M/S. MALANI EXIM INTERNATIONAL,DELHI vs. ACIT, NEW DELHI

The Assessee has filed these two Appeals against the respective orders of the Ld. CIT(A)-12, New Delhi pertaining to assessment years 2006-07 & 2009-10.

2. The grounds raised in (AY 2006-07) read as under:-

the correct facts of the case is not justified in law and facts and circumstances of the case and erred in confirming the action of assessing officer in allowing the deduction u/s 10B amounting to Rs. 93,56,868/- against the correct claim of Rs. 1,07,13,615/- made by appellant firm in revised computation of income filed during the course of assessment proceeding under section 147 of the I.T. Act ignoring the return of income filed in response to notice u/s 148 in which deduction of Rs. 1,10,60,530/- was claimed under section 10B by holding that no new claim can be made in the proceedings under section 147 of the I.T. Act.

2. Ld. CIT (Appeal) without appreciating

the correct facts of the case is not justified in law and facts and circumstances of the case in confirming the action of the assessing officer in reducing the amount of interest paid of Rs. 1,27,800/-from eligible business profit under the circumstances when same was already been reduced by appellant firm to work out eligible business profit for claiming deduction u/s 10B of the I.T. Act and confirming the addition of Rs. 1,27,800/- made by Id assessing officer under the head income from other sources under the circumstances when same was already been added by assessing the business income.

3. Ld. CIT(A) is not justified in law and facts

and circumstances of the case in confirming the action of AO in charging of interest under section 234B, 23C and 234D of the I.T. Act.

4. Assessee has every right to make, add,

delete, modify or alter any grounds of appeal at the time of hearing.

3. The grounds raised in (AY 2009-10) read as under:-

1. Ld. CIT (Appeal) without appreciating the correct facts of the case is not justified in law

and facts and circumstances of the case and erred in confirming the action of assessing officer in allowing the deduction u/s 10B amounting to Rs. 80,42,667/-against the correct claim of Rs. 91,85,742/- made by appellant firm in revised computation of income filed during the course of assessment proceeding as against the claim of Rs.

1,03,51,681/- made in the return of income filed ignoring the decision of Hon’ble vs. CIT [284 ITR 323 wherein it has been held that appellate authorities are competent to entertain the claims made before them even if such claim was not made before assessing officer.

and circumstances of the case in confirming the action of assessing officer in charging of interest under section 234B, 234C and 234D of the I.T. Act.

delete, modify or alter any grounds of appeal at the time of hearing.

“That on the facts and in the circumstances of the case and in law the authorities below erred in invoking section 147/148 of the Act to reopen the case. The reopening being flawed ab initio and without jurisdiction or authority of law must be quashed.”

5.1 Ld. Counsel of the Assessee requested that keeping in view of the decision of the Hon’ble Supreme Court of India in the case of NTPC 229 ITR 383 (SC) (Supra), the aforesaid additional ground raised by the assessee in the appeal No. 797/Del/2016 (AY 2006- 07) may be admitted and requested to set aside the issues involved in the appeal on merits alongwith this additional ground to the file of the Ld. CIT(A) with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee.

“To permit the following ground to be raised as additional ground of appeal which may kindly be admitted and adjudicated:

“That on the facts and in the circumstances of the case and in law the authorities below erred in invoking section 147/148 of the Act to reopen the case. The reopening being flawed ab initio and without jurisdiction or authority of law must be quashed.”

The above ground was not taken up originally in the memo of appeal because of inadvertent omission. The ground as raised is purely legal and arises from the records as it stands. No further enquiry of a factual nature is necessary, and it is, submitted that additional ground supra may kindly be admitted and adjudicated upon.

Pleased for admission and consideration.”

7.1 After perusing the aforesaid additional ground and the relevant documents/ evidences, as aforesaid, I am of the considered view that in view of the decision of the Hon’ble Supreme Court of India in the case of NTPC Limited 229 ITR 383 (Supra), the aforesaid additional ground raised by the assessee vide Application dated 11.7.2018 is purely legal ground and did not require fresh facts which is to be investigated and goes to the root of the matter.

Therefore, in the interest of justice, I admit the aforesaid additional ground raised by the assessee, in view of the case law of NTPC Limited (Supra) and set aside the issues involved in the appeal alongwith the aforesaid additional ground to the file of the Ld. CIT(A) with the directions to decide the same afresh on merits as well as on legal, after giving adequate opportunity of being heard to the assessee. In the result, the (AY 2006-07) is allowed for statistical purposes in the aforesaid manner.

Ld. counsel for the assessee has stated that the facts and circumstances of the case and the issues involved in this appeal is identical to (AY 2006-07), as aforesaid, hence, the issues involved in this appeal i.e. in AY 2009-10 may also be set aside to the file of the Ld. CIT(A) with the directions to decide the same on merits, after giving adequate opportunity of being heard to the assessee, because in this appeal the assessee by mistake not filed the Application for additional ground. Ld. DR did not have any objection to this proposition also.

in (AY 2006-07), to the file of the Ld. CIT(A) with the directions to decide the same on merits as well as on legal. Therefore, keeping in view of the facts and circumstances of the case in view of the issues involved in this appeal being identical to (AY 2006-07), as aforesaid, the issues involved in this appeal i.e. in AY 2009-10 are also set aside to the file of the Ld. CIT(A) with the directions to decide the same on merits only, after giving adequate opportunity of being heard to the assessee.

10. In the result, both the Assessee’s appeals are allowed for statistical purposes in the aforesaid manner.

Order pronounced on 13-05-2019.