Deputy Commissioner of Income Tax Circle-4(1)(1), Bangalore V. M/s Kacon Engineers Private Limited , Bangalore

ITA 887/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7308 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 21-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C R RAGHAVENDRA
• Assessee Lawyers: PADMA MEENAKSHI
• Keywords: Depreciation; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO. 887 /BANG/201 7 ASSESSMENT YEAR: 20 13 14 DCIT CIRCLE 4 (1)[1], BANGALORE. VS. M/S. KAVCON ENGINEERS PVT. LTD., 20 KM, MYSORE ROAD, KUMBALAGUD, BANGALORE 560 074. PAN: AA CC K 0289L APPELLANT RESPONDENT APPELLANT BY : SHRI C. R. RAGHAVENDRA, ADVOCATE RESPONDENT BY : SMT. PADMAMEENAKSHI, JCIT DR DATE OF HEARING : 0 1 . 11 .201 7 DATE OF PRONOUNCEMENT : 03 .1 1 .2017 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS A REVENUES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT (A) 4, BANGALORE DATED 30.01.2017 FOR ASSESSMENT YEAR 2013 14. 2. APART FROM OTHER GROUNDS ON MERIT, THIS IS ONE O F THE GROUNDS RAISED BY THE REVENUE THAT THE CIT (A) ERRED IN NOT CALLING REMAN D REPORT FROM THE AO WHEN ADDITIONAL EVIDENCE WERE PRODUCED BEFORE HIM AS REQ UIRED UNDER RULE 46A. 3. LEARNED DR OF THE REVENUE THAT ON PAGES 5 & 8 OF HIS ORDER, LEARNED CIT (A) HAS REPRODUCED THE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE BEFORE HIM WHICH IS DATED 19.01.2017 AND AS PER THE SAME, IT I S SUBMITTED BY THE ASSESSEE THAT THE DOCUMENTS PERTAINING TO PURCHASES SUCH A S BILLS AND INVOICES AS WELL AS INVOICES IN RESPECT OF ADDITION TO GALVANISING P LANT AND BATH IN SUPPORT OF CLAIM OF DEPRECIATION ON THIS ITEM PRODUCED BEFORE CIT (A) WERE AVAILABLE AND COULD HAVE BEEN PRODUCED BEFORE THE AO ON REQUEST A ND THESE SHOULD NOT BE CONSIDERED AS AN ADDITIONAL EVIDENCE. HE SUBMITTED THAT FROM THESE, IT IS CRYSTAL ITA NO. 887/BANG/2017 PAGE 2 OF 4 CLEAR THAT THE SAME WERE NOT PRODUCED BEFORE THE AO AND WERE PRODUCED BEFORE CIT (A) FOR THE FIRST TIME. THEREAFTER HE S UBMITTED THAT AS PER RULE 46A (3), THE CIT (A) SHOULD HAVE OBTAINED REMAND REPORT FROM THE A.O. AND THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO HI S FILE FOR A FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE A.O. AS AGAINST TH IS, LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE DOCUMENTS WERE CALLED F OR BY CIT (A) AS PER HIS POWERS UNDER RULE 46A (4) AND THEREFORE, THE SAME A RE NOT ADDITIONAL EVIDENCE AND RULE 46A (3) IS NOT APPLICABLE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THERE IS NO DOUBT ABOUT THIS FACT THAT NEW DOCUMENTS PERTAINING TO PURCHAS ES SUCH AS BILLS AND INVOICES AS WELL AS INVOICES IN RESPECT OF ADDITION TO GALVANISING PLANT AND BATH IN SUPPORT OF CLAIM OF DEPRECIATION ON THIS ITEM WE RE PRODUCED BEFORE CIT (A) FOR THE FIRST TIME AND THE SAME WERE NOT PRODUCED B EFORE THE AO. THE ONLY ASPECT TO BE DECIDED BY US IS THIS THAT WHETHER IN THE FACTS OF THE PRESENT CASE, RULE 46A (4) IS APPLICABLE OR RULE 46A (1) AND (3). AS PER RULE 46A (4), CIT (A) CAN DIRECT THE ASSESSEE TO PRODUCE ANY DOCUMENT OR WITNESS. IN THE PRESENT CASE, NOTHING IS SHOWN TO US IN SUPPORT OF THIS CON TENTION THAT THE DOCUMENTS IN QUESTION WERE CALLED FOR BY CIT (A). EVEN FROM THE WRITTEN SUBMISSIONS REPRODUCED BY CIT (A) IN HIS ORDER, THIS IS NOT COM ING OUT THAT THESE DOCUMENTS WERE CALLED FOR BY CIT (A). IN THE FACTS OF THE PRE SENT CASE, RULE 46A (4) IS NOT APPLICABLE. LEARNED DR HAS NOT ARGUED ANYTHING ABOU T ADMISSION OF ADDITIONAL EVIDENCE AND HIS ARGUMENTS ARE REGARDING NON OBTAIN ING OF REMAND REPORT FROM THE A.O. LEARNED AR OF THE ASSESSEE HAS PLACED RELI ANCE ON FIVE JUDICIAL PRONOUNCEMENTS BUT NONE OF THESE IS SUPPORTING THE CASE OF THE ASSESSEE THAT REMAND REPORT IS NOT REQUIRED TO BE OBTAINED. AS PE R PARA 14 OF THE TM ORDER OF THE TRIBUNAL RENDERED IN THE CASE OF DCIT VS. DOLPH INE MARBLES PVT. LTD. AS REPORTED IN 2010 TIOL 858 ITAT JABALPUR, IT IS NOTED THAT IN THAT CASE, REMAND REPORT WAS OBTAINED IN THAT CASE AND I N SPITE OF THAT, THE REQUEST OF THE REVENUE IN THAT CASE WAS TO RESTORE THE MATT ER TO THE A.O. AND THIS REQUEST WAS REJECTED BY THE TRIBUNAL. HENCE, THIS T RIBUNAL ORDER IS NOT HELPING THE ASSESSEE IN THE PRESENT CASE. IN THE CASE OF CI T VS. SANU FAMILY TRUST, MAN 529 (KARNATAKA). IN PARA 8 OF THIS JUDGMENT, IT IS NOTED THAT A COPY OF LETTER ALONG WITH WHICH EXTRACT OF THE ACCOUNTS AND RECEIP TS WERE PRODUCED WOULD ITA NO. 887/BANG/2017 PAGE 3 OF 4 CLEARLY SHOW THAT THE SAID INFORMATION WAS BEING FU RNISHED IN VIEW OF THE DIRECTION OF THE FIRST APPELLATE AUTHORITY. IN THE PRESENT CASE, WE HAVE ALREADY NOTED THAT EVEN FROM THE WRITTEN SUBMISSIONS REPROD UCED BY CIT (A) IN HIS ORDER, THIS IS NOT COMING OUT THAT THESE DOCUMENTS WERE CALLED FOR BY CIT (A). THEREFORE, THIS JUDGMENT IS ALSO NOT HELPING THE AS SESSEE IN THE PRESENT CASE. 5. THE LEARNED AR OF THE ASSESSEE HAS PLACED RELIAN CE ON THREE MORE TRIBUNAL ORDERS. WE HAVE GONE THROUGH THE SAME. THE RATIO OF THESE THREE TRIBUNAL ORDERS IS THIS THAT WHERE THE ADDITIONAL EVIDENCE I S OBTAINED BY THE FIRST APPELLATE AUTHORITY ON ITS OWN MOTION, THERE IS NO REQUIREMENT OF LAW TO CONSULT/CONFRONT THE AO WITH SUCH EVIDENCE. IN THE PRESENT CASE, WE HAVE ALREADY NOTED THAT EVEN FROM THE WRITTEN SUBMISSION S REPRODUCED BY CIT (A) IN HIS ORDER, THIS IS NOT COMING OUT THAT THESE DOCUME NTS WERE CALLED FOR BY CIT (A). THEREFORE, THESE JUDGMENTS ARE ALSO NOT HELPIN G THE ASSESSEE IN THE PRESENT CASE. 6. AS PER ABOVE DISCUSSION, WE HAVE SEEN THAT NONE OF THE FIVE JUDGMENTS CITED BY THE LEARNED AR OF THE ASSESSEE IS APPLICABLE IN THE PRESENT CASE. RULE 46A (4) IS NOT APPLICABLE IN THE PRESENT CASE AND HENCE, WE SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A F RESH DECISION AFTER OBTAINING REMAND REPORT FROM THE AO. REMAINING GROUNDS ON MER IT DO NOT CALL FOR ANY ADJUDICATION AT THE PRESENT STAGE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (GEORGE GEORGE K) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 03 RD NOVEMBER, 2017. /MS/ ITA NO. 887/BANG/2017 PAGE 4 OF 4 COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.