M.P. Rajya Van Vikas Nigam Ltd. vs. C.I.T.

ITA-118-2000 (M.P. RAJYA VAN VIKAS NIGAM LTD. Vs C.I.T.) 16-01-2017 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR ITA NO.118/2000 Madhya Pradesh Rajya Van Vikas Nigam Ltd. Vs. Commissioner of Income Tax Present: Hon’ble Shri Rajendra Menon, Acting Chief Justice & Hon'ble Shri H. P. Singh, J. __________________________________________________ Shri A. K. Shrivastava along with Shri Abhijeet Shrivastava, learned counsel for the appellant. Shri Sanjay Lal, learned counsel for the respondent Revenue. ______________________________________________ J U D G M E N T ( 19.1.2017 ) This is Assessee's appeal under Section 260-A of the Income Tax Act calling in question concurrent findings record by the Assessing Officer, Appellate Authority and Income Tax Appellate Tribunal in the matter of granting benefit to the appellant certain allowance under Section 32-AB in a proceeding held for reassessment. 2. Facts in brief, goes to show that Assessee is a government concerned and for the assessment year 1987-88 had filed a return of income showing a taxable income of Rs.44,16,970/-. However, with the original return the tax audit report as prescribed under Section 44 AB was not enclosed and accordingly, the claim of assessee for investment deposit account was rejected by the Assessing Officer in the original assessment proceeding on the ground that the audited statutory report as required under Section 44 AB has not been produced. It seems that reassessment proceedings were held after notice was issued under Section 147 and it is a case of the Assessee herein that in the reassessment proceeding the audit report in the form No.3 (AA) claiming a deduction under Section 32 AB was filed. However, this benefit was not granted both by the Appellate Authority, Commissioner Appeals and Tribunal, therefore, this appeal under Section 260-A. While admitting the appeal, this Court framed the following substantial questions of law :- “Whether the authorities below including the Tribunal are justified in not extending the benefit of investment covered under Section 32-AB of the Income Tax Act, 1961 solely on the ground that the same was not permissible in reopen assessment under Section 147 of the Act and further the provision enshrined under Section 152(2) of the aforesaid statute is not applicable ?” 3. Having heard learned counsel for the parties, we find that the only issue involved in this case is as to whether, the petitioner had filed the statutory audited report and, therefore, were entitled to the benefit under Section 32-AB after reopening of assessment under Section 147. 4. Shri A.K.Shrivastava, learned counsel for the appellant invited our attention to an additional document filed in this appeal along I.A.No.12348/2013 on 30th of October, 2013 and tried to indicate that the audited report enclosed therewith was submitted during the reassessment proceedings and placing reliance on the following judgments, he argued that the audited report for seeking benefit under Section 32-AB can be produced even before the appellate stage : CIT Vs. Berger Paints (India) Ltd. - (2002) 254 ITR 503 (Cal); CIT Vs. Devradhan Madhavlal Genda Trust – (1998) 230 ITR 714 (MP); CIT Vs. Panama Chemical Works – (2000)245 ITR 684 (MP); ITO Vs. K. L. Shri Hari (HUF) -(2001)250 ITR 193 (SC); Shri Hari Chemicals Export Ltd. Vs. 409 – (2006)8 STJ 337 (SC); Asstt. CIT Vs. Major Deepak Mehta – (2012) 344 ITR 641 (CG) & Dy. CCT Vs. H.R. Sri Ramulu – (1977)39 STC 177 (SC). 5. However, Shri Sanjay Lal refuted the aforesaid and pointed out that once before the assessing officer and the appellate authority, the audited report was not filed and when specific finding recorded in this regard concurrently before the appellate authority and the tribunal to say that they were never produced as this finding is the finding of fact. 6. We have heard learned counsel for the parties and we have perused the record. We find that in the assessment order passed after reopening of assessment under Section 147 on 13.1.1995 vide Annexure-A9, in the order, there is no whisper about any audited report being filed and seeking of benefit under Section 32 ab, the entire order of reassessment is silent with regard to this aspect of the matter. However, when the appeal was filed and the appellate authority passed the order Annexure-P12 on 24.2.1995 in paragraph-4 of the order passed by the appellate authority, it is held that with regard to allowance under Section 32ab, the appellant had sought to raise the additional ground of appeal to the effect that the appellant's claim under Section 32ab has been disallowed. The appellate authority records a finding to say that on going through the records and facts of the case, it transpires that this issue was not at all raised in the assessment proceedings, such a claim was never made either at the stage of original assessment or at the time of assessment thus the additional ground was rejected. 7. It is, therefore, clear that appellate authority has held that no such claim was raised and, therefore, the claim was rejected. Consequently meaning that the documents required for raising this claim was not presented. When the matter was place before the Income Tax Appellate Tribunal, the Tribunal also took note of the fact that for claiming the deduction of Rs.6,20,000/- under Section 32AB, the departmental representatives have specifically pointed out that the audited report was never filed but it was filed much later after the proceedings were closed and, thereafter, in paragraph-7, the tribunal has held that this issue was never raised before the Assessing Officer, when it was raised before the Commissioner, Income Tax Appeal, it was rejected for the reasons as indicated herein above and after taking note of various aspects of the matter, the learned tribunal found that the issue was never raised and the document was not produced. By upholding the finding of the appellate authority, which is a pure finding of fact with regard to filing of document under Section 32 AB and the concurrent finding in this regard raised by the Commissioner (Appeals) and the tribunal cannot be interfered with by us now in these proceedings merely because the appellant has brought on record the same for the first time in this proceeding by filing an additional affidavit. 8. The judgment relied upon by Shri A.K.Shrivastava all pertain to laying down the principle that in reassessment proceedings an audited report can be filed at any stage of the pending proceeding but this is the case where record indicates that the report was never filed, thus these judgments will not apply or help the appellant. As asserted by Shri Sanjay Lal and held by the Commissioner (Appeals) in the impugned order passed, in view of the judgment of the Supreme Court in the case of Commissioner of Income Tax Vs. Sun Engineering Works Private Limited 64 Taxman 442, we see no reason to interfere into the matter. The substantial question framed is answered by holding that the appellants having not raised the claim under Section 32AB before reassessing authority or the Appellate Authority and having not filed the relevant documents, namely, the audited report, the same cannot be considered now in this case. 9. The appeal is, therefore, dismissed. (RAJENDRA MENON) ACTING CHIEF JUSTICE (H.P. SINGH) JUDGE mrs. mishra