Devchhaya Industries, Pune V. Assistant Commissioner of Income-tax, Pune

MA 1/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7029 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-08-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MALVIYA
• Keywords: Principle of natural justice; Additional evidence
• Section: 195; 254(2); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / MA NO. 01 /PUN/201 7 (ARISING OUT OF ITA NO. 2088 /PUN/201 3 ) / ASSESSMENT YEAR : 20 09 - 10 DEVCHHAYA INDUSTRIES, W - 189, S - BLOCK, MIDC, BHOSARI, PUNE 411026 PAN : AAACX0419K ....... / APPELLANT / V/S. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE / RESPONDENT ASSESSEE BY : SHRI P RAMOD SHINGTE REVENUE BY : SHRI ALOK MALVIYA / DATE OF HEARING : 04 - 09 - 2020 / DATE OF PRONOUNCEMENT : 08 - 09 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS MISCELLANEOUS APPLICATION LISTED BEFORE US IN TERMS OF DECISION DATED 14 - 02 - 2019 IN WRIT PETITION NO. 57 OF 2019 PASSED BY THE HONBLE HIGH COURT OF BOMBAY. 2 MA NO. 01/PUN/2017, A.Y. 2009 - 10 2. THE LD. AR PLACED ON RECORD THE DECISION DATED 14 - 02 - 2019 PASSED BY THE HONBLE HIGH COURT OF B OMBAY COHEREIN THE HONBLE HIGH COURT OF BOMBAY WAS PLEASED TO HOLD THAT THERE IS FLAW IN THE DECISION MAKING PROCESS LEADING TO THE ORDER DATED 10 - 08 - 2017 ON THE FILE OF INCOME TAX APPELLATE TRIBUNAL, PUNE BENCHES, PUNE AND THE HONBLE HIGH COURT WAS PLEA SED TO DIRECT US TO DECIDE THE ISSUE URGED AS GROUND NO. 5 BY THE ASSESSEE IN MISCELLANEOUS APPLICATION. THEREBY, WE PROCEED TO HEAR BOTH THE PARTIES IN TERMS OF DIRECTION OF HONBLE HIGH COURT OF BOMBAY VIDE ORDER DATED 14 - 02 - 2019 (SUPRA). 3. THE BRIE F FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE FILED AN APPEAL IN ITA NO. 2088/PUN/2013 AGAINST THE ORDER DATED 30 - 10 - 2013 PASSED BY THE CIT(A) - V, PUNE FOR A.Y. 2009 - 10. IN THE SAID APPEAL THE ASSESSEE RAISED TWO GROUNDS OF APPEAL WHICH ARE AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN DISALLOWING THE COMMISSION/PROFIT A SUM OF RS.90,00,000/ - PAID TO MR. B.S. AGARWAL AGAINST SALE OF PLOT BY DISREGARDING APPELLANTS CONTENTION IN THIS REGARD . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN REJECTING THE ADDITIONAL EVIDENCE FILED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 BY DISREGARDING THE CIRCUMSTANCES UNDER WHICH THE SAI D EVIDENCE IS PRODUCE. 4. THIS TRIBUNAL DISMISSED THE SAID APPEAL VIDE ORDER DATED 25 - 05 - 2016. THE ASSESSEE FILED MISCELLANEOUS APPLICATION IN MA NO. 01/PUN/2017 SEEKING RECTIFICATION OF THE MISTAKE IN THE ORDER DATED 25 - 05 - 2016 WHICH ARE AS UNDER : 1. COMMENTS REGARDING AUTHENTICITY OF MOU DT. 17/04/2008, ARE BASED ON PRESUMPTIONS NOT SUPPORTED BY ANY EVIDENCES (REFER PARA 10). 2. COMMENTS REGARDING STATEMENT ON OATH RECORDED ON 14/10/2011 ARE BASED ON PRESUMPTIONS (REFER PARA 12 & 13) . 3 MA NO. 01/PUN/2017, A.Y. 2009 - 10 3. COMMENT S REGARDING CROSS EXAMINATION STATEMENT DATED 21/12/2011 ARE BASED ON PRESUMPTIONS (REFER PARA 12 & 13). 4. JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF GLAXO SMITHKLINE ASIA PVT. LTD. 195 TAXMANN.COM 35 (SC), HAS NOT BEEN ADJUDICATED ON THE ISSUE OF THERE IS NOT TAX ARBITRAGE IN THE TRANSACTION. 5. BEFORE THE CIT(A) CERTAIN ADDITIONAL EVIDENCES WERE SUBMITTED WITH WERE REJECTED BY THE LEARNED CIT(A) PRAYER WAS MADE TO CONSIDER THE SAME AS IT WAS GOING TO THE ROOT CAUSE OF THE MATTER, THIS PRAYER IS NOT ADJUDICATED. 5. THIS TRIBUNAL DISMISSED THE SAID MISCELLANEOUS APPLICATION VIDE ITS ORDER DATED 10 - 08 - 2017 AGAINST WHICH THE ASSESSEE PREFERRED WRIT PETITION NO. 57 OF 2019 WHEREIN THE HONBLE HIGH COURT OF BOMBAY WAS PLEASED TO PASSED AN ORDER WHI CH IS AS UNDER : 2. THE GRIEVANCE OF THE PETITIONER TO THE IMPUGNED ORDER DATED 10 TH AUGUST, 2017 IS LIMITED TO THE FACT THAT THE GROUND URGED IN ITS APPLICATION FOR RECTIFICATION THAT THE ORDER DATED 25 TH MAY, 2016 DID NOT DEAL WITH ITS GRIEVANCE OF ADDITIONAL EVIDENCES PRODUCED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) BEING REJECTED WITHOUT ANY JUSTIFICATION, WAS NOT DEALT WITH IN THE IMPUGNED ORDER DATED 10 TH AUGUST, 2017. THIS EVEN AFTER HAVING RECORDED THE ABOVE GRIEVANCE OF THE PETITIONER IN ITS IMPUGNED ORDER DATED 10 TH AUGUST, 2017 AS THE GRIEVANCE URGED IN GROUND NO. 5 IN THE APPLICATION. NO OTHER GRIEVANCE IS BEING URGED BY THE PETITIONER BEFORE US. IT IS THE CASE OF THE PETITIONER THAT THE ADDITIONAL EVIDENCE WHICH WAS SOUGHT TO BE PROD UCED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) GOES TO THE ROOT OF THE MATTER AND THE CONSIDERATION OF THE ADDITIONAL EVIDENCE WOULD HAVE VITAL IMPACT ON RESULT OF THE APPEAL FOR THE ASSESSMENT YEAR 2009 - 10. 3. THE ABOVE GRIEVANCE OF THE PETITIONER OF NON - CONSIDERATION OF THE GROUND OF RECTIFICATION IS EVIDENT FROM READING OF THE IMPUGNED ORDER DATED 10 TH AUGUST, 2017. THIS IS EVEN NOT DISPUTED BY THE REVENUE. THUS, THERE IS FLAW IN THE DECISION MAKING PROCESS LEADING TO THE IMPUGNED ORDER DATED 10 TH AUGUST, 2017 . 4. IN THE ABOVE VIEW, IT IS CLEAR THAT THE TRIBUNAL OUGHT TO HAVE DEALT WITH THE ABOVE ISSUE (URGED AS GROUND NO.5) IN THE MISCELLANEOUS APPLICATION FOR RECTIFICATION AND TAKEN A VIEW ON IT. THEREFORE, WE DIRECT THE TRIBUNAL TO DECIDE AB OVE ISSUE URGED AS GROUND NO.5 BY THE PETITIONER IN ITS RECTIFICATION APPLICATION DATED 30 TH NOVEMBER, 2016 AND PASS AN ORDER ON THE SAME AFTER FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 6. IN THE LIGHT OF REMANDING THE MATTER TO THE FILE OF THIS TRIBUNAL, THE REGISTRY, PUNE BENCHES, ITAT LISTED THE ABOVE MISCELLANEOUS APPLICATION FOR FRESH HEARING. 4 MA NO. 01/PUN/2017, A.Y. 2009 - 10 7. THE LD. AR, SHRI PRAMOD SHINGTE REPRESENTING THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED MISCE LLANEOUS APPLICATION SEEKING TO RECTIFY THE MISTAKES IN THE ORDER DATED 25 - 05 - 2016 AND THE TRIBUNAL WHILE DISMISSING THE SAID MISCELLANEOUS APPLICATION DID NOT CONSIDER THE EFFECT OF ADDITIONAL EVIDENCES ISSUE (URGED AS GROUND NO. 5) AND CONTENDED THAT THE ADDITIONAL EVIDENCES FILED BEFORE THE CIT(A) GOES TO THE ROOT OF MATTER AND THE CONSIDERATION OF ADDITIONAL EVIDENCES WOULD HAVE VITAL INFACT ON THE RESULT OF MAIN APPEAL IN ITA NO. 2088/PUN/2013. FURTHER, HE REFERRED TO PAGES 41, 45 AND 47 AND ARGUED TH AT TH E STATEMENT RECORDED U/S. 131 OF THE ACT , THE CROSS - EXAMINATION AND LETTER OF SHRI BALKRISHNA AGARWAL ARE VERY ESSENTIAL AND NECESSARY EVIDENCES TO BE CONSIDERED IN TERMS OF GROUNDS RAISED IN MAIN APPEAL BEFORE THIS TRIBUNAL. THIS TRIBUNAL DID NOT CO NSIDER THE SAID ADDITIONAL EVIDENCES WHILE DISPOSING OF THE MISCELLANEOUS APPLICATION VIDE IN ITS ORDER DATED 10 - 08 - 2017. 8. THE LD. DR, SHRI ALOK MALVIYA FAIRLY AGREED GROUND NO. 5 AS URGED IN MA NO. 01/PUN/2017 NOT CONSIDERED BY THIS TRIBUNAL. 9. WE NOTE THAT THE RESPONDENT - REVENUE EVEN BEFORE THE HONBLE HIGH COURT OF BOMBAY DID NOT DISPUTE THE SAME. ON PERUSAL OF THE ORDER DATED 10 - 08 - 2017 PASSED BY THIS TRIBUNAL IN THE OPERATIVE PORTION FROM PARAS 4 TO 6 WE FIND THERE WAS NO SUCH REFERENCE OR DISC USSION REGARDING THE GROUND NO. 5 RAISED IN MISCELLANEOUS APPLICATION. THE MAIN CONTENTION OF LD. AR IS THAT THE STATEMENT RECORDED U/S. 131 OF THE ACT AND THE CROSS - EXAMINATION AND LETTER DATED 26 - 12 - 2019 OF SHRI BALKRISHNA AGARWAL GOES TO THE ROOT OF AP PEAL MEMO GROUNDS AND IN OUR OPINION TAKING INTO CONSIDERATION THE SUBMISSION OF LD. DR AND RESPONDENT - REVENUE BEFORE THE HONBLE HIGH COURT OF BOMBAY ARE APPEARS TO BE CORRECT. THEREFORE, WE 5 MA NO. 01/PUN/2017, A.Y. 2009 - 10 MODIFY THE IMPUGNED ORDER PASSED U/S. 254(2) OF THE ACT BY DIRE CTING TO RECALL THE ORDER DATED 25 - 05 - 2016 PASSED BY THIS TRIBUNAL IN ITA NO. 2088/PUN/2013 FOR A.Y. 2009 - 10 AND RESTORE IT TO THE FILE . THE REGISTRY IS DIRECTED TO FIX THE APPEAL IN ITA NO. 2088/PUN/2013 FOR A.Y. 2009 - 10 ON 12 - 10 - 2020. BOTH THE PARTIES MAY BE INFORMED, ACCORDINGLY. THUS, THE MISCELLANEOUS APPLICATION RAISED BY THE ASSESSEE IS ALLOWED TO THAT EXTENT . 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 08 T H SEPTEMBER, 2020 . SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 08 TH SEPTEMBER, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - V, PUNE 4. THE CIT - V , PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE