ITO, UTTRAKHAND vs. M/S. SHANTI REFREGERATION INDUSTRIES,, UTTRAKHAND

ORDER PER H.S. SIDHU : JM The Revenue has filed these 03 appeals against the respective impugned orders passed by the Ld. Commissioner of Income Tax (Appeals)-II, Dehrdaun relevant to assessment years 2008-09 to 2010-11.

Since the issues involved in these appeals are common and identical, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience.

i) In the fact and circumstance of the case, the Ld. CIT (A) has erred in law & on facts in allowing dedication u/s 8OIC the LT. Act 1961 to the assessee without appreciating the clear finding given by the Assessing Officer on the basis of physical inspection during survey proceedings that the machinery installed was old and previously used to such extent which makes the assesses ineligible for deduction u/s801C as per the provisions contained in the said section.

(ii) Ld.CIT (A) also erred in law & on fact in allowing deduction u/s 80lC to the assessee on the basis of certificate from a Chartered Engineer without questioning the reason as to why such certificate was not production before the Assessing Officer inspite of ample opportunity given by him to the assessee during assessment preceding.

(iii) Ld.CIT (A) also erred in law & on facts in allowing relief to the assessee without considering the discrepancies in the bills. and certificate of Chartered Engineer furnished by the assessee whereas the Assessing Officer in the assessment order as well as during appellate proceeding had clearly remarked regarding the discrepancies contained therein which eventually make the plea of the assessee incorrect.

(iv) Ld.CIT(A) also erred in law & on facts in admitting the additional evidence in complete disregard of the fact that none of the four circumstances under Rule 46A were present in the case to warrant admittance of fresh evidence furnished by the assesses for the first time in appellate proceeding.

(v) On facts and circumstances of the case Ld. CIT(A) has erred in law and on facts in allowing appeal on the issue of disallowance of depreciation particularly in view of the fact that the Plant & Machinery was old and previously used.

(vi) Any other grounds raised during the proceedings of appeal.

2. That the order of the Ld. CIT(A), is against the spirit of legislature and the order of the AO is liable to be restored.

3. That the appellant craves, leave to add, after, amend or vary from the above grounds of appeal.

4. The grounds raised in (AY 2010-11) read as under:- 3

1. That the Ld. CIT(A)-II, Dehradun has erred in law and on fact in allowing deduction u/s. 80IC of the I.T. Act without appreciating the clear finding on the basis of physical inspection during survey proceedings that the machinery installed was old and previously used to such extent which makes the assessee ineligible for deduction u/s. 80IC of the I.T. Act, 1961 as per the provision contained in the said section.

2. That the order of the Ld. CIT(A), is against the spirit of legislature and the order of the AO is liable to be restored.

3. That the appellant craves, leave to add, after, amend or vary from the above grounds of appeal.

7. On the contrary, Ld. Counsel of the assessee has relied upon the order passed by the Ld. CIT(A) and stated that the assessee has filed all the evidences before the AO as well as before the Ld. CIT(A) and requested to uphold the impugned order passed by the Ld. CIT(A).

8. After hearing both the parties and perusing the records available with us, especially the impugned order passed by the Ld. CIT(A) for the assessment year 2008-09, we are of the considered view that since the assessment was completed after giving proper opportunities, sufficient time and after taking into consideration all the written / documents, therefore, admission of additional evidence at the appellate stage is not justified. We also note that Assessee has filed the additional evidences only before the Ld. CIT(A) and the Ld. CIT(A) in violation of Rule 46A of I.T. Rules, 1962 has admitted the additional evidences which is contrary to principles of natural justice. But, in the interest of justice, we are setting aside the issues in dispute to the file of the AO for fresh consideration, as per law, after giving adequate opportunity of being heard to the assessee. The Assessee is at liberty to produce any evidence/ additional evidences for substantiating its claim before the Assessing Officer and fully cooperate with him.

9. Since we have already set aside the issues in dispute to the file of AO for the assessment year 2008-09, as aforesaid, for fresh adjudication, therefore, the issues involved in assessment year 2009-10 & 2010-11 are also set aside to the file of AO with the similar directions, as aforesaid, being the issues identical and similar and also due to the fact that Ld. CIT(A) has followed his finding of assessment year 2008-09.

Order pronounced in the Open Court on 05/10/2017.