9911796707
TMI Blog2014 (11) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... e deduction u/s 80IA of the Act in spite of the fact the same was allowed in the original assessment u/s 143(3) of the Act and in the past and the reasons recorded for initiation of reassessment proceedings did not mention about the escapement of income for allowing the deduction in assessment u/s 143(3). 3. That the learned C.I.T(A) erred in upholding the disallowance of deduction of Rs. 47,77,883/- u/s 80IA in respect of income earned from the infrastructural facility provided at Nagapattinam Sea Port Tamil Nadu under License agreement with Tamil Nadu Maritime Board, copy of which was filed before both the authorities. 4. That the action of Assessing Authority and Appellate Authority for not granting deduction u/s 80IA of the Act is against the Principle of Consistency as the same was allowed to the appellant in the initial year and subsequent years in assessments made u/s 143(3) of the Act. 5. That the learned C.I.T(A) erred in upholding the disallowance u/s 14A of the Act amounting to Rs. 3,78,902/- without appreciating the facts on the record and submissions made in the Appellate proceedings. That the learned C.I.T(A) did not appreciate that the entire investment in shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted practice. 6. The ld. CIT(A) after considering the submissions of the assessee observed that Circular No. 10/2005 was issued by the CBDT on 16.12.2005 wherein a reference of the earlier circular dated 23.6.2000 was made and it was clarified that the definition of expression Port for the purpose of sec. 80IA of the Act include structures at Ports for storage, loading and unloading etc., subject to the fulfillment of the conditions requiring that the structure should have been completed under a BOT or BOLT scheme and the condition that there should be an agreement for transfer of the facility to the Competent Authority on the expiry of the stipulated period was deleted. He further observed that w.e.f assessment year 2002-03 all that was necessary was a certificate issued by the Port Authority that the structure in question forms a part of the Port. The ld. CIT(A) also observed that the assessee had filed a copy of agreement entered into with the Tamil Nadu Maritime Board regarding use of land at Nagapattinam Port but the said agreement could not be said a certificate as required under the terms of CBDT circular no. 10/2005. The ld. CIT(A) held that since the assessee had not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee submitted that the Competent Authority issued a certificate vide letter no. 8309/S3/12 dated 19.4.2013 mentioning therein allotment of land on lease basis to the assessee for a period of 15 years. This certificate was further amended vide letter no. 3884/S3/2013 dated 6.9.2013 certifying that the land belongs to Tamil Nadu Maritime Board, Chennai and the said letter could not be filed before the lower authorities as it was obtained on the date subsequent to the order passed by the ld. CIT(A) on 3.1.2013. It was contended that the assessee was not aware, under a bonafide belief, of the specific requirements in this regard, since the deduction u/s 80IA of the Act had been consistently allowed to it in the earlier years. It was stated that the documents being from a Government authority be kindly entertained as an additional evidence because they go to the root of the matter and are essential for judicious adjudication. 9. In his rival submissions the ld. DR although opposed for the admission of additional evidence but could not controvert the aforesaid contention of the ld. Counsel for the assessee that these evidence go to the root of the matter, however, he stated that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional evidence, the Hon'ble Madras High Court in the case of Anaikar Trade and Estates (P) Ltd (No.2) vs. CIT, 186 ITR 313 has held as under: "The Tribunal has discretion to allow the production of additional evidence under Rule 29 of the ITAT Rules, 1963 if the Tribunal requires any document to be produced or affidavit to be filed to enable it to pass orders or for any other substantial cause, it may allow the document to be produced or the affidavits to be filed. Even if there was a failure to produce the documents before the ITO and the A.A.C, the Tribunal has the jurisdiction in the interests of justice to allow the production of such vital documents." 14. In the present case also, 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. We, therefore, set aside the impugned order and remand the present issue back to the file of the AO to be decided afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. 15. For the aforesaid view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it stands. In the context, it was further clarified that the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the IT mind of court delivering it. This position was reiterated again by the Hon'ble Supreme Court in the case of Syed Abdul Khader Vs. Rami Reddy AIR, 1979 S.C. 553 cited by the Ld. Counsel for the assessee. In the case of Municipal Corp. of Greater Bombay Vs. Lala Panchan AIR 1965 S.C. 1008 cited by the Ld. Counsel for the assessee, it was observed by the Hon'ble Supreme Court that the power to admit additional evidence does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way and it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. In the case of Arjan Singh V. Kartar Singh AIR 1951 S.C. 193, it was held that the discretion given to the appellate court by Order 41, Rule 27 of CPC to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that Rule. It was also held that the legitimate occasion for the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate stage. The admissibility of additional evidence depends on whether or not the substantial cause and not to enable the assessee or the Department to tender fresh evidence to support a new point or to make out a new case. In the case of N. Kamalam (supra) it was held that the provisions of Rule 27 of Order 41 of CPC, 1908 are not designed to help parties to patch up weak points and make up for omissions earlier made. 33. It is also well settled that once additional evidence is taken into consideration, it has to be read as part or the record and before drawing any inference on the basis of contents of that document admitted as additional evidence, an opportunity has to be given to the other side to explain or rebut the same. As held by Hon'ble Madras High Court in the case of RSS Shanmugam Pillai & Sons (supra), if the Tribunal finds that the documents filed are quite relevant and for the purpose of deciding the issue before it, it would be well within its powers to admit the evidence, consider the same on merits or remit the matter to the lower authorities for examining the same. in the case of Smt. Urmila Ratilal (supra), Hon'ble Gujarat High Court has held that when the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o several pages, which requires in-depth examination, we find that it would be fair and proper and in the interest of justice to restore the issue relating to PE to the file of the Assessing Officer for deciding the same afresh after examining the additional evidence as well as explanation offered by the assessee while rebutting the same. The assessee shall also be at liberty to adduce further evidence to support its case before the Assessing Officer who shall take into consideration the same in accordance with law. Since the other issues raised in this appeal related to the main issue of PE, we deem it appropriate to restore these issues also to the file of the Assessing Officer for fresh decision along with the main issue. In so far as the issue relating to the levy of interest u/s 234B is concerned, the Ld. Counsel for the assessee has contended before us that the same is squarely covered in favour of the assessee by the decision of Delhi Special bench of ITAT in the case of Motorola inc. Vs. Dy. CIT (2005) 95 ITD 269. We, therefore, direct the Assessing Officer to decide the issue relating to levy of interest u/s 234B in the light of the decision of Special Bench in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
