Sundaram Clayton Ltd., CHENNAI V. ACIT, CHENNAI

ITA 429/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1070 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-03-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAN JT
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Competent authority
• Section: 14A; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER] I.T.A.NO. 429/MDS/2012 ASSESSMENT YEAR : 2008-2009 M/S SUNDARAM CLAYTON LTD NO.29, HADDOWS ROAD, CHENNAI 600 006. VS THE ASST. COMMISSIONER OF INCOME TAX COMPANY CIRCLE VI(4) CHENNAI 600 034 [PAN AAACS 4920 J] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI.R. VIJAYARAGHAVAN, ADVOCATE RESPONDENT BY : SHRI. GURU BHASHYAN, JT. CIT. DATE OF HEARING : 06-03-2013 DATE OF PRONOUNCEMENT : 11-03-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF THE CIT(A)-V, CHENNAI, DATED 26.12.2011, BY TAKING THE FOLLOWING GROUNDS OF APPEAL: THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEA LS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CAS E. 1. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N DISMISSING THE APPEAL EX PARTE WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT BEING HEARD. I.T.A.NO.429/12 :- 2 -: THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO H AVE APPRECIATED THAT THE ASSESSEE HAS FILED AN ADJOURN MENT PETITION DATED 29.11 . 2011 REQUESTING TO GRANT TIME TO FURNISH CERTIFICATE IN FORM 3CL WHICH IS TO BE REC EIVED FROM DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEAR CH (DSIR) . HE SHOULD HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE ' S REPRESENTATIVE TO PUT FORTH THEIR CASE AND DECIDED THE APPEAL ON MERITS . 2. THE COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN DENYING THE RELIEF CLAIMED U / S 35(2AB) OF THE INCOME TAX ACT AMOUNTING TO RS.3,81 ,82,364/- ON THE GROUND THAT FORM 3CL HAS NOT BEEN PRODUCED. THE COMMISS I ONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD FURNISHED THE APPROVAL LETTER GRANTIN G THE RECOGNITION U/S 35(2AB) AND HENCE OUGHT NOT TO HAVE DISALLOWED THE DEDUCTION CLAIMED UNDER THIS SECTION . 3. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF A SUM OF RS.1 , 88 , 09 , 543/- U / S 14A AS EXPENDITURE INCURRED FOR EARNING UTI INTER EST INCOME AND DIV I DEND INCOME . 4. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORDER OF AO IN TREATING THE SUM OF RS.1 , 00,66,383/- BEING THE NOTIONAL EXCHANGE FLUCTUATION GA I N AS INCOME AND TAXING THE SAME BY DENYING THE DEDUCTION CLAIMED BY THE APPELLANT. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN NOT DIRECTING THE ASSESSING OFFICER TO G I VE CREDIT FOR TDS AS CLAIMED BY THE APPELLANT FOR WHICH THE ORIGINAL TDS CERTIFICATES HAVE BEEN SUBM I TTED TO THE ASSESSING OFFICER . 6. THE COMMISSIONER OF INCOME TAX (APPEALS) ERR ED IN CONFIRMING THE LEVY OF INTEREST U/S. 234D WITHOUT APPRECIATING THAT REFUND MENTIONED AS ' REFUND ALREADY ISSUED ' AMOUNTING TO RS . 2 , 63 , 99 , 330/- WAS NEVER ISSUED TO THE APPELLANT AND HENCE OUGHT TO HAVE DELETED T HE LEVY OF INTEREST U/S 234D . 7. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N CONFIRMING THE DEMAND OF RS . 2 , 63 , 99 , 330/- AS ' REFUND ALREADY ISSUED ' WHEN NO SUCH REFUND WAS ISSUED TO THE APPELLANT. I.T.A.NO.429/12 :- 3 -: 8. THE COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF CREDIT FOR TDS CLA IMED U/S 90 AMOUNTING TO RS . 1 , 75 , 639/- IN RESPECT OF THE TAX PAID IN UNITED STATES OF AMERICA BRANCH. 9. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE LEVY OF I NTEREST U/S 234C OF THE INCOME TAX ACT OF RS . 