M/s Bridge Stone India Pvt. Ltd., v. The DCIT, 1(2),

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JM AND SHRI V.K. GUPTA AM ITA NOS.131 & 132/IND/2008 ASSESSMENT YEAR: 2003-04 & 2004-05 M/S. BRIDGESTONE INDIA P. LTD. PLOT NO.12 KHEDA GROWTH CENTRE POST SAGORE PITHAMPUR DISTRICT DHAR (MP) - 454774 (PAN AABCB 2304 E) .....APPELLANT V/S. DY. CIT-1(2) INDORE .....RESPONDENT ASSESSEE BY : SHRI MANOJ FADNIS CA DEPARTMENT BY : SHRI K.K. SINGH CIT DR ORDER PER JOGINDER SINGH JM BOTH THESE APPEALS ARE BY THE ASSESSEE AGAINST DIFF ERENT ORDERS OF LD. CIT(A)-I INDORE DATED 2.1.2008 ON THE GROUNDS THA T THE LD. CIT(A) ERRED IN CONFIRMING THE PAYMENTS/ADDITION OF RS.1 92 18 611/ - MADE ON ACCOUNT OF SALARIES ON ACCOUNT OF FEES FOR TECHNICAL SERVICES IN CONFIRMING THAT THE DISALLOWANCE WAS COVERED BY THE PROVISIONS OF SEC. 40(A)(I) AND NOT THE PROVISIONS OF SEC. 40(A)(III) OF THE ACT AND FURTHE R ERRED IN UNDERSTANDING THE PROVISIONS OF TECHNICAL ASSISTANCE AGREEMENT AND PE RSONAL DESPATCH AGREEMENT ENTERED INTO BY THE ASSESSEE WITH ITS HOL DING COMPANY BRIDGESTONE CORPORATION JAPAN AND RS.6 31 05 254/- ON ACCOUNT OF EXPATRIATES SALARY AND REIMBURSEMENT OF EXPENSES OF RS.6 04 000/-. THE ASS ESSEE HAS ALSO 2 CHALLENGED THE ADDITION OF RS.10 23 694/- AND RS.35 064/- MADE TO M/S. INVENSYS SYSTEMS INC. AND M/S. MAPICS INCORPORATED. 2. DURING THE HEARING OF THESE APPEALS WE HAVE HEA RD SHRI MANOJ FADNIS LD. COUNSEL FOR THE ASSESSEE AND SHRI K.K. SINGH L D. CIT DR. THE ASSESSEE ALSO FILED APPLICATION FOR ADMISSION OF ADDL. EVIDE NCE UNDER RULE 30 OF APPELLATE TRIBUNAL RULES 1963. THE ASSESSEE FURNIS HED ADDL. EVIDENCE AS VOLUME (IV) OF THE PAPER BOOK WHEREIN IT WAS CLAIME D THAT THE PAPERS FROM PAGES 290 TO 425 ONWARDS WERE NOT FILED BEFORE THE LD. ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. IT WAS THEREFORE P LEADED THAT FOR FAIR CONCLUSION/JUST CAUSE THESE DOCUMENTS MAY BE ADMIT TED AS THE SAME ARE ESSENTIAL FOR THE DISPOSAL OF THE APPEALS. ON THE L AST DATE OF HEARING THE COPIES OF THE ADDL. EVIDENCE WERE SUPPLIED TO THE D EPARTMENT. 3. DURING THE HEARING OF THESE APPEALS WE HAVE HEA RD THE LD. COUNSEL FOR THE ASSESSEE AS WELL AS THE LEARNED CIT DR ON ADMIS SION OF ADDITIONAL EVIDENCE. THE ASSESSEE TOOK IDENTICAL PLEA AS HAS B EEN MENTIONED IN THE APPLICATION BY FURTHER PLACING RELIANCE UPON THE DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIA DAWOO DI BOHRA JAMAT NEEMUCH (2008) (10 ITJ 502) (MP) AND ANOTHER DECISION OF TH E TRIBUNAL IN THE CASE OF SHRI A.M. MATHUR VS. DCIT (2009) (12 ITJ 250) (INDO RE ITAT). ON THE OTHER HAND THE LD. CIT DR CONTENDED THAT THE ADDL. EVID ENCE FILED BY THE ASSESSEE WAS NEVER FILED AT ANY STAGE THEREFORE THE INTERE ST OF REVENUE MAY BE PROTECTED AS THE ASSESSEE IS UNNECESSARILY PROLONGI NG THE MATTER WITH ULTERIOR 3 MOTIVE. HOWEVER THE LEARNED CIT DR DID NOT OPPOSE IF THE MATTER IS REMANDED BACK TO THE FILE OF THE LEARNED CIT(A). 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS THE ADD L. EVIDENCE FILED BY THE ASSESSEE IS ADMITTED BECAUSE AS PER RULE 46A OF I.T . RULES THE ADDL. EVIDENCE SUBMITTED FOR THE FIRST TIME BEFORE THE TRIBUNAL WH ICH IS NECESSARY FOR THE JUST DISPOSAL OF THE APPEALS/CONTROVERSY INVOLVED MAY B E ADMITTED EVEN AT THE APPELLATE STAGE. SINCE IT IS A NEW EVIDENCE THERE FORE KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE AS NO PREJUDICE IS CAU SED TO EITHER SIDE THE ADDL. EVIDENCE IS REQUIRED TO BE LOOKED INTO BY THE LD. FIRST APPELLATE AUTHORITY. 5. IN VIEW OF THE ABOVE FACTS BOTH THESE APPEALS A RE REMANDED BACK TO THE FILE OF THE LEARNED CIT(A) WHO WILL EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE ADDITIONAL EVIDENCE AND THEN TO DE CIDE THE SAME AFRESH IN ACCORDANCE WITH LAW. OUR VIEW FINDS SUPPORTS FROM T HE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIYA DAUD I BOHRA JAMAT (SUPRA) AND SHRI A.M.MATHUR INDORE V. DCIT (SUPRA) WHEREIN VA RIOUS OTHER JUDICIAL PRONOUNCEMENTS HAVE ALSO BEEN CONSIDERED WHICH ARE NOT BEING REPEATED FOR THE SAKE OF BREVITY. THE ASSESSEE IS ALSO AT LIBERT Y TO FURNISH EVIDENCE/ADDITIONAL EVIDENCE FILED BEFORE THE TRIBU NAL FOR WHICH DUE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. THE LEARNE D CIT(A) IS ALSO AT LIBERTY TO SEEK REMAND REPORT FROM THE LEARNED AO ON THE AD DITIONAL EVIDENCE CONSEQUENTLY BOTH THESE APPEALS OF THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES ONLY. 4 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENC E OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 12 TH JANUARY 2010. ORDER PRONOUNCED IN THE OPEN COURT ON 12.1.2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:12.1.2010 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR