PHA India Pvt Ltd., Sriperambudur V. DCIT, CHENNAI

ITA 891/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4258 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHISH TRIPATHY
• Assessee Lawyers: RAGHUNATHAN S
• Keywords: Right to appeal
• Section: 5(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . . . , ! , ' #$ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ] ./ I.T.A. NO.891/MDS/2017 / ASSESSMENT YEAR : 2011-2012. M/S. PHA INDIA PVT. LTD, NO.C-16 & C-25, SIPCOT INDUSTRIAL PARK, IRRUNGATTUKOTTAI, SRIPERUMBUDUR, TAMIL NADU 602 117. [PAN AAACP 6585A] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE 5(2) CHENNAI. ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI. RAGHUNATHAN S. ADV. /RESPONDENT BY : SHRI. ASHISH TRIPATHY, JCIT. / DATE OF HEARING : 15-06-2017 / DATE OF PRONOUNCEMENT : 19-06-2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, DAT ED 30.12.2016 FOR THE ASSESSMENT YEAR 2011-2012. ITA NO. 891/MDS/2017. :- 2 -: 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. THE HONOURABLE CIT/ASSESSING OFFICER ERRED IN NOT APPRECIATING THE LAW RELATING TO SECTION 145A AND W ITHOUT APPRECIATING THE PRINCIPLE THAT THE APPELLANT IS EL IGIBLE FOR MODVAT CREDIT ON THE PURCHASES. 2. THE APPELLANT CRAVES LEAVE TO ADD OR ALTER, BY DELETION, SUBSTITUTION, MODIFICATION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR DURING THE HEARING OF THE APPEAL. 3. BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASS ESSEE RAISED A GROUND THAT LD. ASSESSING OFFICER ERRED IN DOING DISALLOWANCE UNDER SECTION 145A OF THE ACT AND THIS GROUND WAS NOT PRESSED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ACCOR DINGLY, LD. COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE GROUND HAS NOT PRESSED. 4. NOW BEFORE US, LD. AUTHORISED REPRESENTATIVE SUBMIT TED THAT ASSESSEE WANTED TO PRESS THIS GROUND SINCE IT IS A LEGAL ISSUE AND PRAYED TO REMIT THE ISSUE BACK TO THE FILE OF THE L D. ASSESSING OFFICER FOR FRESH CONSIDERATION. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AU THORISED REPRESENTATIVE. ITA NO. 891/MDS/2017. :- 3 -: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. IN OUR OPINION ASSESSEE NOT EXPLAINED THE R EASON WHY IT HAS NOT PRESSED THE GROUND BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND WHY ASSESSEE WANTED TO PRESS THIS GRO UND BEFORE US. ASSESSEE HAS ALSO NOT EXPLAINED WHETHER IT IS A MIS TAKE OF FACTS OR LAW IN NOT PRESSING THIS GROUND BEFORE THE LD. COMMISSI ONER OF INCOME TAX (APPEALS). THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAMANLAL KAMDAR VS. CIT 108 ITR 73 HAD HELD THAT ONCE THE ASSESSEE HAS ACCEPTED THAT THERE WAS NO OBJECTION TO THE ASS ESSMENT ORDER, HE CANNOT BE SAID TO BE AGGRIEVED BY THAT ORDER AND CA NNOT APPEAL AGAINST BEFORE APPELLATE AUTHORITY. FURTHER, HON BLE GAUHATI HIGH COURT IN THE CASE OF LALSINGH ESTATE PVT. LTD VS. CIT 216 ITR 644 HAD ALSO HELD THAT A PERSON CANNOT SAY AT ONE TIME THA T A TRANSACTION IS VALID AND TURNAROUND AND SAY IT IS VOID SO AS TO OBTAIN SOME ADVANTAGE. THIS BEING THE SITUATION, WE CANNOT VALI DATE THE GROUND TAKEN BY THE ASSESSEE. FURTHER, WE MAKE IT CLEAR T HAT WE ARE NOT SAYING THAT ASSESSEE HAS NOT HAVING A RIGHT OF APPE AL. ADMITTEDLY, ASSESSEE IS HAVING RIGHT OF APPEAL ON THE CONDITION THAT ASSESSEE HAS TO EXPLAIN WITH GOOD AND SUFFICIENT REASON FOR NOT PURSUING THIS GROUND ON EARLIER OCCASION BEFORE THE LD. COMMISSIO NER OF INCOME TAX (APPEALS). HOWEVER, IN THE PRESENT CASE, THERE IS NO IOTA OF EXPLANATION BY THE ASSESSEE FOR NOT PRESSING THIS G ROUND BEFORE LD. ITA NO. 891/MDS/2017. :- 4 -: COMMISSIONER OF INCOME TAX (APPEALS). IN SUCH CIRC UMSTANCES, WE ARE NOT IN A POSITION TO APPRECIATE THE GROUND RAIS ED BY THE ASSESSEE BEFORE US. ACCORDINGLY, THIS GROUND OF THE ASSESSE E IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED ON MONDAY, THE 19TH DAY OF JUNE, 2 017, AT CHENNAI. SD/- SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ! ) (CHANDRA POOJARI) ' / ACCOUNTANT MEMBER '# / CHENNAI $% / DATED: 19TH JUNE, 2017. KV %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 3. ' +',! / CIT(A) 5. )-.' / / DR 2. / RESPONDENT 4. ' + / CIT 6. .0'1 / GF