Shri Anil Laul, Haryana V. ITO, New Delhi

ITA 6488/DEL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2932 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-06-2017
• Assessment Year: 2000-2001
• Appeal Filed On: 28-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Assessee Lawyers: K R MAHAJANI
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA NOS. 6488/DEL/2014 ASSESSMENT YEARS 2000-01 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BENCH, NEW DELHI [CORAM: PRAMOD KUMAR AM AND SUDHANSHU SRIVASTAVA JM ] ITA NOS. 6488/DEL/2014 ASSESSMENT YEARS 2000-01 INDIRA LAU, REVATI LAUL AND AND RAGHAV LAL (LEGAL HEIRS OF ANIL LAUL) ..APPELLANT ANANGPUR BUILDING CENTRE KHERA DHUMASPUR, FARIDABAD 121 003 [PAN: AABPL5211H] VS INCOME TAX OFFICER CIRCLE 38(3), NEW DELHI .............APPE LLANT APPEARANCES BY K R MAHAJANI FOR THE APPELLANT RAVI KANT GUPTA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MAY 29, 2018 DATE OF PRONOUNCEMENT : AUGUST 23, 2018 O R D E R PER PRAMOD KUMAR, AM: 1. WHEN THE HEARING IN THIS CASE WAS CONCLUDED ON 2 9 TH MAY 2018, THE FOLLOWING NOTING WAS MADE IN THE RECORD OF PROCEEDINGS: DISMISSED. PRONOUNCED IN THE OPEN COURT. DETAILED R EASONS TO FOLLOW. XX XX JM AM 2. IT IS IN THIS BACKDROP THAT THE DETAILED ORDER, SETTING OUT REASONS FOR OUR CONCLUSIONS, IS BEING PRONOUNCED TODAY. 3. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 30 TH OCTOBER 2014 PASSED BY THE CIT(A) IN THE MATTER O F ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSM ENT YEAR 2000-01. 4. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS : ITA NOS. 6488/DEL/2014 ASSESSMENT YEARS 2000-01 PAGE 2 OF 4 1. THE LEARNED AO AS WELL AS LEARNED CIT(A) HAVE ER RED ON FACTS AS WELL AS ON LAW IN NOT GRANTING EXEMPTION UNDER SECTION 80HH F OF THE INCOME TAX ACT, 1961, ON EXPORT OF CASSETTE / SOFTWARE ON THE SUBJE CT OF BUILDING CHEAP HOUSES. 2. THE LEARNED AO AS WELL AS LEARNED CIT(A) HAVE ER RED IN GOING INTO OTHER ISSUES EVEN THOUGH THE MATTER WAS ASIDE BY THE ITAT ONLY TO DECIDE WHETHER CERTIFICATE FROM CENSOR BOARD WAS NECESSARY FOR GRA NTING DEDUCTION UNDER SECTION 80HHF ON EXPORT OF CASSETTE/ SOFTWARE. 3. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, BOTH THE AUTHORITIES HAVE, MERELY ON SURMISES, DOUBTED THE E XPORT INSPITE OF THE FACT THAT THE CIT(A), IN ORDERS DATED 9.12.2010, REJECTED THE CLAIM UNDER SECTION 80HHF ONLY BECAUSE THERE WAS NO CERTIFICATE FROM THE CENS OR BOARD 5. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE BEFORE US IN AN INDIVIDUAL, AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CL AIM OF DEDUCTION UNDER SECTION 80HHF- AN ACTION WHICH WAS CONFIRMED BY THE CIT(A) AS WELL . THE MATTER THUS TRAVELLED TO THE TRIBUNAL AT THE INSTANCE OF THE ASSESSEE. IN THE FI RST ROUND OF PROCEEDINGS, AT THE REQUEST OF THE ASSESSEE, AN SMC BENCH OF THIS TRIBUNAL, VIDE ORDER DATED 5 TH AUGUST 2011 REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER BY OBSE RVING AS FOLLOWS: .. IN OUR CONSIDERED VIEW, THE INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CO NSIDER THE ISSUE AFRESH. ACCORDINGLY, THE ISSUE STANDS RESTORED TO THE FILES OF THE ASSESSING OFFICER. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 6. WHEN THE MATTER TRAVELLED BACK TO THE ASSESSING OFFICER, THE AO NOTICED THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE CLAIM OF HAVING EXPORTED THE SOFTWARE. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE THAT THE MATTER WAS REMANDED TO THE ASSESSING OFFICER FO R THE LIMITED VERIFICATION WITH RESPECT TO THE NEED OF CENSORSHIP CERTIFICATE. IT WAS NOTED TH AT, IN THE ASSESSMENT PROCEEDINGS IN THE FIRST ROUND, THE ASSESSING OFFICER HAD TAKEN NOTE OF THE CLAIM OF THE ASSESSEE THAT AN ADVANCE OF RS 72,26,553 WAS RECEIVED FROM V RANJIT KHOSLA AND RS 21,00,000 FROM NANDU THONDWADI AND THESE AMOUNTS WERE SHOWN AS CURRENT LIABILITIES AS ADVANCE AGAINST FILM EXPORTS. AS THE ASSESSEE COULD NOT SUBSTANTIATE THE CLAIM OF EXPORT S, THESE AMOUNTS WERE TREATED AS UNEXPLAINED CREDITS AND DEDUCTION UNDER SECTION 80H HF WAS DECLINED AS THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE OF EXPORTS. WHEN THE MATTE R TRAVELLED TO THE CIT(A) IT WAS NOTED THAT SINCE THE SAME AMOUNTS HAVE BEEN ADDED TO THE INCOME OF THE ASSESSEE IN 1997-98, VIDE ORDER UNDER SECTION 143(3) R.W.S. 147 DATED 29 TH MARCH 2005. THE ASSESSEE HAD ONLY ADDRESSED THE ISSUE OF DOUBLE TAXATION AND DID NOT EVEN DEAL WITH 80HHF AT THE STAGE OF THE CIT(A). HOWEVER, WHEN THE MATTER TRAVELLED TO THIS TRIBUNAL, THE TRIBUNAL REMITTED THE MATTER FOR THE ASSESSMENT YEARS 1992-93 AND 1997-98, THE T RIBUNAL REMITTED THE MATTER FOR ADDRESSING THE ISSUE REGARDING VALIDITY OF THE ASSE SSMENT, AND, ON MERITS ALSO, THE MATTER WAS ITA NOS. 6488/DEL/2014 ASSESSMENT YEARS 2000-01 PAGE 3 OF 4 REMITTED TO THE FILE OF THE CIT(A) FOR FRESH EXAMIN ATION. THE ASSESSMENT YEAR 2000-01, BEING A CONNECTED MATTER, ALSO CAME UP BEFORE THE TRIBUNA L AND WAS REMITTED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. IN THE RESULTANT PRO CEEDINGS, WHILE THE CIT(A) DELETED THE ADDITION OF RS 65.91 LAKHS FOR THE ASSESSMENT YEAR 1997-98 AS IDENTITY, CAPACITY AND MEANS OF THE CREDITORS WERE ESTABLISHED, THE CIT(A) ALSO HEL D THAT INCOME FROM THESE ADVANCES, AMOUNTING TO RS 45.07 LAKHS, WAS TAXABLE IN 2000-01 . THE CIT(A) ALSO HELD THAT THE ASSESSEE HAS FAILED TO OBSERVATIONS OF THE CIT(A) TO THE EFF ECT THAT CLAIM UNDER SECTION 80HHF WAS NOT ADMISSIBLE AND THE APPELLANT HAS NOT BEEN ABLE TO SHOW THAT HAS MET HE ALL THE CONDITIONS LAID DOWN UNDER SECTION 80HHF WHEN MATTER TRAVELLED AGA IN TO THE TRIBUNAL, AS NOTED EARLIER, THE MATTER WAS REMITTED TO THE FILE OF THE AO WITH THE OBSERVATION AS REPRODUCED IN THE FOREGOING PARAGRAPH. DURING THE COURSE OF THESE REM ANDED PROCEEDINGS, THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY MATERIAL EVIDENCING THE EX PORTS. RANJIT KHOSLA, THE PURPORTED BUYER OF THE FILM, HAD, HOWEVER, APPEARED BEFORE THE ITO AND STATED, ON OATH, THAT THESE PRODUCTS WERE MADE AVAILABLE TO CIVIL SOCIETY ORGANIZATIONS IN LATIN AND CENTRAL AMERICA THOUGH A NETWORK OF FRIENDS AND RELATIVE AND TO ANY INTEREST ED PARTY THROUGH THE WORD OF MOUTH. ON THESE FACTS, THE ASSESSING OFFICER DECLINED DEDUCTI ON UNDER SECTION 80HHF BY STATING THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE CONDITI ONS UNDER SECTION 80HHF ARE FULFILLED. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE THE CIT(A) BUT WITHOUT ANY SUCCESS. LEARNED CIT(A) NOTED THAT THE ASSESSEE HAS NOT BEEN ABLE TO FILE ANY EVIDENCE OF EXPORTS, SUCH AS EXPORT INVOICES SHIPPING BILLS AND PROOF OF DELIVERY AND DISPATCH ETC, AND AS SUCH DEDUCTION UNDER SECTION 80HHF CANNOT BE ALLOWED. TH E ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. 7. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLIC ABLE LEGAL POSITION. 8. LEARNED COUNSEL FOR THE ASSESSEE HAS MADE ELABOR ATE SUBMISSIONS ON THE PROPOSITION THAT CENSOR CERTIFICATE IS NOT NEEDED FOR SUCH FILM S AS THE FILMS SAID TO HAVE BEEN EXPORTED. THAT, HOWEVER, DOES NOT APPEAL TO US. WE MUST FIRST OF ALL SEE AS TO WHETHER THE EXPORTS HAS ACTUALLY TAKEN PLACE AND WHETHER THE CONDITIONS UND ER SECTION 80HHF ARE COMPLIED WITH. LEARNED COUNSEL FAIRLY ACCEPTS THAT HE IS UNABLE TO GIVE ANY EVIDENCE IN RESPECT OF THIS ASPECT AFTER SUCH A LONG TIME AND PARTICULARLY AS THE ASSE SSEE HAS PASSED AWAY. HE SUBMITS THAT THE CASSETTES CONTAINING THESE FILMS WERE TAKEN BY THE BUYERS IN THEIR HAND BAGGAGE AND THERE IS NO EVIDENCE OF ACTUAL EXPORTS IN THAT SENSE. HE, HO WEVER, SUBMITS THAT BASED ON CIRCUMSTANTIAL EVIDENCE AND THE STATEMENT MADE BY RAJIT KHOSLA, WE COULD ASSUME THAT THE EXPORTS HAVE ACTUALLY TAKEN PLACE. IN ANY CASE, THE CIT(A), IN T HE FIRST ROUND, DECLINED SECTION 80HHF ON THE GROUND THAT CENSORSHIP CERTIFICATE WAS NOT AVAI LABLE AND THE ASSESSEE CANNOT BE ANY WORSE OFF IN THE REMANDED PROCEEDINGS. 9. WE ARE UNABLE TO SEE ANY MERITS IN THE STAND OF THE LEARNED COUNSEL. OUR CAREFUL PERUSAL OF MATERIAL ON RECORD INDICATES THAT AT NO STAGE THE SATISFACTION OF CONDITIONS UNDER SECTION 80HHF EVEN CAME UP FOR EXAMINATION BEFORE T HE AUTHORITIES BELOW. THE REFERENCE TO CENSORSHIP CERTIFICATE WAS PICKED UP FROM THE ARGUM ENTS OF THE ASSESSEE, BUT THAT WAS NOT THE LIMITED ASPECT ON WHICH REMAND WAS MADE. ALL ISSUES WERE LEFT OPEN AS THE ADJUDICATION WAS TO BE DONE DE NOVO. IN THESE CIRCUMSTANCES, SATISFA CTION OF SECTION 80 HHF CONDITIONS CANNOT BE ASSUMED OR INFERRED. UNLESS THE ASSESSEE SPECIFI CALLY SATISFIES THESE CONDITION, DEDUCTION UNDER SECTION 80HHF IS OUT OF QUESTION. THE AUTHORI TIES BELOW WERE THUS JUSTIFIED IN REJECTING ITA NOS. 6488/DEL/2014 ASSESSMENT YEARS 2000-01 PAGE 4 OF 4 THE CLAIM OF DEDUCTION UNDER SECTION 80HHF, AND, EV EN BEFORE US, NO ATTEMPTS HAVE BEEN MADE TO SATISFY THE SAID CONDITIONS. 10. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARI NG IN MIND ENTIRETY OF THE CASE, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE AUTHORITI ES BELOW, AND DECLINE TO INTERFERE IN THE MATTER. 11. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUN CED IN THE OPEN COURT TODAY ON THE 23RD DAY OF AUGUST, 2018. SD/- SD/- SUDHANSHU SRIVASTAVA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMB ER) NEW DELHI, DATED THE 23RD DAY OF AUGUST, 2018 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI