West Bengal Industrial Development Corporation Ltd., Kolkata V. DCIT, Circle -6, Kolkata, Kolkata

ITA 879/KOL/2012

• Counselvise Citation: 87923514 RSA 2012
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 05-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR
• Assessee Lawyers: J P KHAITAN; B R DUTTA
• Keywords: Additional evidence; Capital expenditure

Judgement Text

I.T.A. NO S . 8 79 & 880 /KOL./201 2 ASSESSMENT YEAR : 200 7 - 0 8 & 2008 - 09 & ITA NO. 9 69 /KOL/2012 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI N.K. SAINI (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 879 /KOL . / 20 1 2 ASSESSMENT YEAR : 200 7 - 20 0 8 & I.T.A. NO. 880 /KOL./ 20 12 ASSESSMENT YEAR : 200 8 - 2009 WEST BENGAL INDUSTRIAL DEVELOPMENT CORPORATION LTD.,...........APPELLANT 23, ABANINDRA NATH THAKUR SARANI, CAMAC STREET, KOLKATA - 700 017 [PAN : AAACW 3043 Q] - VS. - DEPUTY COMMISSIONER OF INCOME TAX, .... ....... .... .... ............ .. . RESPON DE NT CIRCLE - 6 , KOLLKATA, AAYAKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 - AND - I.T.A. NO. 969 /KOL./ 20 12 ASSESSMENT YEAR : 200 8 - 2009 DEPUTY COMMISSIONER OF INCOME TAX,................... ............ .. . APPELLANT CIRCLE - 6, KOLLKATA, AAYAK AR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 - VS. - WEST BENGAL INDUSTRIAL DEVELOPMENT CORPORATION LTD.,...........RESPONDENT 23, ABANINDRA NATH THAKUR SARANI, CAMAC STREET, KOLKATA - 700 017 [PAN : AAACW 3043 Q] APPEARANCES BY: SHRI J.P. KHAIT AN , SR. ADVOCATE, AND SHRI B.R. DUTTA, C . A , FOR THE ASSESSEE SHRI VIJAY KUMAR, CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JANUARY 2 8 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JANUARY 29 , 201 5 I.T.A. NO S . 8 79 & 880 /KOL./201 2 ASSESSMENT YEAR : 200 7 - 0 8 & 2008 - 09 & ITA NO. 9 69 /KOL/2012 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 O R D E R PER GEORGE MATHAN : I. T.A. 879 /KOL/2012 IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - VI , KOLKATA IN APPEAL NO. 1 008 / CIT (A) - VI /CIR - 6 / 20 0 9 - 1 0/KOL. DATED 30 .03.2012 FOR THE ASSESSMENT YEAR 200 7 - 08 . I.T.A. 880 /KOL/2012 IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - VI , KOLKATA IN APPEAL NO. 151 /CIT(A) - VI/CIR - 6/2009 - 10/KOL. DATED 30 .03.2012 FOR THE ASSESSMENT YEAR 200 8 - 0 9, AND I.T.A. 969 /KOL/2012 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - VI, KOLKATA IN APPEAL NO. 151/CIT(A) - VI/CIR - 6/2009 - 10/KOL. DATED 30.03.2012 FOR THE ASSESSMENT YEAR 2008 - 09. 2. AS THE ISSUES IN THESE APPEALS ARE INTER - CONNECTE D, THEREFORE, THE SAME ARE BEING DISPOSED OF BY THIS COMMON ORDER. 3 . SHRI J.P. KHAITAN, SR. ADVOCATE A LONGWITH SHRI B.R. DUTTA, C.A, REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI VIJAY KUMAR, CIT, D.R., REPRESENTED ON BEHALF OF THE REVENUE . 4 . AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. SR. COUNSEL THAT THE MAIN ISSUE IN THE APPEAL FILED BY THE ASSESSEE WAS AGAINST THE ACTION OF THE LD. CIT(APPEALS) IN DISALLOWING THE EXPENDITURE INCURRED BY THE ASSESSEE ON THE TRANSFER OF DEVELOPMENT PROJECTS HANDED OVER TO THE USERS DURING THE RELEVANT YEAR AS ALSO THE ACTION OF THE LD. CIT(APPEALS) IN TREATING THE SAID EXPENDITURE AS CAPITAL EXPENDITURE. IT WAS THE SUBMISSION THAT THE ASSESSMENT ORDER HAD BEEN PASSED ON 31.12.2009. IT WAS THE SUBMISSION THAT AFTER PASSING THE ASSESSMENT ORDER, FRESH I.T.A. NO S . 8 79 & 880 /KOL./201 2 ASSESSMENT YEAR : 200 7 - 0 8 & 2008 - 09 & ITA NO. 9 69 /KOL/2012 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 EVIDENCES HAD COME INTO EXISTENCE IN THE FORM OF A REPORT FROM THE COMMITTEE O N PUBLIC UNDERTAKINGS DATED 24.03.2011, WHEREIN THE ISSUE OF THE DEVELOPMENT EXPENDITURES HAD BEEN CONSIDERED AND THE SAME WOULD HAVE SU BSTANTIAL BEARING TO THE FACTS IN THE ASSESSEE S CASE. IT WAS ALSO THE SUBMISSION THAT A NEW L AW HAD ALSO COME INTO EXISTENCE BEING THE SINGUR LAND REHABILITATION AND DEVELOPMENT ACT, 2011. IT WAS ALSO THE SUBMISSION THAT THE HON BLE CALCUTTA HIGH COURT ON A WRIT PETITION OF TATA MOTORS LIMITED AS ALSO THE DIVISION BENCH ORDER OF THE HON BLE JURISDICTIONAL HIGH COURT WOULD HAVE A BEARING. THESE DECISIONS OF THE HON BLE JURISDICTIONAL HIGH COURT WERE IN SEPTEMBER 2011 AND JUNE, 2012. IT WAS THE SUBMISSION TH AT THESE WERE FRESH EVIDENCES WHICH WERE PLACED BEFORE THE TRIBUNAL. IT WAS THE SUBMISSION THAT AS THE ASSESSING OFFICER OR THE LD. CIT(APPEALS) DID NOT HAVE AN OPPORTUNITY TO EXAMINE THE SAID EVIDENCES WHICH HAD COME INTO EXISTENCE AFTER COMPLETION OF THE ASSESSMENT AND AS THESE EVIDENCES HAD DIRECT BEARING TO THE ISSUES IN THE APPEALS. IT WAS THE SUBMISSION THAT THE ISSUE IN THE APPEALS COULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORT UNITY TO SUBSTANTIATE ITS CASE AND EXPLAIN THE SAID EVIDENCES. 5. TO THIS, LD. CIT, D.R. DID NOT RAISE ANY SERIOUS OBJECTION. 6. WE HAVE CONSIDERED THE SUBMISSIONS. CONSIDERING THE FACT THAT THE ADDITIONAL EVIDENCES HAVE BEEN FILED BY THE ASSESSEE AND T HESE EVIDENCES WERE NOT IN THE CONTROL OF THE ASSESSEE NOR AVAILABLE WITH THE ASSESSEE WHEN THE ORIGINAL ASSESSMENT WAS IN PROCESS AND AS IT IS NOTICED THAT THESE EVIDENCES WOULD HAVE SUBSTANTIAL BEARING IN THE ADJUDICATION OF THE ISSUES IN THESE APPEALS, IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ISSUES IN THESE APPEALS MUST BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE I.T.A. NO S . 8 79 & 880 /KOL./201 2 ASSESSMENT YEAR : 200 7 - 0 8 & 2008 - 09 & ITA NO. 9 69 /KOL/2012 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 OPPORTUNITY TO PRODUCE ALL SUCH EVIDENCES TO SUBSTANTIATE ITS CAS E AND WE DO SO. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND THE APPEAL FILED BY THE REVENUE STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JANUARY , 201 5 . SD/ - SD/ - N.K. SAINI GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 29 TH D AY OF JANUARY , 201 5 COPIES TO : (1) WEST BENGAL INDUSTRIAL DEVELOPMENT CORPORATION LTD., 23, ABANINDRA NATH THAKUR SARANI, CAMAC STREET, KOLKATA - 700 017 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 6, KOLLKATA, AAYAKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS) ( 4 ) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GU ARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S.