ACIT, New Delhi V. M/s. Lakshmi Sugar Mills Co. Ltd., New Delhi

ITA 4398/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91036 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GAURAV DUDEJA
• Keywords: Opportunity of being heard
• Section: 43B; 145

Judgement Text

1 ITA NO.4398/DEL/2011 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. INTURI RAMA RAO, ACCOUNTANT MEMBER I.T.A .NO.-4398/DEL/2011 (ASSESSMENT YEAR-2008-09) ACIT, CIRCLE-4(1), ROOM NO.0407, C.R. BUILDING, I.P.ESTATE, NEW DELHI. (APPELLANT) VS M/S LAKSHMI SUGAR MILLS CO.LTD., 704, SIDDHARTHA BUILDING, 96-NEHRU PLACE, NEW DELHI-110019. PAN-AAACT0034G (RESPONDENT) APPELLANT BY SH.GAURAV DUDEJA, SR.DR RESPONDENT BY NONE ORDER PER DIVA SINGH, JM THE PRESENT APPEAL FILED BY THE REVENUE ASSAILING T HE CORRECTNESS OF THE ORDER OF THE CIT(A)-VII, NEW DELHI DATED 05.07.2011 IN 2008-09 ASSESSMENT YEAR HAS BEEN REMITTED BY THE HONBLE HIGH COURT VIDE IT S JUDGEMENT AND ORDER DATED 01.09.2014 IN ITA NO.-233/2013. BY THE SAID ORDER THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE DATED 17.07.2012 HAS BEEN SET A SIDE BY THE HONBLE HIGH COURT. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSE E DESPITE THE FACT THAT THE NOTICE HAS BEEN ISSUED ON 03.03.2015 AT THE ADDRESS GIVEN IN COLUMN NO.-11 IN THE MEMO OF APPEALS FILED BY THE REVENUE. THE REVE NUE REPRESENTED BY MR. GAURAV DUDEJA, SR. DR REFERRING TO THE JUDGEMENT OF THE HONBLE HIGH COURT SUBMITTED THAT THE ISSUE MAY NEED TO BE RESTORED TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH PRI NCIPLES LAID DOWN BY THE HONBLE HIGH COURT IN THE CASE OF THE ASSESSEE ITSE LF. IN SUPPORT OF HIS PRAYER THAT THE ISSUE MAY NEED TO GO BACK ATTENTION WAS IN VITED TO PAGE 8 OF THE JUDGEMENT OF HONBLE HIGH COURT WHICH TAKES NOTE OF THE FACT THAT RELEVANT FACTS HAVE NOT BEEN CLEARLY BROUGHT OUT. REFERRING TO THE ASSESSMENT ORDER IT WAS HIS SUBMISSION THAT THE AO HAS TAKEN A POSITION RELYING UPON THE VIEW TAKEN IN DATE OF HEARING 29.04.2015 DATE OF PRONOUNCEMENT 15 .05.2015 2 ITA NO.4398/DEL/2011 2005-06 ASSESSMENT YEAR AND THE COMMISSIONER(APPEAL S) RELYING UPON THE VIEW TAKEN BY THE ITAT IN 2005-06 ASSESSMENT YEARS GRANT ED RELIEF. THE SAID VIEW IT WAS POINTED OUT IN 2005-06 ASSESSMENT YEAR EVIDENTL Y HAS NOT BEEN APPROVED BY THE HONBLE HIGH COURT. ACCORDINGLY, IN VIEW OF THE SAME IT WAS HIS SUBMISSION THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE AO TO DECIDE THE SAME AFTER REFERRING TO NECESSARY FACTS. 2. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME, IT IS SEEN THAT THE HONBLE HIGH COURT TAKES NOTE OF THE ORDER DATED 03.12.2012 IN 2005-06 ASSESSMENT YEARS IN ITA 1288/2011 IN THE CASE OF THE ASSESSEE WHEREIN THE H ONBLE HIIGH COURT HAD REVERSE THE TRIBUNALS ORDER AND REMITTED THE ISSUE TO THE ITAT FOR WANT OF NECESSARY DISCUSSION ON FACTS. THEIR LORDSHIPS IN THE FACTS OF THE PRESENT CASE AFTER REFERRING TO THEIR EARLIER ORDER WHEREIN CONS IDERING SECTION 145A OF INCOME TAX ACT 1961 AND THE POSITION OF LAW AS EMANATING F ROM THE DECISION OF THE APEX COURT ORIENT PAPER MILLS LTD. VS. UNION OF INDIA AIR 1967 SC 1564 AND THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CI T III, PUNE VS LOKNETE BALASAHEB DESAI S.S.K. LTD. [2011] 339 ITR 288 (BOM BAY)HAD PASSED A DETAILED ORDER HOLDING THAT AS PER THE STATUTORY MANDATE OF SECTION 145 A OF THE ACT THE