ACIT, CC-XXIV, Kolkata, Kolkata V. M/s. Arambagh Hatcheries Ltd., Hooghly

ITA 411/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75040 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 10-03-2011
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL
• Keywords: Additional evidence; Difference of opinion; Change of opinion
• Section: 43B; 143(3); 153A; 80IB; 147; 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBL E SRI GEORGE MATHAN, JM] ITA NOS.411,249, 863,864, & 1076/KOL/2011 ASSESSMENT YEARS : 2001-02,2002-03,2004-05 & 2006-07 ( APPELLANT ) (RESPONDENT) A.C.I.T., CENTRAL CIRCLE-XXIV, -VS- M/S.ARAMBAGH H ATCHERIES LTD. KOLKATA KOLKATA (PAN AACCA 4791 P) FOR THE APPELLANT SHRI SANJAY MUKHERJEE, JCIT, SR.DR FOR THE RESPONDENT: SHRI A.K.TIBREWAL, FCA DATE OF HEARING : 28.01.2014 DATE OF PRONOUNCEMENT : 30. 01.2014. ORDER PER SHRI GEORGE MATHAN, JM I.T.A.NO.411/KOL/2011 IS AN APPEAL FILED BY THE REV ENUE AGAINST THE ORDER OF LD. C.I.T.(A)- CENTRAL-III, KOLKATA IN APPEAL NO.28 9/CC-XXIV/CIT(A)-C-III/08-09 DATED 23.12.2010 FOR ASSESSMENT YEAR 2001-02. ITA N O.249/KOL/2011 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T .(A)- CENTRAL-III, KOLKATA IN APPEAL NO.19/CC-XXIV/CIT(A)-C-III/10-11 DATED 30.11.2010 F OR ASSESSMENT YEAR 2004-05. ITA NO.863/KOL/2011 IS AN APPEAL FILED BY THE REVEN UE AGAINST THE ORDER OF LD. C.I.T.(A)-CENTRAL-III, KOLKATA IN APPEAL NO.155/CC- XXIV/CIT(A)-C-III/09-10 DATED 25.03.2011 FOR ASSESSMENT YEAR 2002-03. ITA NO.864/ KOL/2011 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)- CEN TRAL-III, KOLKATA IN APPEAL NO.156/CC-XXIV/CIT(A)-C-III/09-10 DATED 25.03.2011 FOR ASSESSMENT YEAR 2004- 05. ITA NO.1076/KOL/2011 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)- CENTRAL-III, KOLKATA IN APPEAL NO.02/CC- XXIV/CIT(A)-C-III/10-11 DATED 27.05.2011 FOR ASSESSMENT YEAR 2006-07. 2. AS THE ISSUES IN THESE APPEALS RELATE TO THE SA ME ASSESSEE AND ARE INTER RELATED ALL THE APPEALS ARE DISPOSED OF BY THIS COMMON ORDE R. ITA NOS.411,863,864,249 & 1076/KO L/2011 M/S.ARAMBAG H HATCHERIES LTD. A.YRS.2001-02,2002-03,2004-05 & 2006-07 2 3. SHRI SANJAY.MUKHERJEE, JCIT, SR.DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI A..K.TIBREWAL, FCA REPRESENTED ON BEHALF OF THE ASSESSEE ITA NOS.411,863 & 863/KOL/2011(A.YRS.2001-2,2002-03 & 2004-05): 4. IN THE REVENUES APPEAL IN ITA NOS.411,863 AND 8 64/KOL/2011 THE ISSUES RAISED ARE COMMON AS FOLLOWS :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW THE LD. CIT(A) HAS ERRED IN ANNULLING THE ASSESSMENT ORDER BY HOLDING THAT C ONDITIONS LAID DOWN IN 1 ST PROVISO BELOW SECTION 147 OF THE ACT WERE NOT SATISFIED. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ANNULLING THE ASSESSMENT ORDER WITHOUT CONSIDERING THE DISALLOWANCE MADE IN THE ASSESSMENT OF DEDUCTION CLAIMED U/S 80IB ON MERIT. 3. THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUND(S) OF APPEAL AND/OR ADDUCE ADDITIONAL EVIDENCE AT THE TIM E OF HEARING OF THE CASE. 5. THE ISSUE IS AGAINST THE ACTION OF THE LD. CIT( A) IN ANNULLING THE ASSESSMENT BY HOLDING THAT THE CONDITION LAID DOWN IN THE FIRST P ROVISO BELOW SECTION 147 OF THE ACT WERE NOT SATISFIED. 6. IT WAS SUBMITTED BY THE LD.SR.DR THAT ORIGINALL Y ASSESSMENT ORDERS HAVE BEEN PASSED U/S 143(3) OF THE ACT FOR ALL THESE ASSESSME NT YEARS. SUBSEQUENTLY THERE WAS A SEARCH ON 30.11.2004 AFTER WHICH 153A ASSESSMENTS H AD BEEN DONE ON 29.12.2006. SUBSEQUENTLY THE ASSESSMENTS WERE REOPENED U/S 147 OF THE ACT BY ISSUING NOTICE U/S 148 OF THE ACT ON 03.03.2008 ON THE GROUND THAT THE MEAT PROCESSING PLANT OF THE ASSESSEE WAS NOT LIABLE FOR DEDUCTION U/S 80IB OF THE ACT. IT WAS THE SUBMISSION THAT THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) OF T HE ACT READ WITH SECTION 147 OF THE ACT ON 31.12.2007 WHEREIN DEDUCTION U/S 80IB OF THE ACT HAD BEEN DENIED IN RESPECT OF THE MEAT PLANT BY RELYING UPON THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF RELISH FOODS 237 ITR 59 (SC).. IT WA S THE SUBMISSION THAT THE LD. CIT(A) HAD ANNULLED THE ASSESSMENT BY HOLDING THAT AS THERE HAD BEEN MULTIPLE ASSESSMENTS FOR THE SAME ASSESSMENT YEARS EARLIER, THE REOPENING WAS ONLY ON A CHANGE OF OPINION. IT WAS THE SUBMISSION THAT THE QUESTION OF THEIR BEING A CHANGE OF OPINION COULD BE THERE ONLY IF AN OPINION HAS BEEN FORMED. IT WAS THE SUBMISSION THAT IN THE ITA NOS.411,863,864,249 & 1076/KO L/2011 M/S.ARAMBAG H HATCHERIES LTD. A.YRS.2001-02,2002-03,2004-05 & 2006-07 3 REGULAR ASSESSMENTS NO OPINION HAD BEEN FORMED AND CONSEQUENTLY THE REOPENING WAS VALID. IT WAS THE SUBMISSION THE ORDER PASSED BY TH E LD. CIT(A) WAS LIABLE TO BE REVERSED. 7. IN REPLY THE LD. AR SUBMITTED THAT IN THE ASSESS MENT ORDERS EARLIER PASSED WHICH WERE SCRUTINY ASSESSMENTS THE AO CATEGORICALLY ADMI TTED THAT HE HAS VERIFIED AND EXAMINED THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT . IT IS ONLY AFTER THAT THE ASSESSEE HAD BEEN GRANTED THE DEDUCTION U/S 80IB OF THE ACT IN THE ORIGINAL ASSESSMENTS WHICH HAD BEEN DONE U/S 143(3) OF THE ACT AND U/S 153A/14 3(3) OF THE ACT. IT WAS THE SUBMISSION THAT THE REOPENING FOR ALL THE THREE ASS ESSMENT YEARS HAD BEEN DONE BEYOND FOUR YEAR LIMITATION AND THE FIRST PROVISO TO SECTI ON 147 KICKED IN. IT WAS THE SUBMISSION THAT AS NOTHING WAS SHOWN TO SHOW THAT T HE ASSESSEE HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT FOR THAT ASSESSMENT YEAR THE REOPENING WAS NOT PERMISSIBLE. IT WAS THE FURTH ER SUBMISSION THAT IN THE REGULAR ASSESSMENT THE AO HAVING ADMITTED TO HAVE EXAMINED AND VERIFIED THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT, THE REOPENING NOW DO NE WAS ONLY ON A CHANGE OF OPINION. HE VEHEMENTLY SUPPORTED THE ORDER OF LD. C IT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ORIGINAL ASSESSMENT ORDER PASSED IN THE CASE OF THE ASSESSEE CLEARLY SH OWS THAT EVEN IN THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT THE AO HAS RECORDE D THAT THE CLAIM OF DEDUCTION BY THE ASSESSEE HAS BEEN EXAMINED AND VERIFIED. IT IS ONLY AFTER THIS THE AO HAS GRANTED THE ASSESSEE DEDUCTION U/S 80IB OF THE ACT. A PERUS AL OF THE REASON RECORDED, AS ALSO THE ASSESSMENT ORDER WHICH IS THE SUBJECT MATTER OF THE APPEAL NOW SHOWS THAT NOWHERE IS THERE ANYTHING MENTIONED BY THE REVENUE TO SHOW THAT THE ASSESSEE HAS NOT DISCLOSED TRULY AND FULLY ALL MATERIAL FACTS NE CESSARY FOR ASSESSMENT. IN FACT IT IS ONLY ON THE BASIS OF THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF RELISH FOODS WHICH IS A 1999 ORDER OF THE SUPREME COURT TH E REOPENING HAS BEEN DONE. HERE IT WOULD BE WORTHWHILE TO MENTION THAT THIS JUDGEME NT OF THE HONBLE SUPREME COURT WAS AVAILABLE EVEN WHEN THE ORIGINAL ASSESSMENT WAS BEING DONE U/S 143(3) OF THE ACT. IT CANNOT BE SAID THAT THE REOPENING HAS BEEN DONE EVEN ON THE BASIS OF THE ITA NOS.411,863,864,249 & 1076/KO L/2011 M/S.ARAMBAG H HATCHERIES LTD. A.YRS.2001-02,2002-03,2004-05 & 2006-07 4 DECISION OF THE HONBLE SUPREME COURT IN SO FAR AS THE FIRST PROVISO OF SECTION 147 CLEARLY REQUIRES THAT FOR THE PURPOSE OF REOPENING AN ASSESSMENT BEYOND THE PERIOD OF FOUR YEARS FORM THE RELEVANT ASSESSMENT YEAR THERE MUST BE A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERI AL FACTS NECESSARY FOR ASSESSMENT. THIS FAILURE HAVING NOT BEEN SHOWN THE FIRST PROVISIO TO SECTION 147 GRANTS PROTECTION TO THE ASSESSEE. FURTHER THE FACT THAT AO IN THE ASSESSMEN T ORDERS PASSED U/S 153A OF THE ACT HAS SPECIFICALLY MENTIONED THAT HE HAS EXAMINED AND VERIFIED THE CLAIM OF DEDUCTIONS CLEARLY SHOWS THAT THE REOPENING IS ONLY ON THE BAS IS OF A CHANGE OF OPINION, WHICH IS ALSO NOT PERMISSIBLE IN SUCH CASE WHERE THE FAILURE ON THE PART OF THE ASSESSEE HAS NOT BEEN SHOWN. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE FINDING OF LD. CIT(A) IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERF ERENCE. 9. IN THE RESULT THE APPEALS OF THE REVENUE STAND D ISMISSED. 10. ITA NO.249/KOL/2011 AND NO.1076/KOL/2011 ARE FI LED BY THE REVENUE AGAINST THE ORDER PASSED U/S 154 OF THE ACT. 11. IN THESE TWO APPEALS THE REVENUE HAS RAISED THE FOLLOWING GROUNDS :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THEC ASS ESSEE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.62,16,840/- MA DE U/S 2(24)(X) READ WITH SECTION 36(1)(VA) OF THE ACT ON A/C OF EMPLOYEES CONTRIBUTI ON OF PF DEDUCTED FROM SALARY OF THE EMPLOYEES NOT DEPOSITED WITHIN DUE DATE. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT INVOKING THE PROVISION OF SECTION 154 WAS NOT IN ACCORDANCE WITH LAW WITHOUT PROPER APPRECIATION OF THE FACT THAT THE MI STAKE WAS APPARENT FROM THE TAX AUDIT REPORT FILED BY THE ASSESSEE WHICH IS A PART OF THE RECORD. 3. THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUND (S) OF APPEAL AND/OR ADDUCE ADDITIONAL EVIDENCE AT THE TIM E OF HEARING OF THE CASE. . 12. THE ONLY ISSUE IN THESE APPEALS ARE AGAINST THE ACTION OF LD. CIT(A) IN DELETING THE ADDITION MADE BY AO IN RESPECT OF EMPLOYEES CON TRIBUTION OF PF DEDUCTED FROM THE SALARY BEFORE DUE DATE UNDER PROVIDENT FUND ACT . 13. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF TH E AO. THE LD. AR SUBMITTED THAT THE LD. CIT(A) HAS FOLLOWED THE DECISION OF TH E HONBLE SUPREME COURT IN THE ITA NOS.411,863,864,249 & 1076/KO L/2011 M/S.ARAMBAG H HATCHERIES LTD. A.YRS.2001-02,2002-03,2004-05 & 2006-07 5 CASE OF CIT VS ALOM EXTRUSIONS LTD. 319 ITR 306. IT WAS THE FURTHER SUBMISSION THAT THE ISSUE NOW SQUARELY COVERED BY THE DECISION OF T HE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF VIJAY SHREE LTD. IN ITAT NO.24 5 OF 2011 IN G.A.NO.2607 OF 2011 DATED 7 TH SEPTEMBER, 2011 WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT IF THE EMPLOYEES CONTRIBUTION TO THE PROV IDENT FUND AND ESI IS PAID WITHIN THE DUE DATE OF FILING THE RETURN THE SAME IS ALLOW ABLE U/S 43B OF THE ACT. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE EMPLOYEES CONTRIBUTION TO PF HAS BEEN PAID BEFORE THE DUE DAT E OF FILING THE RETURN AND THIS FACT HAS NOT BEEN DISPUTED BY THE REVENUE WE ARE OF THE VIEW THAT FINDINGS OF LD. CIT(A) BEING IN CONSONANCE WITH THE DECISION OF THE HONBL E JURISDICTIONAL HIGH COURT IN THE CASE OF VIJAY SHREE LTD. REFERRED TO SUPRA WE ARE O F THE VIEW THAT THE FINDINGS OF LD. CIT(A) IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 15. IN THE RESULT THE APPEALS OF THE REVENUE STAND DISMISSED. 16. IN THE RESULT ITA NOS.411,249,863,864 AND 1076/ KOL/2011 FOR THE ASSESSMENT YEARS 2001-02, 2002-03, 2004-05 AND 2006-07 STAND D ISMISSED. . ORDER PRONOUNCED IN THE COURT ON 30.01.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 30.01.2014. R.G.(.P.S.) ITA NOS.411,863,864,249 & 1076/KO L/2011 M/S.ARAMBAG H HATCHERIES LTD. A.YRS.2001-02,2002-03,2004-05 & 2006-07 6 COPY OF THE ORDER FORWARDED TO: 1. M/S.ARAMBAGH HATCHERIES LTD., PALLISHREE, ARAMBAG, HOOGHLY. 2 A.C.I.T., CENTRAL CIRCLE-XXVI, KOLKATA 3 . CIT(A)-CENTRAL-III, KOLKATA 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES