Muthoot Finance Ltd, Cochin V. The ADCIT, Cochin

ITA 90/COCH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7570 (ITAT-COCHIN)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 03-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

ITA NO . 90/C/2015 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO . 90/COCH/2015 (ASST YEAR 2011 - 12 ) M/S MUTHOOT FINANCE LTD MUTHOOT CHAMBERS BANERJI ROAD KOCHI 18 VS TE ADDL COMMR OF INCOME TAX RANGE 1 K OCHI ( APPELLANT) (RESPONDENT) PAN NO. AABCT0343B ASSESSEE BY SH R SREENIVASAN REVENUE BY SH K P GOPAKUMAR, SR DR DATE OF HEARING 7 TH JAN 2015 DATE OF PRONOUNCEMENT 8 TH JAN 2016 OR D ER PER GEORGE GEORGE. K. J M: THIS APPEAL, AT THE INSTA NCE OF THE ASSESSEE, IS DIRECTED AGAINST THE ORDER DATED 15.11.2014 OF THE CIT(A) - II, KOCHI. THE RELEVANT ASSESSMENT YEAR IS 2011 - 12. 2 THE SOLITARY ISSUE THAT I S RAISED FOR OUR CONSIDERATION IS WHETHER THE CIT(A) IS JUSTIFIED IN DISMISSING THE APPEAL IN - LIMINE WITHOUT CONSIDERING THE PETITION FILED FOR CONDONING THE DELAY . 3 BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS: ITA NO . 90/C/2015 2 THE ASSESSEE IS A NBFC ENGAGED IN PROVIDING GOLD LOANS AND OTHER ALLIED INVESTMENT ACTIVITIES. THE RETURN OF INCOME F OR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS FILED ON 29.9.2011 DECLARING A TOTAL INCOME OF RS. 7,92,85,11,746/ - . THE AO , DURING THE ASSESSMENT PROCEEDING, NOTICED THAT AS PER THE COMPUTATION STATEMENT FILED, THE ASSESSEE HAS C LAIMED DEDUCTION U/S 801A OF RS. 1,92,86,667/ - . THE DEDUCTION CLAIMED BY THE ASSESSEE WAS U/S 801A(4)(IV) OF THE I T ACT. IT WAS CLARIFIED BY THE ASSESSEE THAT THEY HAD SET UP WIND TURBINES AT THIRUNELVELY, TAMILADU DURING THE AY 2005 - 06. THE POWER GENERAT ED FROM THE WIND MILLS ARE BEING SOLD TO TAMIL NADU ELECTRICITY BOARD. THE ASSESSEE FURNISHED FORM 10CCB IN SUPPORT OF ITS CLAIM U/S 801A OF THE ACT. ACCORDING TO THE AO, THE CLAIM OF THE ASSESSEE CANNOT BE ALLOWED SINCE SECTION 801A(5) HAS PUT CERTAIN R ESTRICTIONS ON CLAIMING DEDUCTION U/S 801A. IT WAS OBSERVED BY THE AO THAT AS PER SECTION 80A(5), THE ASSESSEE OR ANY OTHER PERSON WHOSE ONLY SOURCE OF INCOME IS SUCH ELIGIBLE BUSINESS ARE ENTITLED TO DEDUCTION U/S 801A. ACCORDING TO THE AO, THE CASE OF THE ASSESSEE DOES NOT FALL UNDER THIS CATEGORY AS THE ASSESSEE IS INVOLVED IN LEADING GOLD LOAN COMPANIES AND ALSO INVOLVED IN INVESTMENT ACTIVITY OF BUYING AND SELLING MUTUAL FUNDS, SHARES AND OTHER FINANCIAL ACTIVITIES. FURTHER, IT WAS OBSERVED THAT THE TURNOVER ARISING OUT OF POWER GENERATIONS FROM WINDMILL CANNOT BE TREATED AS ELIGIBLE BUSINESS FOR THE PURPOSES OF SECTION 801A. ACCORDINGLY, THE CLAIM OF THE ASSESSEE WAS DISALLOWED. ITA NO . 90/C/2015 3 3 AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED APP EAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) OBSERVED THAT THE APPEAL WAS TIME BARRED AND NO CONDONATION PETITION WAS FILED BY THE ASSESSEE. ACCORDINGLY, THE APPEAL WAS DISMISSED IN - LIMINE. 4 AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT CONSIDERING THE PETITION FILED FOR CONDONATION OF DELAY. THE LD COUNSEL INVITED OUR ATTENTION TO THE PETITION FILED FOR C ONDONATION OF DELAY AND THE COPY OF THE ACKNOWLEDGE, WHICH ARE PLACED AT PAGES 37 TO 39 OF THE PAPER BOOK FILED BY THE ASSESSEE. ACCORDINGLY , THE LD COUNSEL PRAYED THAT THE ORDER OF THE CIT(A) MAY BE RECALLED AND THE ISSUE MAY BE RESTORED TO HIS FILE FOR CONSIDERING THE CASE AFRESH. THE LD DR PRESENT WAS DULY HEARD. 5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE HAD FILED PETITION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE CIT(A) AND ALSO OBTAINED THE ACKNOWLEDGE FROM THE OFFICE OF THE CIT(A). WE NOTICE THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT CONSIDERING THE PETITION FILED FOR CONDONATION OF DELAY. THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY , THE CASE IS RESTORED TO THE FILE OF THE CIT(A) . THE CIT(A) SHALL CONSIDER THE DELAY CONDONATION PETITION AND SHALL ITA NO . 90/C/2015 4 TAKE A DECISION IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 4 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JAN 2016 . SD. - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 8 TH JAN 2016 RAJ* COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN