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TMI Blog2015 (1) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 32 of the Income Tax Act, 1961 and was claimed on the plea that the item "ready mix concrete" (RMC) being produced by the assessee amounted to manufacture of article or a thing. Against the said order of the Tribunal dated 24.09.2007, the revenue preferred an appeal before the Hon'ble High Court of Delhi viz. ITA 508/2011 in respect of AY 2004-05 and the matter has been restored back to the Tribunal for limited examination to ascertain whether the RMC manufactured by the assessee was sold to outside parties or consumed in house. The operative part of the observations and conclusion of Hon'ble Delhi High Court in ITA 508/2011 (supra) reads thus:- "Learned Tribunal as is apparent from the paragraph 7 of the impugned order dated 15th January, 2010, quoted above, has not examined and gone into the question whether RMC was utilized by the respondent assessee for its own construction activities for captive use or the RMC was sold to third parties. The said aspect is relevant and material to decide the controversy in question, in the light of the judgment of the Supreme Court in NC Budharaja (supra). "10. Ld. Counsel for the parties admit and accept that in case RMC was used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra), the Tribunal recalled its order dated 20.7.2012 for AY 2006-07 (supra) and directed the Registry to fix the case for hearing in due course. 5. It is further relevant to note that in revenue's appeal for AY 2008-09 on the same issue, ITA NO. 3602/D/11 was allowed for statistical purposes remitting back the issue to the file of AO with a direction that the AO shall pass a speaking order in accordance with law in the light of directions given by the Tribunal in its earlier order for AY 2004-05 and AY 2006-07. Subsequently, the revenue preferred MA No. 290/D/2012 in ITA No. 3602/D/2011 praying for recall of order dated 26.9.2011 for AY 2008-09 which was allowed by the Tribunal by order dated 03.01.14 recalling its order dated 21.11.2011 for AY 2008-09 (supra) and directed the Registry to fix the appeal for fresh hearing in terms of directions of Hon'ble High Court of Delhi in ITA No. 508/2011 for AY 2004-05 (supra). Hence the revenue's appeal for AY 2006-07 in ITA No. 3527/Del/2011 and ITA No.3602/D/2011 for AY 2008-09 are also clubbed together with the assessee's appeal in ITA No. 4672/Del/2007 for AY 2004-05 and revenue's appeal in ITA No. 3082/D/2010 for AY 2007-08. Finally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to reconsider the matter, more so, when it was not shown that the assessee was not granted sufficient opportunity to adduce evidence. 9. Ld. AR submitted rejoinder to the above submissions and contentions of the ld. DR and stated that the facts and circumstances of the present case are clearly distinguishable as in that case, ITAT, Jaipur Bench permitted the assessee to produce further evidence and sent back the case to ITO for examination of additional evidence but in the present case, the Tribunal was directed by Hon'ble High Court of Delhi to adjudicate the issue afresh and to reexamine the matter on merits after deciding the question whether the RMC was sold to third parties or was used/utilized in house. Ld. AR further submitted that in order to establish the fact that the entire RMC manufactured by the assesee was sold to outside parties, certain additional evidence needs to be brought on record, therefore, the details of party wise sales, details of month wise sales, details of party wise ledger for the relevant period related to all four assessment years under consideration may be admitted. Ld. AR further contended that for claiming additional depreciation, it is incumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties during the relevant period pertaining to the assessment year under consideration. 11. However, ld. DR has objected to the admissibility of additional evidence by referring the decision of Hon'ble High Court of Rajasthan in the case of CIT vs Jaipur Udyog Ltd. but the peculiar facts and circumstances of the present case are distinguishable as in the present appeals for AY 2004-05 and 2007-08, the matter has been remitted back to the Tribunal for re-examination by Hon'ble Jurisdictional High Court of Delhi and the appeals of AY 2006-07 and AY 2008-09 have been recalled and fixed for fresh hearing along with the appeals of AY 2004-05 and 2007-08. As per directions of the Hon'ble High Court of Delhi as reproduced hereinabove, the Tribunal has to decide the controversy of allowability of additional depreciation u/.s 32(1)(iia) of the Act in the light of decision of Hon'ble Apex Court in the case of N.C. Buddhiraja (supra). Thus, the assessee is duty bound to prove his claim in the light of decision of Hon'ble Supreme Court in the case of N.C. Buddhiraja and to prove that the RMC manufactured by the assessee during relevant period in all four assessment years under consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee is sold to the third parties outside and no part of RMC manufactured by the assessee had been utilized by the assessee in house, then the assessee is entitled to additional depreciation us/ 32(1)(iia) of the Act. However, ld. DR vehemently contended that the AO had no opportunity to examine audited balance sheet of the assessee, ledger account of RMC sales, summary and month wise details of RMC sales and details of party wise ledgers for the relevant period under consideration pertaining to all four assessment years. Therefore, it would not be just and proper to consider and adjudicate the issue without affording due opportunity to the AO for examining the evidence submitted by the assessee to support its claim in the light of decision of Hon'ble Apex Court in the case of N.C. Buddhiraja (supra). Ld. DR further submitted that if it is found just and proper to consider the additional evidence for the purpose of allowability of additional depreciation to the assessee u/s 32(1)(iia) of the Act, then department has no objection if the AO is given due opportunity to verify and examine the additional evidence for allowability of the claim of the assessee for additional d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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