HAS WRONGLY ADMITTED THE ADDITIONAL EVIDENCES IN COMPLETE DISR EGARD OF THE FACT THAT NONE OF THE FOUR CIRCUMSTANCES UNDER RULE 46A WERE PRESENT IN THE CASE TO WARRANT ADMITTANCE OF FRESH EVIDENCE FURNISHED BY T HE ASSESSE FOR THE FIRST TIME IN APPELLATE PROCEEDINGS, WHICH IS AGAINST THE PROVISIONS OF LAW. HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE RAISED IN A SSESSMENT YEAR 2008-09 MAY BE SET ASIDE TO THE FILE OF AO TO EXAMINE AND A DJUDICATE THE SAME AFRESH, AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT(A). HE FURTHER STATED THAT SIMILARLY IN THE A SSESSMENT YEARS 2009-10 & 2010-11 THE IDENTICAL AND SIMILAR ISSUES HAVE BEE N RAISED BEFORE THE LD. CIT(A) AND LD. CIT(A) BY FOLLOWING THE ORDER IN HI S APPEAL NO. 98/CIT(A)- 5 II/2010-11 DATED 21.2.2012 FOR ASSESSMENT YEAR 2008 -09 HAS ALLOWED THE CLAIM OF THE ASSESEE AND DECIDED THE ISSUE IN DISPU TE IN FAVOUR OF THE ASSESSEE. HENCE, HE REQUESTED THAT ISSUES INVOLVED IN ASSESSMENT YEARS 2009-10 & 2010-11, RAISED BEFORE THE TRIBUNAL MAY ALSO BE SET ASIDE TO THE FILE OF AO WITH THE SIMILAR DIRECTIONS AS REQUESTED AFORESAID IN RESPECT OF ASSESSMENT YEAR 2008-09. 7. ON THE CONTRARY, LD. COUNSEL OF THE ASSESSEE HAS RELIED UPON THE ORDER PASSED BY THE LD. CIT(A) AND STATED THAT THE ASSESS EE HAS FILED ALL THE EVIDENCES BEFORE THE AO AS WELL AS BEFORE THE LD. C IT(A) AND REQUESTED TO UPHOLD THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2008-09, WE ARE OF THE CONSIDERED V IEW THAT SINCE THE ASSESSMENT WAS COMPLETED AFTER GIVING PROPER OPPORT UNITIES, SUFFICIENT TIME AND AFTER TAKING INTO CONSIDERATION ALL THE WRITTE N / DOCUMENTS, THEREFORE, ADMISSION OF ADDITIONAL EVIDENCE AT THE APPELLATE S TAGE IS NOT JUSTIFIED. WE ALSO NOTE THAT ASSESSEE HAS FILED THE ADDITIONAL EV IDENCES ONLY BEFORE THE LD. CIT(A) AND THE LD. CIT(A) IN VIOLATION OF RULE 46A OF I.T. RULES, 1962 HAS ADMITTED THE ADDITIONAL EVIDENCES WHICH IS CONTRARY TO PRINCIPLES OF NATURAL JUSTICE. BUT, IN THE INTEREST OF JUSTICE, WE ARE SE TTING ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO FOR FRESH CONSIDERATI ON, AS PER LAW, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE ASSESSEE IS AT LIBERTY TO PRODUCE ANY EVIDENCE/ ADDITIONAL EVIDENC ES FOR SUBSTANTIATING ITS CLAIM BEFORE THE ASSESSING OFFICER AND FULLY COOPER ATE WITH HIM. 6 9. SINCE WE HAVE ALREADY SET ASIDE THE ISSUES IN D ISPUTE TO THE FILE OF AO FOR THE ASSESSMENT YEAR 2008-09, AS AFORESAID, FOR FRESH ADJUDICATION, THEREFORE, THE ISSUES INVOLVED IN ASSESSMENT YEAR 2 009-10 & 2010-11 ARE ALSO SET ASIDE TO THE FILE OF AO WITH THE SIMILAR D IRECTIONS, AS AFORESAID, BEING THE ISSUES IDENTICAL AND SIMILAR AND ALSO DUE TO TH E FACT THAT LD. CIT(A) HAS FOLLOWED HIS FINDING OF ASSESSMENT YEAR 2008-09. 10. IN THE RESULT, ALL THE 03 APPEALS OF THE REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/10/2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 05/10/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES