Income Tax Appellate Tribunal - Kolkata
Swastic Industries, Kolkata vs Department Of Income Tax on 23 July, 2014
I .T.A . N o . 1 5 2 4 / Kol. / 2 0 1 1 &
C. O. No . 6 7 / Ko l / 2 0 1 1
( in I TA N o . 1 5 2 4 / Ko l / 2 0 1 1 )
As s es s m en t y e ar : 2 0 0 8 - 2 0 0 9
Page 1 of 5
IN THE INCOME TAX APP ELLATE TRIBUNAL,
KOLKATA 'C' BENCH, KOLKATA
Before Shri P.K. Bansal (Accountant Member),
and Shri George Mathan (Judicial Member)
I.T .A. No. 15 24/Kol./ 2011
Assessment year : 200 8-2009
Income Tax Office r,...............................................................Appe llant
Wa rd-36(2) , Kolkata,
18, Rabind ra S arani ,
Podd ar Court, 3 r d Floor,
Kolkata-700 001
-Vs.-
M/s. Swastic Industries,........................... .............................Respondent
23, N .S . Road, 10 t h Fl oor,
Kolkata-700 001
[PAN : A ALFS 7834 H]
&
C.O. No. 67/Kol/2011
(arising out of I .T.A. No. 1 524/Kol/2011 )
Assessment Year : 2 008- 20 09
M/s. Swastic Industries,........................... ............................Cross Objector
23, N .S . Road, 10 t h Fl oor,
Kolkata-700 001
[PAN : A ALFS 7834 H]
-Vs.-
Income Tax Office r,..........................,.........................................Respondent
Wa rd-36(2) , Kolkata,
18, Rabind ra S arani ,
Podd ar Court, 3 r d Floor,
Kolkata-700 001
Appearances by:
Smt. Ranu Bisw as, JCIT, Sr . D .R., for the Depart ment
Shri Manish Tiwari, A.R., for the assessee
Date of co ncluding the hearing : Ju ly 23, 2014
Date of pronouncing the orde r : Ju ly 23, 2014
I .T.A . N o . 1 5 2 4 / Kol. / 2 0 1 1 &
C. O. No . 6 7 / Ko l / 2 0 1 1
( in I TA N o . 1 5 2 4 / Ko l / 2 0 1 1 )
As s es s m en t y e ar : 2 0 0 8 - 2 0 0 9
Page 2 of 5
O R D E R
Per George Mathan:
ITA 1524/Kol/2011 is an appeal filed by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-XX, Kolkata in A ppeal No.217/CIT(A)-XX/Wd.-36(2)/10-11/Kol dated 03.08.2011 for the assessment year 2008-09.
C.O. 67/Kol/2011 is a Cross Objection filed by the assessee in Revenue's appeal in ITA No. 1524/Kol/2011.
2. Smt. Ranu Biswas, ld. JCIT, Sr. D.R., represented on behalf of the Revenue and Shri Manish Tiwari, A .R., represented on behalf of the assessee.
3. In the Revenue's appeal , the Revenue has raised the following grounds:-
(1) On the facts and circumstances of the case, the ld. CIT(A) has erred in accepting fresh evidence relating to Fo rm No. 15G in respect o f disallowance of Rs.2,51,712/- u/s 40(a)(ia).
(2) On the facts and circumstances of the case, the ld. CIT(A) has erred in accepting fresh submissio n of the assessee of repayment o f loan of Rs.26,25,342/- which was p aid from Jangalpur Unit of the assessee, never submitted in the course of assessment.
(3) On the facts and circumstances of the case, the ld. CIT(A) has erred in not app reciating the fact that the assessee could no t produce/file reconciliation/explanatio n of unusual payment of excise duty during the assessment proceeding.
(4) On the facts and circumstances of the case, the ld. CIT(A) has erred in ignoring that the assessee could not produce suppo rting bills and payment details during the assessment relating to power and fuel expenses.
4. In the Cross Objection, the assessee has supported the order of the ld. CIT(A ppeals).
I .T.A . N o . 1 5 2 4 / Kol. / 2 0 1 1 & C. O. No . 6 7 / Ko l / 2 0 1 1 ( in I TA N o . 1 5 2 4 / Ko l / 2 0 1 1 ) As s es s m en t y e ar : 2 0 0 8 - 2 0 0 9 Page 3 of 5
5. In respect of Grounds No. 1 & 2 of the Revenue's appeal, it was submitted by the ld. D.R. that the ld. CIT(Appeals) had admitted additional evidences in the form of the copies of the Form 15G as also in the form of copies of the ledger accounts and Bank statement which were not produced before the Assessing Officer. It was also the submission that the ld. CIT(A ppeals) had also not called for any remand report from the Assessing Officer. It was the submission that the issue in respect of Grounds No. 1 & 2 may be restored to the file of the Assessing Officer for re-adjudication.
6. Ld. A.R. admitted that fresh evidences had been produced. It was the submission that these were evidences which were considered by the ld. CIT(Appeals) as the ld. CIT(Appeals) could consider these evidences as the appeal before the ld. CIT(A ppeals) was only an extension of the assessment proceedings. He vehementl y supported the order of l d. CIT(A ppeals)
7. We have considered the rival submissions. The primary assessment is done by the Assessing Officer. When additional evidences are produced before the ld. CIT(Appeals), such evidences must be admitted subject to the condition that there is compliance of Rule 46A. Once additional evidences are looked into by the l d. CIT(Appeals), admittedly the same must be put to the Assessing Officer for his rebuttal . The fact that the additional evidences have not been put to the Assessing Officer makes the finding of the l d. CIT(Appeals) on the basis of such evidences improper. In these circumstances, the issues in Grounds No. 1 & 2 of the Revenue's appeal are restored to the file of the Assessing Officer for re-adjudication after granting the assessee adequate opportunity to produce all such evidences to substantiate its claim.
I .T.A . N o . 1 5 2 4 / Kol. / 2 0 1 1 & C. O. No . 6 7 / Ko l / 2 0 1 1 ( in I TA N o . 1 5 2 4 / Ko l / 2 0 1 1 ) As s es s m en t y e ar : 2 0 0 8 - 2 0 0 9 Page 4 of 5
8. In respect of Grounds 3 & 4 of the Revenue's appeal, it was submitted by the ld. D.R. that Ground No. 3 was against the action of the ld. CIT(Appeals) in deleting the disallowance of excise duty and Ground No. 4 was against the action of the ld. CIT(A ppeals) in deleting the disallowance on account of power and fuel expenses. Ld. D.R. vehementl y supported the order of the Assessing Officer.
9. In reply, ld. A .R. drew our attention paras 8 & 9 of the order of the ld. CIT(Appeals). It was the submission that the disallowances were ad hoc disallowances and the books of account had not been rejected nor any defect found. He vehemently supported the order of the ld. CIT(A ppeals).
10. We have considered the rival submissions. A perusal of para 8 and para 9 of the order of the ld. CIT(A ppeals) clearly shows that the ld. CIT(A ppeals) was disallowed the disallowances on account of the excise duty as also the power and fuel expenses because the Assessing Officer had made the ad hoc disallowances. A perusal of the order of the Assessing Officer in paras 4 & 5 of his order shows that the disallowances made by the Assessing Officer are on ad hoc basis. No defects in the books of account maintained by the assessee have been found. Further in respect of the excise duty which has been disallowed by the Assessing Officer, the fact that the excise duty has been paid before the due date of filing the return also makes the said cl aim allowable under section 43B of the Act. In these circumstances, as the Revenue has not been able to dislodge the findings as arrived at by the ld. CIT(Appeals) in respect of Grounds No. 3 & 4, the Revenue's appeal in Grounds No. 3 & 4 stands dismissed.
11. In the result, the appeal of the Revenue is partly al lowed for statistical purposes.
I .T.A . N o . 1 5 2 4 / Kol. / 2 0 1 1 & C. O. No . 6 7 / Ko l / 2 0 1 1 ( in I TA N o . 1 5 2 4 / Ko l / 2 0 1 1 ) As s es s m en t y e ar : 2 0 0 8 - 2 0 0 9 Page 5 of 5
12. The Cross Objection being in support of the order of the ld. CIT(A ppeals), the same stands dismissed.
13. In the result, the appeal of the Revenue is partly allowed for statistical purposes and the Cross Objection filed by the assessee stands dismissed.
Order pronounced in the open Court on 23 r d July, 2014.
Sd/- Sd/-
P.K. Bansal George Mathan
(Accountant Member) (Judicial Member)
Kolkata, the 23 r d day of July, 2014
Copies to : (1) Income Tax Office r,
Wa rd-36(2) , Kolkata,
18, Rabind ra S arani ,
Podd ar Court, 3 r d Floor,
Kolkata-700 001
(2) M/s. Swastic Industries,
23, N .S . Road, 10 t h Fl oor,
Kolkata-700 001
(3) Commissioner of Inco me-tax (Appeals) (4) Commissioner of Income Tax (5) The Departmental Representative (6) Guard File By o rder Assistant Registrar Income Tax Appellate Tribunal Kolkata benches, Ko lkata Laha/Sr. P.S.