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TMI Blog2014 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue Department - the documents furnished by the assessee are vital which go to the root of the present controversy, so these are to be admitted in the interest of natural justice but these documents are required to be examined and considered at the level of the AO – also the same has been decided in Uop Llc. Versus Additional Director Of Income-tax, International Taxation Circle-2(2), New Delhi [2006 (12) TMI 177 - ITAT DELHI-F] - thus, the matter is remitted back to the AO for fresh consideration. Disallowance u/s 14A – Held that:- Assessee submitted that the assessee was not having any exempt income so there was no question of making the disallowance u/s 14A - the disallowance under Rule 14A can be made even if there is no exempt income – the issue shall also be decided by the AO after consideration – Decided in favour of assessee. - ITA No. 1712/Del/2013, ITA No. 1713/Del/2013 - - - Dated:- 14-11-2014 - Sh. N. K. Saini, AM And Sh. H. S. Sidhu, JM,JJ. For the Petitioner : Sh. Ashwani Kumar Aditya Kumar, CA For the Respondent : Sh. Gaurav Dudeja, Sr. DR ORDER Per N. K. Saini, AM: These two appeals by the assessee are directed against the sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and therefore the same are required to be quashed. 3. Ground No. 7 is general in nature while Ground No. 1 was not pressed so these grounds did not require any adjudication on our part. Vide Grounds No. 2 to 4 the grievance of the assessee relates to the disallowance of deduction claimed u/s 80IA of the I.T Act, 1961 (hereinafter referred to as the Act). 4. Facts of the case in brief are that the assessment in this case was completed u/s 143(3) of the Act on 2.6.2010 at ₹ 19,85,966/- as against the returned income of ₹ 19,85,966/-, thereafter the case was reopened after recording the reasons u/s 148 of the Act. The assessee was deriving income from Brokerage, Trading of Oil, Storage Terminal and Transportation. The AO during the course of assessment proceedings noticed that the assessee claimed the deduction of ₹ 47,77,883/- u/s 80IA of the Act. However, the AO disallowed the said deduction claimed by the assessee on account of operation and maintenance of infrastructural facilities at the Nagapattinam Sea Port, Tamil Nadu on the plea that the assessee did not furnish the certificate that the warehouse formed part of the Port. 5. Being aggrieved the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional evidence by stating therein as under: It is respectfully prayed that while adjudicating the above appeal, the following documents may kindly be admitted as additional evidence and considered as the said documents are directly linked to the issues raised in the grounds of appeal: (1) Copy of letter dated 09.11.2012 addressed by Appellant Company to State Port Officer, Tamil Nadu Maritime Board (TNMB), Chennai. (2) Copy of letter dated 15.03.2013 addressed by the Appellant Company to the CEO, TNMB. (3) Copy of Letter No. 8309/S3/12 dated 19.04.2013 addressed by the TNMB to the Appellant Company mentioning therein allotment of land on lease basis to the Appellant Company for a period of 15 days. (4) Copy of letter dated 05.06.2013 written by the Appellant Company to TNMB requesting for issue of amended certificate. (5) Copy of Letter No. 3884/S3/2013 dated 06.09.2013 addressed to the Appellant Company certifying the land belongs to TNMB. (6) Copy of manual of TNMB clearly mentioning issue of license in Form-26 for using the port land to M/s J S Overseas Pvt. Ltd. The above mentioned documents/correspondence could not be filed before the lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he certificate from a Competent Authority that the land belonging to Tamil Nadu Maritime Board, Chennai was allotted to the assessee. The said action of the AO was confirmed by the ld. CIT(A) by observing that the assessee failed to produce the aforesaid certificate either before the AO or before him. 10.1 Now the assessee has furnished the copy of said certificate alongwith an application for admitting the same as an additional evidence under Rule 29 of the Income Tax Appellate Tribunal Rules, 1963. In the present case although the additional evidences had been furnished first time before the Tribunal but it is very much relevant and go to the root of the present controversy. Moreover, the additional evidences will not change the claim made by the assessee as the issue was already before the AO and the ld. CIT(A). 11. As per the provisions contained in Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963, the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal. The provisions contained in the said rule are pari materia with the Order 41 Rule 27 of the Code of Civil Procedure, 1908, which also does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o litigating public and allowing of production of additional evidence is in the discretion of the Tribunal. The said discretion, however, is to be exercised judicially and not arbitrarily. As held by Hon ble Madhya Pradesh High Court in the case of CIT V. Kum. Satya Setia (1983) 143 ITR 486, it is within the discretion of the appellate authority to allow production of additional evidence if the said authority requires any document to enable it to pass orders or for any other substantial cause. The Tribunal is the final fact finding body under the scheme of the Income Tax Act, 1961 and powers, therefore, have necessarily to be exercised by it for deciding the questions of fact. While exercising its powers, if the Tribunal is of the opinion that additional evidence is material in the interest of justice for deciding a particular issue, its discretion cannot be interfered with unless it has been exercised on non existing or imaginary grounds. In the case or Mahavir Singh (supra) cited by the Ld. Counsel for the assessee it was held that section 107 of CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause . There may be cases where even though the Tribunal finds that it is able to pronounce Judgment on the stage of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment it still considers that in the interest of justice, something which remains obscure, should be filed up so that it can pronounce the judgment in a more satisfactory manner. Such requirement of the Tribunal is likely to arise ordinarily when some inherent lacuna or defect becomes apparent upon its appreciation of the evidence. The power of the Tribunal to admit addition evidence in support of the claim in appeal is discretionary and no fetters can be imposed on the exercise of such power. However, as held by Hon ble Allahabad High Court in the case of Ram Prasad Sharma Vs. CIT (1979) 119 ITR 867 and by the Hon ble Andhra Pradesh High Court in the case of A. K. Babu Khan Vs. CWT (1976) 102 ITR 756 it is not an arbitrary power but it is a judicial one circumscribed by the limitations given in Rule 29 of the Appellate Tribunal Rules, 1963. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Pune Bench of ITAT in it Third Member decision that when the documents which were not available before the Assessing Officer were produced before the Tribunal for the first time and the same were admitted as additional evidence being material to be restored to the file of the Assessing Officer to verify correctness and authenticity of such documents and to adjudicate the matter afresh after providing adequate opportunity to the assessee of being heard. 48. As already noted, the additional evidence would be relevant to consider and decide the case already made out by the Revenue and it is, therefore not a case of tendering of fresh evidence by the department to support a new point or to make out a new case. According to us, the additional evidence filed by the revenue is quite relevant for the purpose of deciding the issue before us and the same, therefore, can be admitted as per rule 29 of Appellate Tribunal Rules, 1963 as held by Hon ble Madras High Court in the case of RSS Shanmugam Pi1lai Sons (supra). The said additional evidence also needs to be taken into consideration in the interest of justice for deciding the issue relating to the PE. 52. As already noted the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e file of the AO for fresh adjudication in accordance with law, after providing due and reasonable opportunity of being heard to the assessee. 17. The assessee has also raised Ground No. 5 relating to the disallowance u/s 14A of the Act. 18. During the course of hearing the ld. Counsel for the assessee submitted that the assessee was not having any exempt income so there was no question of making the disallowance u/s 14A of the Act. The reliance was placed on the following judgments of the various High Courts: CIT Vs Holcim India (P) Ltd. ITA Nos. 486/2014 and 299/2014 date of decision 05.09.2014 (Del.) CIT Vs M/s Lakhani Marketing Incl., ITA No. 970 of 2008 (O M) date of decision 02.04.2014(P H) 19. In his rival submissions the ld. Counsel for the assessee submitted that the disallowance under Rule 14A can be made even if there is no exempt income. The reliance was placed on the following cases: Cheminvest Ltd. Vs ITO (2009) 121 ITD 318 (Del.) (SB) Maxopp Investment Ltd. Vs CIT (2011) 15 Taxmann.com 390 (Del.) CIT Vs Holcim India (P) Ltd. ITA Nos. 486/2014 and 299/2014 date of decision 05.09.2014 (Del.) 20. After considering the submissions of both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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