2012 (7) TMI 615 - AT - Income Tax

Condonation of delay - delay of 529 days - sole reason given for the delay in filing this cross objection is that assessee was adviced to file this cross objection, as the re-opening was a mere change of opinion Held that - Assessee was not able to properly explain the reasons for the delay in filing the cross objection - grounds raised by the assessee dismissed Denial of Deduction under section 80IA of the Income Tax Act business of cold storage - Assessing Officer denied the deduction partially on the ground that (i) the service charges credited was on account of pasteurisation and packing of milk and cold storage Held that - Quantum of service charges was being calculated on the basis of quantum of milk packed but was charged only for cold storage - Assessing Officer has not understood the fact clearly. Packing and pasteurisation are not done by the assessee but only a place is given to Dudh Sungh - functions of Dudh Sungh and the assessee are defined in clear terms vide these agreements - it is only the methodology devised for quantifying the charges and it does not indicate that the assessee is rendering services other than cold storage - ground raised by the Revenue dismissed. Income derived from redemption of units of mutual funds - simply observed in the order that such an income bears the character of interest and as such has to be brought to tax under the head Income from Other Sources Held that - Assessing officer is therefore directed not to treat the income as interest taxable under the head Income from other sources . The income shall continue to be taxed as capital gains as claimed by the appellant.

Summary

Issues:
1. Delay in filing cross objection
2. Eligibility for deduction under section 80IA
3. Second notice under section 148
4. Disallowance of claim under section 80IA

Issue 1: Delay in filing cross objection
The Appellate Tribunal addressed the issue of a cross objection filed by the assessee with a delay of 529 days. The Tribunal found that the reasons provided for the delay were not convincing as the consultation with the counsel did not justify the delay adequately. Consequently, the Tribunal dismissed the cross objection filed by the assessee for assessment year 2001-02.

Issue 2: Eligibility for deduction under section 80IA
The Tribunal examined the eligibility of the assessee for deduction under section 80IA of the Income Tax Act. The Assessing Officer had denied the deduction partially, stating that the income derived from pasteurisation and packing of milk did not qualify for the deduction under section 80IA. However, the Commissioner (Appeals) ruled in favor of the assessee, emphasizing that the service charges were solely for cold storage and not for pasteurisation or packing of milk. The Tribunal upheld the findings of the Commissioner (Appeals) and dismissed the Revenue's appeal.

Issue 3: Second notice under section 148
Regarding the issue of a second notice under section 148 of the Act, the Tribunal upheld the Commissioner (Appeals)'s decision that no second notice could be issued once the assessment was already reopened. Therefore, the ground raised by the Revenue on this issue was dismissed.

Issue 4: Disallowance of claim under section 80IA
In a similar case for assessment year 2002-03, the Tribunal upheld the Commissioner (Appeals)'s decision to delete the disallowance of the claim made by the assessee under section 80IA. Consistent with the previous ruling, the Tribunal dismissed the Revenue's appeal on this ground as well.

In conclusion, the Appellate Tribunal dismissed the Revenue's appeals in both cases and upheld the decisions of the Commissioner (Appeals) regarding the eligibility for deduction under section 80IA. The Tribunal also dismissed the cross objections filed by the assessee due to delay and the inability to establish valid reasons for the delay. The Tribunal's rulings were based on a detailed analysis of the agreements, facts, and legal provisions involved in each issue.