TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 848
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....red on facts and in law in admitting and relying upon the new additional evidence/ documents in order to delete the addition which was hitherto not before the Assessing Officer during the course of assessment proceedings even though the assessee was given sufficient opportunity to prove his claim, but he failed to prove his claim despite onus to prove was on him thus denial of deduction was completely in line with the provisions of law and therefore, submissions made should not be admitted." 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in admitting new additional evidence even though it did not contain any reason as to how any of the circumstances mentioned in clause (a) to (d) of Rule ' 46A(1) had been found to exist so as to justify admission of the new additional evidence, therefore, it is evident that the new additional evidence had been admitted by the Commissioner of Income Tax (Appeals) contrary to the provisions of Rule 46A of the Income Tax Rules, 1962." 4. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in deleting the addition in question by relying upon fresh ....
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....y, alternator and the end product i.e. D.G. Set is combination of above inputs and thus no new product has come into existence and thus was not entitled to deduction u/s 80IB of the Income Tax Act, 1961." 4. That the appellant craves for the permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal. I.T.A. No. 767/DEL/2012 (A.Y. 2008-09) 1. "On the facts and in the circumstances of the case, the Ld.CIT(A) has erred on facts and in law in deleting the disallowances made by the Assessing Officer on a/c of (i) deduction of Rs. 20,12,90,524/- claimed by the assessee u/s 80IB and (ii) deduction of Rs. 2,05,80,440/- u/s 80IC of the Income Tax Act, 1961 even though the assessee was not manufacturing any article or thing. The deductions-claimed by him u/s 80IB and 80IC of the Income Tax Act, 1961 of profits in respect of a unit set up in Jammu and Kashipur amounting to Rs. 20,12,90,524/- and Rs. 2,05,80,440/- respectively were not allowable as it does not satisfy the requirements of the aforesaid sections". 2. "On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in allowing deductions u/....
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....es claimed have been obtained and place in the file. Books of accounts and vouchers have also been produced and examined on test check basis. The assessment in this case was completed vide order u/s 143(3) of the Income Tax Act, 1961 dated 31-12-2008 at an income of Rs. 10,87,88,520/-. The Assessing Officer denied the assessee's claim of deduction u/s 80IB of the Income Tax Act, 1961 amounting to Rs. 10,02,89,361/- on the ground that the assessee was not manufacturing D.G. sets and pre-fabricated shelters at Jammu unit. 4. For A.Y. 2007-08, the Assessee furnished its return u/s 139 (1) of the Act on 31.10.2007 declaring a taxable income of Rs. 49,13,508/- after claiming a deduction of Rs. 24,66,58,751/- u/s 80IB out of the gross total income of Rs. 25,16,91,009/- which was subsequently processed u/s. 143(1) at the returned income. In the assessment u/s 143(3), the final taxable income was determined at Rs. 26,19,22,380/- in which the A.O. denied the assessee's claim of deduction u/s 80IB on the ground of the last year that the assessee was not manufacturing DG sets at Jammu Unit, (and adding it in the computation of total income, which is evidently not appropriate and cogent, as c....
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....various services like installation and AMCs of DG sets etc.) i.e. the non exempt units, the assessee debited certain expenses, which were not pertaining specifically to Delhi and Faridabad units but to all the units. Such expenses was quantified at Rs. 26,82,288/- and allocated to all the units in certain ratios as mentioned in the order thereby reducing the profits of exempt units and consequential claim of deduction u/s 80IB and 80IC, without prejudice to his decision of non eligibility of claim of deduction u/s 80IB and 80IC and in alternative, if the exempt units are held to be eligible to claim of such deduction. The assessee claimed deduction u/s 80IB of the Act in respect of Excise Duty refund of Rs. 4,20,70,384/- received by M/s GSP Power Projects, Jammu and Rs. 17,16,878/- received by M/s GSP Structures, Jammu. The AO relying on the decision of Liberty India vs. CIT 317 ITR 218 (SC) held that the excise duty refund as profits not derived from the industrial undertaking and not eligible for deduction u/s 80IB of the Act. 6. For A.Y.2009-10, on the similar lines of A.Y. 2008-09, the AO made additions. 7. The assessee preferred an appeal before the CIT(A) against the order ....
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....ught before the CIT(A) was part of the books of accounts before the Assessing Officer and were also examined, but the AO did not commented on the same. The CIT(A) held that the evidences clearly point to the fact that the assessee was manufacturing and not rading in DG sets. The same was clearly set out in paras 19, 20, 21, 22, 23 and 24 of the CIT(A)'s order. Thus, the CIT(A) held that the assessee conclusively proved by various evidences on record that assessee was manufacturer of both DG sets and pre-fabricated shelters, and there is no trading of the D.G. Sets and prefabricated shelter, assessee is entitled for deduction u/s. 80IB of the Act and granted the same. 9. For A.Y. 2007-08, the CIT(A) allowed the deduction u/s. 80IB to the assessee. As relates to issue of disallowance u/s 40(a)(ia) of the Act, the CIT(A) allowed the same by holding that for the year under consideration, no liability for deduction of TDS u/s. 194C(1) was attracted, therefore, the same disallowance was deleted by the CIT(A). 10. For A.Y. 2008-09, the CIT(A) allowed the deduction u/s 80IB of the Act on the basis of the earlier CIT(A)'s orders for A.Ys. 2006-07 & 2007-08. The CIT(A) held that the facts ....
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..... The Ld. DR further submitted that the assessee's manufacturing activities were in Delhi but only billing is done in Jammu, it is just trading and not manufacturing. Therefore, the claim for Section 80IB of the Act does not sustain. For A.Y. 2007-08, the final taxable income was determined at Rs. 26,19,22,380/- in which the A.O. denied the assessee's claim of deduction u/s 80IB on just and proper ground of the last year that the assessee was not manufacturing DG sets at Jammu Unit, (and adding it in the computation of total income, which is evidently not appropriate and cogent, as chapter VI deductions are made out of the Gross Total Income) and also effected an addition u/s 40(a)(ia) of the Act amounting to Rs. 1,03,50,120/-. For A.Y. 2008-09 and 2009-10, relating to Excise Duty Refund, the AO rightly relied upon the decision in case of Liberty India vs. CIT 317 ITR 218 (SC) wherein it was held that the excise duty refund as profits not derived from the industrial undertaking and not eligible for deduction u/s 80IB of the Act. As relates to the other issues the Ld. DR relied upon the Assessment Orders. 13. The Ld. AR relied upon the orders of the CIT(A) in all the Assessment Yea....
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....at all, essentially for the requisite verification, not even the production of the persons desired by her, Further, these above parties have submitted the information and the documents which were either produced at the time of assessment proceeding or, even the site was visited by the A.O in the case of Vodafone on 29/12/2008, as informed by them in their letters dated 6/3/2009 & 30/3/2009 in the fresh enquiries by the A.O. As far as the enquiries from M & M is concerned, there is only one order-sheet entry dated 15/4/2009 whereby the requisite documents were furnished by it and were placed on record by the A.O. I have perused these documents on record regarding M & M which clearly establish the case of the appellant in disproving the unfounded inferences of the A.O from the analysis of the information (which was not at all desirable or necessary for conducting the verification aimed at by the A.O). It is established that both the documents No: 1580 & 1588 stand rather authenticated as nothing goes against the appellant from the material gathered on record by the A.O. Therefore, despite the fact that the A.O has made extensive enquiries beyond the scope of Rule 46A(3), these docume....
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....ined by her but it appears that while passing her assessment order, she has chosen not to comment on the same ostensibly for the reason that there is nothing adverse qua these evidences. All these evidences clearly point to the fact that the assessee was manufacturing and not trading in DG Sets. Since the A.O. has not commented on these facts in her assessment order nor has filed her comments on the submissions made by the appellant before me, it is apparent that there is no infirmity in the above facts and it stands proved from the assessee's own books that the appellant was involved in a manufacturing process. Besides proving this fact from his own books, the appellant has also filed third parties (governmental authorities) evidences in the form of registration with SSI, Sales Tax authorities at Jammu, directorate of Industries and Commerce, Jammu and Kashmir and excise registration certificate which clearly state that the appellant has been registered with the statutory authorities for manufacturing of DG Sets/ Pre-fabricated shelters. These evidences speak by themselves that the appellant was manufacturing DG sets. For example, the analysis of the document No. 1520 pertaini....
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....ed, apart from the third party evidences produced during the course of assessment and appeal proceedings, the preponderance of which proves that the appellant in M/s GSPP produced a distinct and new commodity after a transformation from the raw materials employed by him, and hence there was a "manufacture", not a "trade", in view of the decisions of the Apex Court in the cases of Name Tulaman Manufacturers Pvt. Ltd. Vs. Collector of Central Excise, (1990) 183 ITR 577 (SC), CIT Vs. N.C. Budhiraja & Co. & Another, (1993) 209 ITR 412 (SC), and Arthur E. Newell Vs. CIT (1997) 223 ITR 776. The A.O's reference to the words "manufacture"," manufacture/produce" and "article or thing" explained in para 4.2, 4.3 and 4.4 of her order, is only general, and rather proves the case of the assessee in all respects, and entitles the assessee to claim deduction u/s 80 IB of the I.T. Act, 1961. It can be seen that the assessee has produced certain additional evidence before the CIT(A) which was rightly admitted by the CIT(A). As per the facts and circumstances it cannot be held that CIT(A) violated Rule 46A, he had acted in a judicious and proper manner and his order being based on proper appre....
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....08. The CIT(A) held that as per the provisions of Section 194C which was made effective by the Finance Act 2006 and the Finance Act 2007 and amendment was made w.e.f 1/6/2007. The CIT(A) further held that the provisions of Section 194C (a) does not become applicable in the instant case because the assessee is an individual being the proprietor of M/s GSP Power Projects and M/s Cromwell Industries with the Assessment Year involved under reference is 2007-08 i.e after 1/6/2007 since for the year under consideration no liability for deduction of TDS u/s 194C (1) is attracted in the present case. The Assessing Officer's attempt in disallowing the amount u/s 40(a)(ia) is unwarranted. There is no need to interfere with the said findings. Therefore, this ground of appeal for Assessment Year 2007-08 taken by the Revenue is dismissed. 17. As related to issue relating to Excise Duty refund, the CIT(A) has rightly relied upon the Hon'ble Supreme Court decision in case of Liberty India 317 ITR 218 wherein it is held that the payment f Central Excise Duty had a direct nexus with the manufacturing activity and similarly of the refund of Central Excise Duty also had a direct nexus with the m....