Sri V.Venkatesh, By P A Holder Shri N.Vadivelu, CHENNAI V. ITO, Pondicherry

ITA 963/CHNY/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64159 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-08-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 15-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D ANAND MR S DA SGUPTA JC
• Keywords: Competent authority
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.963/MDS/2010 (ASSESSMENT YEAR: 2004-05) SHRI V.VENKATESH, BY P A.HOLDER SHRI N.VADIVELU, PROPR. M/S.Q MAX TOOLS, SIDHARTH MEHTA & CO., NO.91, GOVINDAPPA NAICKEN STREEET, 1 ST FLOOR, CHENNAI-600 001. PAN:ACUPV5384B VS. INCOME TAX OFFICER, WARD I(2), PONDICHERRY. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. D.ANAND, ADVOCATE RESPONDENT BY : MR. S.DA SGUPTA, JCIT DATE OF HEARING : 8 TH AUGUST, 2012 DATE OF PRONOUNCEMENT : 29 TH AUGUST, 2012 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE APPEAL HAS BEEN PREFERRED BY THE ASSESSEE IMPUGNING THE ORDER OF THE CIT(A)-XII, CHENNAI DATE D 31.03.2010. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF METAL BONDED TOOLS AND RESIN BONDED TOOLS. THE ASSESSEE F ILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2004-05 ON ITA NO. 963/MD S/2010 2 1.11.2004 ADMITTING NIL INCOME AFTER CLAIMING DEDUC TION UNDER SECTION 80IB AND 80L. THE ASSESSING OFFICER VIDE ASSESSMENT ORDER DATED 27.12.2006 MADE CERTAIN ADDITIONS/DISALLOWANCES IN THE INCOME RETURNED BY T HE ASSESSEE. THE ASSESSEE PREFERRED AN APPEAL AGAINST THE ASSESSMENT ORDER BEFORE THE CIT(A). THE CIT(A) HAD ALLOWED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 24.7.2 007. THE REVENUE ASSAILED THE ORDER OF THE CIT(A) BEFORE THE TRIBUNAL IN ITA NO.2265/MDS/2007. THE TRIBUNAL VIDE ORDER DA TED 4 TH SEPTEMBER, 2008 ALLOWED THE APPEAL OF THE REVENUE F OR STATISTICAL PURPOSES AND REMITTED THE MATTER BACK T O THE ASSESSING OFFICER WITH DIRECTION. THE TRIBUNAL WHIL E ALLOWING THE APPEAL OF THE REVENUE OBSERVED AS UNDER:- WE FIND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS BASED HIS DECISION ON THE BASIS OF CERTAIN DOCUMENTS AND SUBMISSIONS, WHICH WERE NOT AVAILABLE WITH THE ASSESSING OFFICER. HENCE, IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. ASSESSING OFFICER IS DIRECTED TO CONSIDER THE SAME AND DECIDE AS PER LAW AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. ITA NO. 963/MD S/2010 3 3. NOW, THE ASSESSEE, IN SECOND ROUND OF LITIGATION , HAS APPROACHED THE TRIBUNAL ASSAILING THE ORDER OF THE CIT(A)-XII, CHENNAI DATED 31.3.2010 ON THE GROUND THAT THE CIT (A) AS WELL AS THE ASSESSING OFFICER HAS NOT DECIDED THE C ASE OF THE ASSESSEE AS PER THE DIRECTIONS OF THE TRIBUNAL. TH E COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD PRODUCED CERTIFICATE FROM GOVERNMENT AUTHORITIES TO CONFIRM NUMBER OF EMPLOYEES EMPLOYED . THE COUNSEL POINTED OUT THAT THE TRIBUNAL REMITTED THE MATTER BACK TO THE ASSESSING OFFICER WITH THE LIMITED DIRECTION TO THE ASSESSING OFFICER TO CONSIDER THE DOCUMENTS PLACED BY THE ASSESSEE BEFORE THE CIT(A) AND DECIDE THE SAME AS PER LAW AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. THE ASSESSING OFFICER INSTEAD OF CONSIDERING THE DOCUMENTS/CERTIFICATES HAS DISCARDED THE SAME STATI NG THAT THE CERTIFICATES ISSUED BY THE AUTHORITIES CANNOT B E TREATED AS THE ONE GIVEN FOR THE ASSESSMENT YEAR IN QUESTION. THE CIT(A) HAS ALSO DISMISSED THE APPEAL OF THE ASSESSE E BY TAKING SIMILAR STAND. ITA NO. 963/MD S/2010 4 4. ON THE OTHER HAND, THE D.R. SUBMITTED THAT THE ASSESSEE IS RELYING ON THE CERTIFICATE DATED 21.1.2 007 WHEREAS THE PERIOD OF ASSESSMENT IS 2004-05. THE SECOND CERTIFICATE SUBMITTED BY THE ASSESSEE IS NOT RELEVA NT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE D.R. FURT HER SUBMITTED THAT ORIGINAL CERTIFICATE SPECIFIES THAT ONLY TWO PERSONS WERE TO BE EMPLOYED. THE ASSESSEE IS ALSO MAINTAINING TWO SETS OF SALARY REGISTER WHICH CAUSE D DOUBT ON THE DOCUMENTS/REGISTERS PRODUCED BEFORE THE AUTHORI TIES BELOW. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE RESPEC TIVE PARTIES. WE ARE OF THE CONSIDERED OPINION THAT THE DOCUMENTS SUPPLIED BY THE ASSESSEE TO THE ASSESSING OFFICER W ERE AS PER THE DIRECTIONS OF THE TRIBUNAL VIDE ORDER DATED 4 TH SEPTEMBER, 2008. THE TRIBUNAL HAD RESTORED THE MAT TER BACK TO THE ASSESSING OFFICER TO CONSIDER THE CERTIFICAT E ISSUED BY THE ASSISTANT DIRECTOR OF INDUSTRIES AND COMMERCE CERTIFYING THE NUMBER OF WORKERS EMPLOYED BY THE ASSESSEE AS 1 1. THE CIT(A) IN THE FIRST ROUND OF LITIGATION HAD RELIED ON THE SAID CERTIFICATE AND HELD THAT THE ASSESSEE WAS ELIGIBLE FOR ITA NO. 963/MD S/2010 5 DEDUCTION UNDER SECTION 80IB OF THE ACT. THE ASSESS ING OFFICER IN THE SET ASIDE PROCEEDINGS DID NOT CONSI DER THE SAME AND FAILED TO BRING ON RECORD ANY POSITIVE MAT ERIAL TO CONCLUDE THAT THE AFOREMENTIONED CERTIFICATE WAS NO T APPLICABLE FOR THE ASSESSMENT YEAR 2004-05. THE ASS ESSING OFFICER ONLY PRESUMED THAT THE ASSISTANT DIRECTOR O F INDUSTRIES MIGHT HAVE ISSUED THE CERTIFICATE DATED 20.01.2007 FOR THE CURRENT YEAR. FURTHER, THE ASSESSING OFFICER IN HI S REMAND REPORT DATED 24.4.2007 HAS SUBMITTED THAT THE DIREC TOR OF INDUSTRIES IS NOT THE COMPETENT AUTHORITY FOR VERIF ICATION OF THE NUMBER OF EMPLOYEES. THE ASSESSING OFFICER AS WELL AS CIT(A) HAVE FAILED TO GIVE COGENT REASONS FOR NOT R ELYING ON THE CERTIFICATE AND TO NAME THE COMPETENT AUTHORIT Y TO CERTIFY THE NUMBER OF EMPLOYEES. IT IS TRITE LAW THAT DOUBT HOWSOEVER GRAVE CANNOT TAKE PLACE OF PROOF. THE CIT(A) HAS A LSO NOT VERIFIED THE VERACITY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE AND WHILE DISMISSING THE APPEAL OF THE ASS ESSEE HAS MERELY COMMENTED ON THE OBSERVATIONS OF THE AS SESSING OFFICER ABOUT THE APPLICABILITY OF THE DOCUMENTS I N THE RELEVANT ASSESSMENT YEAR. WE, THEREFORE, SET ASI DE THE ITA NO. 963/MD S/2010 6 ORDER OF THE CIT(A) AND ALLOW THE APPEAL OF THE AS SESSEE AS THE AUTHORITIES BELOW HAVE FAILED TO COMPLY WITH TH E DIRECTION DATED 4.9.2008 OF THE TRIBUNAL IN THE RIGHT SPIRIT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY, THE 29 TH DAY OF AUGUST, 2012 AT CHENNAI. SD/- SD/- ( N.S.SAINI ) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUD ICIAL MEMBER CHENNAI, DATED THE 29 TH AUGUST, 2012. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.