The ACIT, 1(1), Bhopal V. M/s. Bharat Oman Refineries Limited, Sagar

ITA 705/IND/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5469 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: ARUN MEHROTRA
• Keywords: Opportunity of being heard; Question of law; Capital receipt

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER M/S. BHARAT OMAN REFINERIES LIMITED, BINA DISTT. SAGAR .. ./ PAN: AABCB7084M VS. DY. CIT, 1(1), BHOPAL / APPELLANT / RESPONDENT DY. CIT, 1(1), BHOPAL VS. M/S. BHARAT OMAN REFINERIES LIMITED, BINA DISTT. SAGAR .. ./ PAN: AABCB7084M / APPELLANT / RESPONDENT / ASSESSEE BY SHRI ARUN MEHROTRA, C. A. / DEPARTMENT BY SHRI LALCHAND, CIT DR DATE OF HEARING 21.11.2016 DATE OF PRONOUNCEMENT 23.11.2016 .. . / I.T.A. NO. 700/IND/2013 #% % / ASSESSMENT YEAR: 2010-11 .. ./ I.T.A. NO. 705/IND/2013 #% % / ASSESSMENT YEAR: 2010-11 I.T.A.NOS. 700 & 705/IND/2013 M/S. BHARAT OMAN REFINERIES LIMITED, BHOPAL PAGE 2 OF 6 / O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AS WE LL AS DEPARTMENT AGAINST THE ORDER OF THE LD. CIT(A) DATE D 05.09.2013 FOR THE ASSESSMENT YEAR 2010-11. 2. THE REVENUE HAS TAKEN FOUR GROUNDS OF APPEAL RELATI NG TO DELETING THE ADDITION OF RS. 1,20,19,837/- ON AC COUNT OF DISALLOWING OF CLAIM OF EXEMPTION WITH REFERENCE TO I NTEREST RECEIVED ON FDR FOR L/C OPENED FOR IMPORT OF CAPITA L GOODS, DELETING ADDITION OF RS. 25,48,375/- BEING INTEREST EARNED ON FDRS, DELETING THE ADDITION OF RS. 55,000/- MADE ON ACCOUNT OF TENDER FEE FOR CAPITAL WORK, DELETING THE ADDITIO N OF RS. 5,75,187/- ON ACCOUNT OF RECOVERIES OF ELECTRICITY/ RENT. SIMILARLY, THE ASSESSEE HAS TAKEN TWO REGULAR GROUN DS OF APPEAL REGARDING CONFIRMING THE DISALLOWANCE OF EXPE NSES OF RS. 2,25,98,620/- ON ACCOUNT OF INTEREST PAID TO BA NK FOR SHORT TERM CREDIT FACILITY FOR BUYING CRUDE OIL AND DELETING THE ADDITION OF RS. 10,89,775/- ON ACCOUNT OF INSURANCE CHARGES PAID FOR INSURANCE OF CRUDE OIL FROM INCOME FROM OT HER I.T.A.NOS. 700 & 705/IND/2013 M/S. BHARAT OMAN REFINERIES LIMITED, BHOPAL PAGE 3 OF 6 SOURCES. BESIDES THIS, THE ASSESSEE HAS ALSO TAKEN THREE ADDITIONAL GROUNDS OF APPEAL REGARDING THAT THE AO HAS NOT ADJUDICATED THE CLAIM OF DEDUCTION OF RS. 6,38,71,5 35/- OUT OF TOTAL INCOME ON ACCOUNT OF INTEREST EARNED ON INVES TMENT MADE OUT OF SURPLUS FUNDS DURING CONSTRUCTION STAGE , BEING CAPITAL RECEIPT AND NOT ADJUDICATING THE CLAIM REGA RDING DEDUCTION OF RS. 13,52,749/- OUT OF TOTAL INCOME ON ACCOUNT OF GATE PASS RECOVERY MADE FORM CONTRACTORS FOR ENTRY TO CONSTRUCTION AREA DURING CONSTRUCTION STAGE AND THI RDLY NOT ADJUDICATING THE CLAIM OF DEDUCTION OF RS. 3,36,544 /- ON ACCOUNT OF RENT RECOVERY MADE FROM BANK FOR ACCOMMO DATION PROVIDED TO THEM. 3. THE ASSESSEE HAS FILED A PETITION FOR ADMISSION OF ADDITIONAL GROUNDS, ACCORDING TO WHICH THE ASSESSEE HAS MISTAKENLY NOT CLAIMED CERTAIN INCOME TO BE A CAPIT AL RECEIPT, WHICH AROSE DURING THE CONSTRUCTION STAGE OF THE PRO JECT BEFORE THE AO AS WELL AS CIT(A). THE ASSESSEES COUNSEL SU BMITTED THAT THE EXEMPTION CAN BE CLAIMED BEFORE THE I.T.A. T. AS PER THE APEX COURTS DECISION IN THE CASE OF NATIONAL T HERMAL I.T.A.NOS. 700 & 705/IND/2013 M/S. BHARAT OMAN REFINERIES LIMITED, BHOPAL PAGE 4 OF 6 POWER CORPORATION, 229 ITR 383 (S.C.). ACCORDINGLY, IT WAS PRAYED THAT THE GROUNDS OF APPEAL MAY BE ADMITTED A ND THE ISSUE MAY BE REMITTED TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ADDIT IONAL GROUNDS ARE BEING LEGAL ONE AND ALSO INVOLVE SAME F ACTS, THEREFORE, THE SAME ARE ALLOWED TO BE ADMITTED IN T HE LIGHT OF THE DECISION IN THE CASE OF NATIONAL THERMAL POWER CORPORATION, 229 ITR 383 (S.C.), WHEREIN IT WAS HELD THAT THE ADDITIONAL GROUNDS OF APPEAL CAN BE ADMITTED, WHERE THE ISSUE INVOLVED IS PURE QUESTION OF LAW AND NOT INVOLVING A NY INVESTIGATION OF FACTS. WE FIND THAT THE ISSUE RAIS ED IN THE ADDITIONAL GROUNDS OF APPEAL WERE ALREADY ON RECORD . HOWEVER, THE SAME REMAINED TO BE ADJUDICATED BY THE LOWER A UTHORITIES. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE ARE OF THE OPINIO N THAT THE SAME IS ADMITTED AND RESTORED TO THE FILE OF LD. CI T(A) FOR ADJUDICATION AFRESH ON ALL THE REGULAR GROUNDS OF A PPEAL AS I.T.A.NOS. 700 & 705/IND/2013 M/S. BHARAT OMAN REFINERIES LIMITED, BHOPAL PAGE 5 OF 6 WELL AS ADDITIONAL GROUNDS OF APPEAL. SIMILARLY, THE APPEAL OF THE REVENUE IS ALSO SET ASIDE TO THE FILE OF CIT(A) FOR ADJUDICATION AS AFRESH. IN NUT-SHELL, THE APPEAL IS RESTORED TO THE FILE OF CIT(A) FOR ADJUDICATING OF ISSUE ON BOT H THE SIDES AS AFRESH IN ACCORDANCE WITH LAW AND PROVISIONS OF THE I NCOME- TAX ACT, 1961. NEVERTHELESS, THE LD. CIT(A) WILL AL LOW PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE PROCEEDINGS. THE LD. CIT(A) IS FREE TO MAKE ANY INQUIRY REGARDING CLAIM OF THE ASS ESSEE. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AS WELL AS DEPARTMENT ARE PARTLY ALLOWED FOR STATISTICAL PU RPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 23 RD NOVEMBER, 2016. SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER * / DATED : 23 RD NOVEMBER, 2016. I.T.A.NOS. 700 & 705/IND/2013 M/S. BHARAT OMAN REFINERIES LIMITED, BHOPAL PAGE 6 OF 6 CPU* 2122