1 , 35 , 147/- AS AGAINST RS . 43 , 985 . THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUN DS OF APPEAL BEFORE OR DURING THE HEARING. 2. AT THE OUTSET, THE AUTHORISED REPRESENTATIVE O F THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS REJECTED THE ADJOURNM ENT PETITION FILED BY THE ASSESSEE DATED 29.11.2011 REQUESTING TO GRAN T TIME TO FURNISH CERTIFICATE IN FORM 3CL WHICH HAS TO BE RECEIVED FR OM DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH (DSIR) AND DISMI SSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION APPLYING THE D ECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF CIT VS. MULTIP LAN INDIA (P) LTD (1991) 38 ITD 320 (DELHI). HE HAS SUBMITTED THAT T HE CIT(A), SHOULD HAVE GRANTED AN OPPORTUNITY TO DECIDE THE APPEAL ON MERITS. HE, THEREFORE PRAYED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) TO DECIDE THE SAME ON MERITS AFTER ALLO WING OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENT REPRESENT ATIVE OPPOSED THE REQUEST OF THE AUTHORISED REPRESENTATI VE OF THE ASSESSEE FOR RESTORING THE ISSUE BACK TO THE FILE OF THE C IT(A) FOR ADJUDICATING I.T.A.NO.429/12 :- 4 -: THE ISSUE ON THE GROUND THAT SUFFICIENT OPPORTUNITY OF HEARING WAS GRANTED BY THE ASSESSING OFFICER AS WELL AS THE CIT (A), TO THE ASSESSEE AND THE ASSESSEE DID NOT AVAIL OF THE OPPORTUNITY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILA BLE ON RECORD. IN THE INSTANT CASE, THE CIT(A) HAS DISMISSED THE APPE AL OF THE ASSESSEE AFTER REJECTING THE ADJOURNMENT PETITION F ILED BY THE ASSESSEE ON 29.11.2011 ON THE GROUND THAT IT WAS VE RY CLEAR CASE OF CALLOUS AND INDIFFERENT ATTITUDE OF THE APPELLAN T FOR NOT PAYING DUE ATTENTION TO THE APPELLATE PROCEEDING. HENCE, IT WAS OBVIOUS THAT THE ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE SAID APPEAL. IN OUR CONSIDERED OPINION, THE CIT(A) IS A QUASI-JU DICIAL AUTHORITY. IT IS A SETTLED PROPOSITION OF LAW THAT A QUASI-JUD ICIAL AUTHORITY SHOULD DISPOSE OF THE APPEAL OF THE ASSESSEE ON ME RITS ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD EVEN IN A CASE WHERE THE ASSESSEE FAILS TO PUT IN APPEARANCE ON THE DATE OF HEARING FIXED BY HIM SO THAT THE ASSESSEE IS ABLE TO MEET ITS CASE IN APPEAL BEFORE A HIGHER FORUM. OUR ABOVE VIEW FINDS SUPPORT FROM T HE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF VODAFONE ES SAR LTD VS DISPUTE RESOLUTION PANEL-II [2011] 196 TAXMAN 423 W HEREIN THE HONBLE HIGH COURT HAS HELD AS UNDER: I.T.A.NO.429/12 :- 5 -: BE IT NOTED, WHEN A QUASI-JUDICIAL AUTHORITY DEALS WITH A LIST, IT IS OBLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE REASONS AS THE SAME IS THE HEART AND SO UL OF THE MATTER AND FURTHER , THE SAME ALSO FACILITATES APPRECIATION WHEN THE ORDER IS CALLED IN QUESTION BEFORE THE SUP ERIOR FORUM . NEEDLESS TO SAY THAT THE COMPETENT AUTHORITY, WHILE PASSING THE ORDER , SHALL KEEP IN MIND THE ORDER DATED 29TH NOVEMBER , 2010 WHEREIN WE HAD DIRECTED THAT THE PERIOD FROM THE DATE OF FILING THE WRITE PETITION AND FOUR WEEKS AFTER ITS DISPOSAL SHALL STAND EXCLUDED , WHILE COMPUTING THE LIMITATION FOR THE DEPARTMENT TO PASS AN ASSESSMENT ORDER. 5. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE DISMISSAL OF APPEAL BY THE CIT(A) WAS NOT PROPER AND JUSTIF IED. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTI ES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON MONDAY, THE 11 TH OF MARCH, 2013, AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED:11 TH MARCH, 2013 KV COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR