M/s. Gorur Infra Projects Pvt. Ltd., Pune V. Joint Commissioner of Income-tax, Pune

MA 06/PUN/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4014 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHADEVAN A M KRISHNAN
• Keywords: Bogus purchase; Rectification of order; Tax effect
• Section: 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / MA NO. 06 /PUN/20 21 (ARISING OUT OF ITA NO.13/PUN/201 6 ) / ASSESSMENT YEAR : 2010 - 11 M/S. GORUR INFRA PROJECTS PVT. LTD., C/O. D.Y. PANDIT, ADVOCATE, 1187/10, KRUPA, SHIVAJI NAGAR, PUNE 411005 PAN : AADCG5519J ....... / APPELLANT / V/S. JT. CIT, PANVEL RANGE, PANVEL / RESPONDENT ASSESSEE BY : S MT. DEEPA KHARE REVENUE BY : SHRI MAHADEVAN A.M. KRISHNAN / DATE OF HEARING : 19 - 03 - 2021 / DATE OF PRONOUNCEMENT : 03 - 0 6 - 2021 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE TO RECTIFY THE MISTAKE OF THE ORDER DATED 28 - 01 - 2020 PASSED BY THIS TRIBUNAL IN ITA NO. 13/PUN/201 6 FOR A.Y. 2010 - 11. 2 MA NO. 06/PUN/2021, A.Y. 2010 - 11 2. BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKING THE RECTIFICATION OF ORDER DATED 28 - 01 - 2020 PASSED IN ITA NO. 13/PUN/2016 ON THE GROUND THAT NON - CONSIDERATION OF ALTERNATIVE ARGUMENT THAT EVEN IF, THE ADDITION ON ACCOUNT OF BOGUS PURCHASE IS SUSTAINED, THE PROFITS S O INFLATED SHOULD QUALIFY FOR DEDUCTION U/S. 80IA OF THE ACT REMAINS UNADJUDICATED . 3. THE LD. AR, SMT. DEEPA KHARE SUBMITS THAT IN THE MAIN APPEAL IN ITA NO. 13/PUN/2016, THE ASSESSEE RAISED ADDITIONAL GROUND , WHICH IS , ASSUMING FOR THE SAKE OF ARGUMENT BUT WITHOUT ADMITTING THE ALLEGED BOGUS PURCHASES WOULD BE ADDED BACK TO THE IN FRASTRUCTURAL PROFIT OF THE ASSESSEE WHICH IS EXEMPT U/S. 80IA(4)(B) READ WITH CLAUSE (C) OF THE EXPLANATION TO SEC. 80IA OF THE ACT, AS HELD BY THE BOMBAY HIGH COURT IN THE CASE CIT V/S GEMS PLUS JEWELLERY LTD., 233 CTR 248. 4. SHE SUBMITS THAT T HIS TRI BUNAL VIDE PARA NO. 4 OF THE ORDER REFERRED TO ADDITIONAL GROUND AND ALSO THE CONTENTION OF THE ASSESSEE THAT THE AO MADE ADDITION ON ACCOUNT OF BOGUS PURCHASES AMOUNTING TO RS.2,29,96,335/ - THOUGH THE ASSESSEE IS ENTITLED TO CLAIM OF DEDUCTION U/S. 80IA(4 )(B) OF THE ACT. SHE SUBMITS FURTHER VIDE PARA NO. 5 ADMITTING ADDITIONAL GROUND BUT OBSERVED THE CLAIM OF DEDUCTION WAS NOT MADE BY THE ASSESSEE AND ASSESSING OFFICER HAD NO OCCASION TO TAKE A VIEW IN THE MATTER. AS SUCH, THIS ISSUE WAS NOT RAIS ED BEFOR E THE LOWER AUTHORITIES , WHICH IS INCORRECT. 5. SHE SUBMITS THAT THE ASSESSEE CONTESTED BOTH THE ABOVE SAID TWO ADDITIONS BEFORE THE CIT(A). THE ASSESSEE RAISED ALTERNATIVE CLAIM BEFORE 3 MA NO. 06/PUN/2021, A.Y. 2010 - 11 THE CIT(A) THAT IF THE ALLEGED BOGUS PURCHASES WOULD BE ADDED TO THE INFRASTRUCTURAL PROFIT OF THE ASSESSEE WHICH IS EXEMPT U/S. 80IA(4)(B) OF THE ACT SINCE THE ASSESSEE IS ELIGIBLE FOR THE DEDUCTION OF CLAIM U/S. 80IA(4)(B) OF THE ACT. SHE SUBMITS THAT THE CIT(A) ALLOWED DEDUCTION U/S. 80IA(4) OF THE ACT BUT CONFIRMED THE DISALLOWANCE OF ALLEGED BOGUS PURCHASES. THE REVENUE CONTESTED THE ALLOWANCE OF CLAIM U/S. 80IA(4)(B) OF THE ACT BEFORE THIS TRIBUNAL WHICH WAS DISMISSED BEING LOW TAX EFFECT. 6. IT WAS HER CONTENTION THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. GEMS PLUS JEWELLERY LTD. REPORTED IN 233 CTR 248 AND THE TRIBUNAL OUGHT TO HAVE ALLOWED ADDITIONAL GROUND SINCE THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4)(B) OF THE ACT . SHE FURTHER CONTENDS THAT THIS TRIBUNAL WITHOUT CONSIDERING THE SAME REMANDED THE MATTER TO THE FILE OF AO FOR FRESH CONSIDERATION AND REFERRED TO PARA NO. 7 OF THE ORDER DATED 28 - 01 - 2020 PASSED IN MAIN APPEAL. 7. THE LD. D R, SHRI MAHADEVAN A.M. KRISHNAN RELIED ON THE ORDER OF TRIBUNAL. 8. HAVING HEARD BOTH THE PARTIES, WE NOTE THAT THE MAIN CONTENTION OF LD. AR IS THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4)(B) OF THE ACT AND THERE SHOULD NOT BE A SEPARA TE DISALLOWANCE UNDER THE HEAD ALLEGED BOGUS PURCHASES. WE NOTE THAT THE AO DEALT THE ISSUES REGARDING THE CLAIM OF DEDUCTION U/S. 80IA(4)(B) OF THE AND DISALLOWANCE UNDER THE ALLEGED BOGUS PURCHASES SEPARATELY IN HIS ORDER. IT IS ALSO TRUE THAT THE 4 MA NO. 06/PUN/2021, A.Y. 2010 - 11 ALTE RNATIVE CLAIM MADE BEFORE THE CIT(A) STATING SINCE THE ASSESSEE IS ENTITLED FOR CLAIMING DEDUCTION U/S. 80IA(4)(B) AND THE ALLEGED DISALLOWANCE UNDER BOGUS PURCHASES DOES NOT SURVIVE AS IT WOULD BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. FURTHER, THE H ONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. GEMS PLUS JEWELLERY LTD. (SUPRA) THE WHICH HELD THE ALLEGED BOGUS PURCHASES WOULD BE ADDED TO THE INFRASTRUCTURAL PROFIT OF THE ASSESSEE WHICH IS EXEMPT U/S. 80IA(4)(B) READ WITH CLAUSE (C) OF THE EXPLANAT ION TO SECTION 80IA OF THE ACT. 9. THE MAIN CONTROVERSY BEFORE US IS THAT HAVING MADE ALTERNATIVE CLAIM BEFORE THE CIT(A) WHICH IS NOT DEALT BY THE CIT(A) BY SPEAKING ORDER. HAVING SQUARELY COVERED BY THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. GEMS PLUS JEWELLERY LTD. (SUPRA) THIS TRIBUNAL OUGHT TO HAVE ALLOWED ADDITIONAL GROUND IN THE MAIN APPEAL, DESPITE WHICH THE TRIBUNAL REMANDED THE MATTER TO THE FILE OF AO. WE NOTE THAT IT IS TRUE THE AO DEALT THE ABOVE SAID TWO ISSUES SE PARATELY IN HIS ORDER. WE NOTE THAT ADMITTEDLY, THE CIT(A) DID NOT DEAL WITH THE ALTERNATIVE CLAIM BY SPEAKING ORDER. THEREFORE, IN OUR OPINION, THE CIT(A) SHALL EXAMINE THE ISSUE RELATING TO ALTERNATIVE CLAIM AND PASS THE ORDER IN ACCORDANCE WITH THE RA TIO LAID DOWN BY THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. GEMS PLUS JEWELLERY LTD. (SUPRA). THEREFORE, THE EFFECTIVE LINES IN PARA NO. 6 OF THE ORDER DATED 28 - 01 - 2020 ACCORDINGLY, THE ADDITIONAL GROUND AND THE OTHER ORIGINAL GROUNDS ARE RE MANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION ARE DELETED AND SHALL BE READ ACCORDINGLY, THE ADDITIONAL GROUND AND THE OTHER ORIGINAL GROUNDS ARE REMANDED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION . THEREFORE, THE ORDER DATED 28 - 5 MA NO. 06/PUN/2021, A.Y. 2010 - 11 01 - 2020 PASSED IN ITA NO. 13/PUN/2016 IN PARA NO. 6 IS MODIFIED AS INDICATED ABOVE. THUS, THE MISCELLANEOUS APPLICATION IS ANSWERED ACCORDINGLY. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD JUNE, 2021 . SD/ - SD/ - ( INTURI RAMA RAO ) ( S.S. VISWANETHRA RAVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 03 RD JUNE, 2021 . RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 2, THANE 4. THE PR. CIT - 2, THANE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE