ACIT, CHENNAI V. Five Star Marine Exports Pvt. Ltd., CHENNAI

ITA 848/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7453 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-02-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 04-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !.. # $%, ' () BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.848/MDS/2016 + ,+ / ASSESSMENT YEAR : 2006-07 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 2(1), CHENNAI - 600 034. V. M/S FIVE STAR MARINE EXPORTS PVT. LTD., NEW NO.70 (OLD NO.35), VENKATESA STREET, CHINTADRIPET, CHENNAI - 600 002. PAN : AAACF 3541 N (.// APPELLANT) (01.// RESPONDENT) ./ 2 3 / APPELLANT BY : SHRI SUPRIYO PAL, JCIT 01./ 2 3 / RESPONDENT BY : SH. PHILIP GEORGE, ADVOCATE # 2 4' / DATE OF HEARING : 23.02.2017 56, 2 4' / DATE OF PRONOUNCEMENT : 23.03.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 6, CHENN AI, DATED 29.01.2016 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2 I.T.A. NO.848/MDS/16 2. SHRI SUPRIYO PAL, THE LD. DEPARTMENTAL REPRESENT ATIVE, SUBMITTED THAT THE ASSESSEE HAD PRODUCED ADDITIONAL EVIDENCE BEFORE THE CIT(APPEALS). THE ADDITIONAL EVIDENCES ARE INVOICES WHICH CONTAINED THE NAME OF THE IMPORTER AND NAME O F THE ULTIMATE BUYER, ETC. THESE DETAILS ACCORDING TO THE LD. D.R ., WERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER. THE CIT(AP PEALS), AFTER CONSIDERING THE ADDITIONAL MATERIAL FILED BY THE AS SESSEE, HAS ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT VERIFYING OTHER DETAILS CONTAINED THEREIN. MOREOVER, ACCORDING TO THE LD. D.R., NO OPPORTUNITY WAS GIVEN TO THE ASSESSING OFFICER, THE REFORE, THERE WAS VIOLATION OF RULE 46A OF THE INCOME-TAX RULES, 1962 . 3. ON THE CONTRARY, SHRI PHILIP GEORGE, THE LD. COU NSEL FOR THE ASSESSEE, SUBMITTED THAT THE ISSUE ARISES FOR CONSI DERATION IS DISALLOWANCE OF ` 3,77,46,687/- ON ACCOUNT OF DUMPING DUTY. THE ASSESSEE FILED WRITTEN STATEMENT BEFORE THE CIT(APP EALS). ACCORDING TO THE LD. COUNSEL, THE ASSESSEE EXPLAINE D BEFORE THE ASSESSING OFFICER THAT THE DUTY PAID HAS BEEN RECOV ERED FROM THE BUYERS AND IT IS NOT BORNE BY THE ASSESSEE-COMPANY. THE ASSESSEE HAS ALSO CLAIMED BEFORE THE ASSESSING OFFICER THAT THE ANTI DUMPING DUTY WAS INCLUDED IN THE TOTAL VALUE OF INVOICE. T O SUPPORT THE 3 I.T.A. NO.848/MDS/16 CLAIM, ACCORDING TO THE LD. COUNSEL, THE ASSESSEE H AS PRODUCED INVOICES BEFORE THE CIT(APPEALS) IN THE FORM OF PAP ER-BOOK. THESE INVOICES CONTAINED THE NAMES OF THE ASSESSEE-COMPAN Y, IMPORTER ON RECORD AND NAME OF THE ULTIMATE BUYER. THE INVO ICES DISCLOSE THAT THE ANTI DUMPING DUTY AT THE RATE OF 10.17% OF INVOICE VALUE. ACCORDING TO THE LD. COUNSEL, THE ASSESSEE HAS ALSO PRODUCED DETAILS OF NAME OF THE ULTIMATE BUYER INCLUDING THE ANTI DUMPING DUTY, THEREFORE, THE CIT(APPEALS) HAS RIGHTLY ALLOW ED THE CLAIM OF THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE ANTI DUMPING DUTY WAS INCLUDED IN THE TOTAL VALUE OF INVOICES. THE A SSESSEE HAS ALSO CLAIMED THAT ANTI DUMPING DUTY PAID BY THE BUYER WH ICH WAS EVIDENCED FROM THE INVOICES PRODUCED BEFORE THE CIT (APPEALS). FROM THE MATERIAL AVAILABLE ON RECORD, IT APPEARS T HE INVOICES WHICH DISCLOSE CERTAIN DETAILS WITH REGARD TO PAYMENT OF ANTI DUMPING DUTY AND ULTIMATE BUYER WERE NOT AVAILABLE BEFORE T HE ASSESSING OFFICER. THE ASSESSING OFFICER HAD NO OCCASION TO EXAMINE THE SAME. THE CIT(APPEALS) HAS ALSO WITHOUT VERIFYING THE 4 I.T.A. NO.848/MDS/16 GENUINENESS OF SO-CALLED INVOICES, ALLOWED THE CLAI M OF THE ASSESSEE. THEREFORE, THIS TRIBUNAL IS OF THE CONSI DERED OPINION THAT THERE IS A CLEAR VIOLATION OF RULE 46A OF THE INCOM E-TAX RULES, 1962. THEREFORE, THE ASSESSING OFFICER HAS TO EXAMINE THE MATTER AFRESH. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW AR E SET ASIDE AND THE ISSUE RAISED BY THE ASSESSEE IS REMITTED BACK T O THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE INVOICES AND OTHE R DOCUMENTARY EVIDENCE FILED BEFORE THE CIT(APPEALS) AND SHALL DE CIDE THE ISSUE AFRESH, IN ACCORDANCE WITH LAW, AFTER GIVING A REAS ONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23 RD MARCH, 2017 AT CHENNAI. SD/- SD/- ( ! . . # $% ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 8 /DATED, THE 23 RD MARCH, 2017. KRI. 5 I.T.A. NO.848/MDS/16 2 04$9 :9,4 /COPY TO: 1. ./ /APPELLANT 2. 01./ /RESPONDENT 3. # ;4 () /CIT(A)-6, CHENNAI 4. PRINCIPAL CIT-2, CHENNAI 5. 9< 04 /DR 6. !+ = /GF.