M/s. Hindustan Vegetable Oils Corp. Ltd., New Delhi V. ACIT, New Delhi

ITA 4965/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4366 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN CHANDRA
• Assessee Lawyers: ANKIT SAINI
• Keywords: Depreciation; Principle of natural justice; Unabsorbed depreciation
• Section: 143(3); 234B; 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES C : DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA.NO.4965/DEL/2013 ASSESSMENT YEAR 2009-2010 HINDUSTAN VEGETABLES OILS CORP.LTD. VS. ACI T 64-65, SATGURU RAM SINGH MARG, CIR CLE-12(1) KIRTI NAGAR, NEW DELHI NEW DELHI. PAN AAACH0631D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANKIT SAINI, CA REVENUE BY : SHRI NAVEEN CHANDRA, CIT (DR) DATE OF HEARI NG : 22.08.2017 DATE OF ORDER : 22.09.2017 ORDER PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, HINDUSTAN VEGETABLES OILS CORP. LTD. HEREINAFTER REFERRED TO AS ASSESSEE BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 28.2.2013 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS), XV, NEW 2 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT DELHI FOR THE ASSTT. YEAR 2009-10 ON THE GROUNDS I NTERALIA THAT :- 1. THE LEARNED ERR (APPEAL) AND ASSESSING OFFICER HAV E ERRED BOTH ON FACT AND IN LAW IN DISALLOWING THE INTEREST OF RS.19,40,28,714/-, WHICH IS A NORMAL BUSINESS EXPEN DITURE FORMING PART OF THE OPERATION OF THE COMPANY. 2. THE LEARNED CIT (APPEAL) HAD ERRED IN CONFIRMING TH E DISALLOWANCE OF THE INTEREST TO THE EXTENT OF RS. 16,61,03,405/- WHICH IS AGAINST THE NATURAL JUSTICE AND WRONG APPLICATION OF THE FACTS OF THE CASE. 3. THE LEARNED CIT (APPEAL) HAS FAILED TO TAKE INTO AC COUNT THAT THE LOAN OF RS. 70 CRORES TAKEN TO IMPLEMENT VOLUNT ARY SEPARATION SCHEME (VSS) WAS FOR THE ENTIRE COMPANY AS A WHOLE AND NOT FOR ANY PARTICULAR UNIT. HENCE THE DISALLOWANCE OF INTEREST EXPENSE OF RS 14,87,50,000 IS UNLAWFUL AND UNWARRANTED. 4. THE LEARNED CIT (APPEAL) HAS ERRED IN COMING TO THE CONCLUSION THAT THE UNITS WHICH WERE CLOSED WERE FO RMING PART AND PARCEL OF THE APPELLANT COMPANY AND HAVE C OMMON MANAGEMENT, COMMON FINANCE AND ABOVE ALL, THE BALAN CE SHEET IS PREPARED AS ONE BALANCE SHEET FOR DIFFEREN T UNITS UNDER THE SAME MANAGEMENT. 5. THE LEARNED CIT (APPEAL) HAD ERRED IN DISALLOWING A N AMOUNT OF RS. 50,53,640 AND RS 1,22,99,765 AS INTER EST ON WORKING CAPITAL LOAN HOLDING IT TO BE ATTRIBUTABLE TO 7 CLOSED UNITS OF THE ASSESSEE WHICH IS HIGHLY CONDEMNABLE. 6. THE LEARNED CIT (APPEAL) WHILE MAKING THIS DISALLOW ANCE HAD COMPLETELY IGNORED THE FACT THAT THE LOAN WAS S ECURED BY THE CORPORATE OFFICE. HE HAS FURTHER MIS- INTERP RETED TESTS LAID DOWN BY THE APEX COURT IN CIT V PRITHVI INSURA NCE CO. TO ARRIVE AT A WRONG CONCLUSION THAT ALL UNITS WERE SE PARATE BUT 3 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT ACTUALLY THERE EXIST INTERLACING WITH COMMON MANAGE MENT AND COMMON FUNDS. ACCORDINGLY, THE INTEREST ON WORK ING CAPITAL CANNOT BE BIFURCATED TOWARDS THE RUNNING UN ITS AND THE CLOSED UNITS. 7. THE CIT(A) HAD ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY WAY OF TAXING CAPITAL GAINS ON THE ASS UMPTION THAT THERE WAS A TRANSFER WITHIN THE MEANING OF SEC TION 2(47) OF THE ACT. 8. THE WORKING OF LONG TERM CAPITAL GAIN BY THE CIT(A PPEAL) IS WRONG AND REQUIRE REVISION. 9. IT IS CONTENDED THAT THE QUANTUM OF CONSIDERATIO N IS UNCERTAIN AND NOT CAPABLE OF DETERMINATION DURING T HE RELEVANT YEAR UNDER APPEAL AND ACCORDINGLY NO CAPIT AL GAIN WOULD BE BROUGHT TO TAX IN THE HANDS OF THE APPELLA NT. 10. THE LEARNED CIT (APPEAL) HAS WRONGLY INTERPRETED AN D APPLIED THE PROVISIONS 'OF SECTION 53A OF TRANSFER OF PROPERTY ACT 1882 TO STATE THAT THERE WAS A TRANSFER WITHIN THE MEANING OF SECTION 2(47) THEREBY TAXING LONG TERM C APITAL GAINS. 11.THE LEARNED CIT (APPEAL) HAS IGNORED THE FACT TH AT LEGALLY THE LAND HAD NOT BEEN HANDED OVER TO DMRC AND FURTHERMORE SALE CONSIDERATION FIGURE WAS ALSO NOT ARRIVED AT DURING THE RELEVANT YEAR UNDER APPEAL. 12. THE LEARNED CIT (APPEAL) HAS WRONGLY HELD SALE CONSIDERATION TO BE DEFINITE WHEREAS THE SAME WAS N EVER DEFINED. AN AD HOC PAYMENT OF RS 1 CRORE WAS GIVEN BY DMRC TO THE APPELLANT; THE SAME WAS SHOWN AS CURREN T LIABILITIES IN THE BOOKS. THEREFORE LEARNED CIT'S A TTEMPT TO TAKE THE SAME AS SALE CONSIDERATION IS HIGHLY PREJU DICIAL AND WRONG IN LAW. 13. THE APPELLANT CLAIMS THAT THE HUGE UNABSORBED BUSIN ESS 4 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT LOSS SHOULD BE QUANTIFIED AND CARRY FORWARD FOR SET TING IT OFF AGAINST THE FUTURE INCOME IN ACCORDANCE WITH TH E PROVISIONS OF THE ACT. 14 IT IS CONTENDED THAT THE CURRENT YEAR BUSINESS LOSS IF ANY AFTER THE EFFECT OF THE RELIEF BY HON'BLE ITAT, SUC H CURRENT YEAR LOSS SHOULD BE ALLOWED TO BE SET OFF AGAINST T HE LONG TERM CAPITAL GAINS AS COMPUTED BY THE CIT(A). 15. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, IT IS CONTE NDED THAT UNABSORBED DEPRECIATION RELATING TO PAST YEARS SHOULD BE QUANTIFIED AND ALLOWED TO BE SET OFF AGAI NST THE CAPITAL GAINS FOR THE CURRENT YEAR AS COMPUTED BY T HE CIT(A). 16 THE PROVISIONS OF SECTION 234B AND 234D IS NOT APPLICABLE IN THE INSTANT CASE AND ACCORDINGLY CHARGE OF INTER EST IS WRONG AND BAD IN LAW. 17. WITHOUT PREJUDICE TO THE ABOVE CONTENTIONS IT IS CONTENDED THAT THE INTEREST CALCULATED BY THE ASSES SING OFFICER IS WRONG AND REQUIRE REVISION. 18. IT IS CONTENDED THAT THE COMPUTATION OF INCOME IS WRONG AND BAD IN LAW. 19. IT IS CONTENDED THAT THE TAX CALCULATIONS ARE WRONG AND REQUIRE REVISION. 20 THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. CONDENSED GROUNDS OF APPEAL 1. AS PER POINT NO. 1 TO 6 OF THE ORIGINAL GROUNDS OF APPEAL, THE LEARNED CIT(A) HAVE ERRED BOTH ON THE FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF THE INTEREST TO THE EXTENT OF RS. 16,61,03,405/-. IT IS AGAINST THE NATURAL JUSTI CE AND WRONG APPLICATION OF THE FACTS. THE LD. CIT(A) WHIL E MAKING THIS DISALLOWANCE HAD COMPLETELY IGNORED THE FACT T HAT THE LOAN WAS SECURED BY THE CORPORATE OFFICE. THERE EXI ST A 5 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT INTERLACING WITH COMMON MANAGEMENT AND COMMON FUND. INTEREST ON WORKING CAPITAL CANNOT BE BIFURCATED TO WARDS THE RUNNING UNITS AND THE CLOSED UNITS. 2. AS PER POINT 7 TO 12 OF THE ORIGINAL GROUNDS OF APP EAL, THE LEARNED CIT(A) HAD ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY WAY OF TAXING CAPITAL GAIN ON THE ASSU MPTION THAT THERE WAS A TRANSFER WITHIN THE MEANING OF SEC TION 2(47). FURTHER LD. CIT(A) HAS NO JURISDICTION TO AS SESS A NEW SOURCE OF INCOME WHICH IS NOT DISCLOSED EITHER IN T HE RETURN OF INCOME OR IN THE ASSESSMENT ORDER. 3. ALL REMAINING POINTS I.E 13 TO 20 ARE SAME WHICH AR E MENTIONED IN THE ORIGINAL GROUNDS OF APPEAL. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE :- THE ASSESSEE COMPANY IS A PUBLIC SECTOR UNDERTAKING , WHICH SUBSEQUENTLY APPROACHED BIFR, WHICH HAS ORDERED VIDE ORDER DATED 7.12.2001 THAT I N THE PUBLIC INTEREST THIS COMPANY MAY BE WOUND UP. HOWEVER, THE ISSUE OF WINDING UP IS STILL PENDING BEFORE DELHI HIGH COURT . DURING THE YEAR UNDER ASSESSMENT ONLY ONE UNIT OF THE ASSESSEE COMPANY NAMELY BREAD AND BREAKFAST UNIT (BFF) IS OPERATIONA L. 3. DURING THE ASSESSMENT PROCEEDINGS, AO NOTICED TH AT THE ASSESSEE HAS CLAIMED EXPENDITURE ON ACCOUNT OF INTE REST PAYABLE TO THE GOVT. OF INDIA ON WORKING CAPITAL FU NDS 6 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT BORROWED FROM TIME TO TIME IN THE EARLIER YEARS. AO OBSERVED THAT SINCE MAJORITY OF THE LOAN PERTAINS TO UNITS W HICH HAVE BEEN CLOSED THE EXPENDITURE IS RELATED TO DISCONTIN UED BUSINESS AND IS NOT ALLOWABLE EXPENDITURE AGAINST THE BUSINE SS OF BFF UNIT AND CONSEQUENTLY MADE AN ADDITION OF RS.19,40, 28,714/- TO THE TOTAL INCOME OF THE ASSESSEE COMPANY AND THE REBY ASSESSED THE TOTAL INCOME AT RS.3,36,20,560/-. 4. ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A) BY WAY OF FILING OF THE APPEAL. LD.CIT(A) ALLOWED PROPORTIONA TE RELIEF TO THE ASSESSEE BY REDUCING THE TOTAL DISALLOWANCE TO RS.16,61,03,405/- AS AGAINST RS.19,40,28,714/- MADE BY THE A.O. BUT FURTHER MADE AN ADDITION ON ACCOUNT OF LON G TERM CAPITAL GAIN TO THE TUNE OF RS.92,52,933/-.SUBSEQUE NTLY LD.CIT(A) U/S154 / 143 (3) /250 ALLOWED THE INDEXA TION BENEFIT AND BENEFIT OF CARRY FORWARD LOSS TO THE ASSESSEE. FEELING AGGRIEVED THE ASSESSEE HAS COME UP BEFORE THE TRIBU NAL BY IMPUGNING THE ORDER PASSED BY LD.CIT(A) 7 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE S OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. ASSESSEE COMPANY BY MOVING AN APPLICATION SOUGHT TO RAISE ADDITIONAL GROUNDS TO THE FOLLOWING EFFECTS : - 1. IT IS CONTENDED THAT THE CIT(A) HAS NO JURISDICTIO N TO ASSESS A NEW SOURCE OF INCOME WHICH IS NOT DISCLOSE D EITHER IN THE RETURN OF INCOME OR IN THE ASSESSMENT ORDER. 2. IT IS ALSO CONTENDED THAT CIT(A) HAS NO JURISDICTIO N TO CREATE/INTRODUCE A NEW HEAD OF INCOME AND MAKE ADDITION ON IT. 7. KEEPING IN VIEW THE FACTS THAT ADDITIONAL GROUNDS R AISED BY THE THE ASSESSEE, THOUGH FOR THE FIRST TIME BEFO RE THE TRIBUNAL, ARE ALLOWED AS THE SAME ARE MERELY QUESTI ON OF LAW WHICH CAN OTHERWISE BE TAKEN CARE OF BY THE TRIBUNA L, THE APPLICATION FOR ADDITIONAL GROUNDS IS ALLOWED. 8 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT GROUND NO.1 :- 8. UNDISPUTEDLY AO HAS DISALLOWED INTEREST OF RS.19,40,28,714/- AND THEREAFTER LD.CIT(A) ALLOWED INTEREST OF RS. 2,79,25,309/- AND THE ASSESSE COMPANY IS BEFORE THE TRIBUNAL FOR THE BALANCE DISALLOWANCE OF RS.1,66,03 ,405/-. 9. THE FIRST CONTENTION RAISED BY LD.AR FOR THE AS SESSEE IS THAT A MAJOR COMPONENT OF THE INTEREST CLAIMED BY T HE ASSESSEE VIZ RS. 14,87,50,000/- IS ON ACCOUNT OF LOAN TAKEN FROM THE GOVT. IN THE YEAR 2000-2001 FOR MAKING THE PAYMENT TO THE EMPLOYEES UNDER VOLUNTARY RETIREMENT SCHEME (VRS). THERE IS NO DISPUTE THAT THE PRINCIPAL LOAN OF RS. 70,00,00, 000/- WAS TAKEN BY THE ASSESSEE. AO MERELY DISALLOWED THE INT EREST ON THE SOLE GROUND THAT THE INTEREST CLAIMED DOES NOT PERTAIN TO THE EXISTING BUSINESS OF THE ASSESSEE AS THE ASSESS EE IS CONTINUING WITH ONLY ONE UNIT I.E. BFF UNIT. 10. IN THE BACKDROP OF THE AFORESAID FACTS AND CIR CUMSTANCES THE QUESTION ARISES FOR DETERMINATION IS 9 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT AS TO WHETHER THE INTEREST PAID BY THE ASSESSEE AND DISALLOWED BY THE A.O. / CIT(A) IS OF REVENUE NATURE AND AS SUCH ALLOWABLE EXPENDITURE AS CONTENDED BY THE ASSESSEE COMPANY. 11. UNDISPUTEDLY DURING ASSTT. YEAR 2012-13 LD. CIT (A) HAS ALLOWED THE INTEREST OF RS.20,29,38,031/- BEING INT EREST ON THE LOAN FROM GOVT. OF INDIA BY FOLLOWING THE DECISION RENDERED BY COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE BEARING ITA NO. 212/15-16 FOR ASSTT. YEAR 2005-06. WHEN THE INTEREST ON THE SAME COMPONENT OF LOAN TAKEN BY THE ASSESSEE COMPANY FROM GOVT. OF INDIA FOR DAY TO DAY RUNNING OF THE COMPANY AND THE LOAN REPAYABLE ON INTEREST HAS BEEN ALLOWED IN ASSTT. YEAR 2005-06 AND 2012-13, THERE IS NO GRO UND TO DISALLOW THE INTEREST CLAIMED BY THE ASSESSEE DURIN G THE YEAR UNDER ASSESSMENT. MOREOVER, THE REVENUE ITSELF HAS NOT CHALLENGED THE ORDER PASSED BY THE LD.CIT(A) IN ASS ESSEES OWN CASE FOR ASSTT. YEAR 2012-13 BY FOLLOWING ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL PASSED IN ASSESSEE S OWN CASE 10 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT FOR ASSTT. YEAR 2005-06 (SUPRA), DISALLOWANCE OF IN TEREST FOR THE YEAR UNDER ASSESSMENT IS NOT SUSTAINABLE. 12. HONBLE BOMBAY HIGH COURT IN CASE CITED AS BHOR INDUSTRIES 264 ITR 180 (BOM) HELD THAT VRS EXPENDITURE WAS INCURRED TO SAVE THE EXPENSES AND IT WAS TO BE ALLOWED IN ITS ENTIRETY IN THE YEAR IN WHICH IT WAS INCURRED A ND EXPENDITURE COULD NOT BE SPREAD OVER THE NUMBER OF YEARS AND AS SUCH THE ALLOWABLE EXPENDITURE IN THE INSTANT CASE AS THE MA JOR COMPONENTS OF THE INTEREST CLAIMED BY ASSESSEE I.E . RS. 14,87,50,000/- IS ON ACCOUNT OF LOAN TAKEN FROM THE GOVT. OF INDIA FOR MAKING PAYMENT TO THE EMPLOYEE UNDER VOLU NTARY RETIREMENT SCHEME (VRS). SO CERTAINLY THIS IS ALLOW ABLE EXPENDITURE. 13. FURTHERMORE WHEN WINDING UP PROCEEDINGS ARE UNDISPUTEDLY PENDING BEFORE THE HONBLE HIGH COURT LOAN TAKEN BY THE ASSESSEE COMPANY IS TO BE TREATED AS A LOAN TO RUN THE ENTIRE BUSINESS AND THE INTEREST COMPONENT CAN NOT BE RESTRICTED TO BFF UNIT AS HAS BEEN DONE BY AO/CIT(A ). SO THERE 11 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT IS NOT IOTA OF EVIDENCE OF RECORD THAT THE LOAN TAK EN ON WHICH INTEREST HAS BEEN CLAIMED AND DISALLOWED BY THE RE VENUE WAS NOT UTILIZED FOR RUNNING DAY TO DAY BUSINESS OF THE COMPANY AND THE LOAN IS REPAYABLE ALONGWITH INTEREST AND AS SU CH ARE REVENUE EXPENSES FOR ALL INTENTS AND PURPOSES SO WE HEREBY DELETE THE ADDITION ON ACCOUNT OF INTEREST TO THE T UNE OF RS. 1,661,03,405/- BY DETERMINING THE GROUND NO. 1 IN F AVOUR OF THE ASSESSEE COMPANY. GROUND NO. 2 AND ADDITIONAL GROUND NO. 1,2 14. UNDISPUTEDLY NEITHER ASSESSEE COMPANY HAS MADE CLAIM OF CAPITAL GAIN IN ITS RETURN OF INCOME NOR A.O. HA S MADE ANY ADDITION ON ACCOUNT OF CAPITAL GAIN. LD. AR FOR THE ASSESSEE CONTENDED THAT THE LD. CIT(A) HAS NO JURISDICTION T O MAKE ADDITION ON ACCOUNT OF CAPITAL GAIN AND RELIED UPON FULL BENCH DECISION RENDERED BY HON'BLE DELHI HIGH COURT IN TH E CASE CITED AS : CIT VS. SARDARI LAL AND CO. (DHC FULL BENCH) 251 ITR 864 (DELHI) 12 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT 15. SO THE FIRST LEGAL QUESTION ARISES FOR DETERMIN ATION IN THIS CASE AS TO WHETHER LD. CIT(A) WAS EMPOWERED TO MAKE ADDITION OF RS. 92,52,933/- ON ACCOUNT OF LONG TER M CAPITAL GAIN PARTICULARLY WHEN A.O. HAS NOT MADE AN Y SUCH ADDITION BY CONSIDERING THE ISSUE IN QUESTION. 16. HON'BLE DELHI HIGH COURT IN JUDGMENT CIT VS. S ARDARI LAL & COMPANY (FULL BENCH) 251 ITR 864 WHILE DECIDING THE IDENTICAL ISSUE HELD AS UNDER :- LOOKING FROM THE AFORESAID ANGLES, THE INEVITABLE CONCLUSION IS THAT WHENEVER THE QUESTION OF TAXABILITY OF INCOME FROM A NEW SOURCE OF INCOME IS CONCERNED, WHICH HAD NOT BEEN CONSIDERED BY THE ASSESSING OFFICER , THE JURISDICTION TO DEAL WITH T HE SAME IN APPROPRIATE CASES MAY BE DEALT WITH UNDER SECTION 147/148 OF THE ACT AND SECTION 263 OF THE ACT, IF REQUISITE CONDITIONS ARE FULFILLED. IT IS INCONCEIVABLE THAT IN THE PRESENCE OF SUCH SPECIFIC PROVISIONS, A SIMILAR POWER IS AVAILABLE TO THE FIR ST APPELLATE AUTHORITY. THAT BEING THE POSITION, THE DECISION IN UNION TYRES CASE (1999)240 ITR 556 OF THE COURT EXPRESSES THE CORRECT VIEW AND DOES NOT NEED RECONSIDERATION. THIS REFERENCE IS ACCORDINGLY DISPOSED OF. 13 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT 17. WHEN UNDISPUTEDLY THE ISSUE AS TO THE TAXABILIT Y OF ASSESSEE COMPANY ON ACCOUNT OF LONG TERM CAPITAL GA IN HAS NOT BEEN CONSIDERED BY THE A.O. BY MAKING ANY SUCH ADDI TION WHILE COMPLETING ASSESSMENT U/S 143(3) WHICH IS ENTIRELY FROM A NEW SOURCE OF INCOME, LD. CIT(A) HAS NO JURISDICTION TO MAKE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN EXCEP T BY INVOKING PROVISIONS CONTAINED U/S 263 OF THE ACT. 18. IN THE INSTANT CASE THE REVENUE HAS NEITHER INV OKED PROVISIONS CONTAINED U/S 147/148 NOR PROVISIONS CON TAINED U/S 263 TO TAX THE NEW SOURCE OF INCOME AND AS SUCH THE ORDER PASSED BY LD. CIT(A) TO THE EXTENT OF MAKING ADDITI ON ON ACCOUNT OF LONG TERM CAPITAL GAIN IS BEYOND JURISDI CTION AND AS SUCH IS NOT SUSTAINABLE. 19. SO WITHOUT ENTERING INTO THE MERITS OF THIS ISS UE WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION MADE BY LD. C IT(A) TO THE TUNE OF RS. 92,52,933/- ON ACCOUNT OF LONG TERM CAPITAL GAIN IS NOT SUSTAINABLE. HENCE HEREBY DELETED. SO G ROUND NO. 2 14 ITA.NO.4965/DEL/2013 HINDUSTAN VEGETABLE OILS CORP. LTD. VS.ACIT AND ADDITIONAL GROUND NO. 1 AND 2 ARE DETERMINED IN FAVOUR OF THE ASSESSEE. 20. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE IMPUGN ED ORDER PASSED BY LD. CIT(A) IS NOT SUSTAINABLE IN TH E EYES OF LAW, HENCE PRESENT APPEAL FILED BY THE ASSESSEE COM PANY IS HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2017. SD/- SD/- (B.P. JAIN) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 20.9.2017 VEENA COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT G BENCH, DELH I 6. GUARD FILE.