VALUATION OF THE CLOSING STOCK MUST INCLUDE ANY TAX , DUTY, CESS OR FEE ACTUALLY PAID OR INCURRED BY THE ASSESSEE TO BRING THE GOODS TO THE PLACE OF ITS LOCATION AND CONDITION ON THE DATE OF VALUATION WHICH ISSUE CONSIDERING THE ARGUMENT OF THE ASSESSEE HAD BEEN RESTORED FOR VERIFICATION ON FACTS. THE ASSESSEE HAD PUT UP A CLAIM THAT ON MANUFACTURE GOODS EXCISE DUTY IS PAYABLE AFTER ADJUSTMENT OF CENVAT MODVAT AND CREDIT IS ON GIVEN ON THE DATE O F REMOVAL AND NOT ON THE DATE OF MANUFACTURE. THE HONBLE HIGH COURT HAD AL SO TAKEN INTO CONSIDERATION CBDTS CIRCULAR NO. 772 DATED 23.12.1998, AND THEN HELD THAT THE FACTS NEED TO BE VERIFIED. THE POSITION REMAINS THE SAME IN THE FACTS OF THE CASE AT HAND. 3. IN THE LIGHT OF THESE ABOVE MENTIONED FACTS ON R ECORD WE FIND THAT THE SUBMISSION OF THE LD. SR. DR ON FACTS ARE CORRECT A S EVIDENTLY THE ONLY DISCUSSION MADE IN THE ASSESSMENT ORDER IS REFERENCE TO THE P OSITION TAKEN BY THE PARTIES IN 2005-06 ASSESSMENT YEAR AS IS BORNE OUT FROM THE FO LLOWING PARA OF THE ASSESSMENT ORDER AND THAT QUA THE FACTS THERE IS NO INDEPENDENT DISCUSSION BY 3 ITA NO.4398/DEL/2011 THE AUTHORITIES FOR THE YEAR UNDER CONSIDERATION. THE RELEVANT PARA IS REPRODUCED HEREUNDER:- 4. AS PER TAX AUDIT REPORT FILED WITH THE RETURN O F INCOME, EXCISE DUTY OF RS.70,87,357/- HAVE BEEN SHOWN TO PAYABLE. IT HAS BEEN OBSERVED BY THE AUDITOR OF THE ASESSEEE IN ANNEXURE A TO THE AUDIT REPORT THAT THIS AMOUNT OF EXCISE DUTY PAYABLE AS A T 31.03.2008 COMPUTED AS U/S 43B OF IT ACT, 1961 AS SAME HAS NOT BEEN PAID BEFORE SIGNING OF THIS REPORT. ANY AMOUNT PAID AFT ER SIGNING OF THIS REPORT BUT BEFORE THE LAST DATE OF OR FILING OF THE TAX RETURN WILL BE REDUCED FROM THIS AMOUNT. IN THE PRECEDING YEAR AL SO THE AMOUNT OF EXCISE DUTY SHOWN PAYABLE WAS ADDED TO THE TOTAL IN COME OF THE ASSESSEE. IT HAS BEEN STATED BY THE AR OF THE ASSE SSEE THAT IN A.Y. 2005-06 WHEN SIMILAR ADDITION WAS MADE, THE SAME HA S BEEN DELETED BY THE CIT(A). HE HAS HOWEVER, ADMITTED THAT THIS ISSUE HAS BEEN TAKEN TO THE ITAT BY THE DEPARTMENT AND THE DECISIO N OF THE HONBLE ITAT IS STILL PENDING. IN THESE CIRCUMSTANCES, SIN CE THE ISSUE IS PENDING ADJUDICATION BEFORE THE HONBLE ITAT, THE A MOUNT OF EXCISE DUTY IS DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSESSEE ON THE SAME LINE AND FOR THE SAME REASONS AS GIVEN IN PRECEDING ASSESSMENT YEARS. 4. ACCORDINGLY IN THE AFORE-SAID FACTUAL POSITION F OR WANT OF NECESSARY DISCUSSION ON THE ISSUE AT HAND, WE DEEM IT APPROPR IATE TO RESTORE THE SAME BACK TO THE FILE OF THE AO WITH THE DIRECTION TO DE CIDE THE ISSUE AFRESH IN THE LIGHT OF THE DIRECTIONS GIVEN BY THE HONBLE HIGH COURT I N 2005-06 ASSESSMENT YEAR.. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE THE PASSING OF THE ORDER. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLOW ED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH OF MAY 2015. SD/- SD/- (INTURI RAMA RAO) (DIVA SINGH) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 15 /05/2015 *AMIT KUMAR/R.NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI 4 ITA NO.4398/DEL/2011 DATE 1. DRAFT DICTATED ON 30.04.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 30.04.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30.04.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 30.04.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.