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ITA 6072/MUM/2011

• Counselvise Citation: 607219914 RSA 2011
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Principle of natural justice
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI RAJENDRA SINGH , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 6072/M UM /11 ASSESSMENT YEAR: 2008 - 09 M/S. CALYX CHEMICALS & PHARMACEUTICALS LTD. 5 MARWAH COMPLEX MARWAH ESTATE, SAKI VIHAR RD, SAKI NAKA, ANDHERI (E AST ) MUMBAI - 400 067 PAN: AABCC1457B VS. CIT (A) 16 , AAYAKAR BHAVAN, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M. SUBRAMANIAN REVEN UE BY : SHRI R.A. PANT, D.R. DATE OF HEARING : 01.08.13 DATE OF PRONOUNCEMENT : 20.09.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 29.06.11 RELEVA NT TO ASSESSMENT YEAR 2008 - 09. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS WRONGLY DECLINED TO ENTERTAIN THE ADDITIONAL GROUND FOR CONSIDERING THE CLAIM OF THE ASSESSEE REGARDING ERRONEOUS DISALLOWANCE MADE BY THE ASSESSEE IN ITS RETURN OF INCO ME UNDER SECTION 43B OF THE INCOME TAX ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DURING THE RELEVANT YEAR UNDER CONSIDERATION HAD CONTRIBUTED CERTAIN AMOUNT TOWARDS PROVIDENT FUND OF THE EMPLOYEES. HOWEVER, INADVERTENTLY THE ASSESSEE DI D NOT CLAIM THE SAID ITA NO/6072/M/11 M/S. CALYX CHEMICALS & PHARMACEUTICALS LTD. 2 EXPENDITURE IN ITS RETURN OF INCOME. THE AO ASSESSED THE INCOME OF THE ASSESSEE ACCORDINGLY. HOWEVER, WHEN THE ASSESSEE NOTICED THAT IT HAD MADE AN ERRONEOUS DISALLOWANCE OF RS. 69,69,566/ - UNDER SECTION 43B OF THE INCOME TAX ACT ON A CCOUNT OF DELAY IN PAYMENT OF PROVIDENT FUND OF THE EMPLOYEES, I T MADE A CLAIM IN THIS RESPECT BEFORE THE LD. CIT(A) BY WAY OF AN ADDITIONA L GROUND. 3. HOWEVER, THE LD. CIT(A) DECLINED TO ENTERTAIN THE SAID GROUND OF THE ASSESSEE OBSERVING THAT THE ASSE SSEE DID NOT RAISE THIS GROUND BEFORE THE AO AND THE AO DID NOT MAKE ANY ADDITION ON THIS GROUND. HENCE NO APPEAL COULD HAVE BEEN EMANATED FROM THE ASSESSMENT ORDER. HE THUS DISMISSED THE SAID GROUND BEING NOT MAINTAINABLE. THE ASSESSEE IS THUS IN APPEA L BEFORE US. 4 . WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORDS. 5 . THE LD. A.R. HAS SUBMITTED A CHART SHOWING THE CONTRIBUTION MADE BY THE ASSESSEE TOWARDS PROVIDENT FUND OF ITS EMPLOYEES. HE HAS ALSO PRO DUCED PHOTOSTAT COPIES OF THE CHALLANS IN THIS RESPECT. THE LD. A.R. HAS FURTHER SUBMITTED THAT SUCH SUM WAS PAID BY THE ASSESSEE BEFORE THE DUE DATE FOR FURNISHING THE RETURN OF INCOM E. HOWEVER, DUE TO INADVERTENCE THE ASSESSEE COULD NOT MAKE THE SAID C LAIM AS IT WAS UNDER THE IMPRESSION THAT THE SAID CLAIM WAS NOT ALLOWABLE ON ACCOUNT OF DELAYED PAYMENT. HOWEVER, IT WAS FOUND LATER THAT THE SAID CLAIM WAS ALLOWABLE AND NOT DELAYED AS PER THE PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT. 6 . WE ARE OF THE VIEW THAT THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE SUBMISSION OF THE ASSESSEE IN VIEW OF THE WIDE POWERS ENJOYED BY HIM AND ALSO IN VIEW OF THE PRINCIPLES OF NATURAL JUSTICE. IN 'JUTE CORPORATION OF INDIA VS. ITA NO/6072/M/11 M/S. CALYX CHEMICALS & PHARMACEUTICALS LTD. 3 CIT' (1991) 187ITR 688(SC), THE APE X COURT WHILE CONSIDERING THE QUESTION WHETHER THE APPELLATE ASSISTANT COMMISSIONER HAS THE JURISDICTION TO ALLOW THE ASSESSE E TO RAISE AN ADDITIONAL GROUND IN ASSAILING THE ORDER OF ASSESSMENT BEFORE IT, DREW A DISTINCTION BETWEEN THE POWER TO ENHANCE TAX ON DISCOVERY OF A NEW SOURCE OF INCOME AND GRANTING A DEDUCTION ON THE ADMITTED FACTS SUPPORTED BY THE DECISION OF THE APEX COURT. RELYING ON CERTAIN OBSERVATIONS MADE BY THE APEX COURT IN CIT V. KANPUR COAL SYNDICATE (1964) 53 ITR 225 (SC), THE APEX COU RT HELD THAT POWERS OF THE FIRST APPELLATE AUTHORITY ARE COTERMINOUS WITH THOSE OF THE ASSESSING OFFICER AND THE FIRST APPELLATE AUTHORITY IS VESTED WITH ALL THE WIDE POWERS, WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. 7 . IN VIEW OF THE ABOVE STATED SETTLED POSITION OF LAW , WE HEREBY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO CONSIDER THE CLAIM OF THE ASSESSEE ON THIS ISSUE AND MAKE A FRESH ASSESSMENT ACCORDINGLY . THE AO WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE BEFORE HIM AND ALSO PRODUCE THE RELEVANT DOCUMENTS. THEREAFTER IF THE ASSESSEES CLAIM IS FOUND GENUINE AND ALLOWABLE , THE AO WILL CONSIDER THE SAME AND MAKE THE ASSESSMENT ACCORDINGLY. 8 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.09. 2013. SD/ - SD/ - ( RAJENDRA SINGH ) ( SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.09. 2013. * KISHORE ITA NO/6072/M/11 M/S. CALYX CHEMICALS & PHARMACEUTICALS LTD. 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNE D, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, IT AT, MUMBAI.