Agemo Exim Ltd., v. Asst. CIT Cir. I,

ITA 1715/DEL/2008 | 2000-2001
Pronouncement Date: 12-05-2010 | Result: Allowed

Appeal Details

RSA Number 171520114 RSA 2008
Assessee PAN AANCS9376H
Bench Delhi
Appeal Number ITA 1715/DEL/2008
Duration Of Justice 2 year(s) 7 day(s)
Appellant Agemo Exim Ltd.,
Respondent Asst. CIT Cir. I,
Appeal Type Income Tax Appeal
Pronouncement Date 12-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 12-05-2010
Date Of Final Hearing 12-05-2010
Next Hearing Date 12-05-2010
Assessment Year 2000-2001
Appeal Filed On 05-05-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : G NEW DELHI) BEFORE SHRI A.D. JAIN JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NOS.1712 &1713/DEL./2008) (ASSESSMENT YEARS : 1999-2000 & 2000-01) SEJAI INTERNATIONAL LTD. VS. ACIT CIRCLE I C/O ASHWANI KUMAR JAIN DIRECTOR MEERUT. 82/1 RAILWAY ROAD MEERUT CITY-250002. (PAN/GIR NO.AANCS9376H) AND ITA NOS.1714 &1715/DEL./2008) (ASSESSMENT YEARS : 1999-2000 & 2000-01) AGEMO EXIM LTD. VS. ACIT CIRCLE 1 C/O ASHWANI KUMAR JAIN DIRECTOR MEERUT. MEERUT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI JAIN AR. REVENUE BY : SHRI GAJANAND MEENA/KISHORE B SR.DR ORDER PER BENCH : OUT OF THESE FOUR APPEALS WHICH ARE BY THE TWO ASS ESSEES DIRECTED AGAINST THE 4 SEPARATE ORDERS OF CIT(A) MEERUT TWO APPEALS ARE AGAINST THE ORDER OF LD.CIT(A) MEERUT DATED 19.2.2008 FOR AY 1999-2000 IN THE CASE OF AGEMO LEATHER COMPONENTS PVT. LTD. AND DATED 3.3.2008 FOR AY 1999-2000 IN TH E CASE OF SEJIA INTERNATIONAL LTD. THE REMAINING TWO APPEALS ARE ALSO ASSESSEES APPEALS W HICH ARE DIRECTED AGAINST SEPARATE ORDERS OF CIT(A) MEERUT DATED 19.02.2008 FOR AY 20 00-01 IN THE CASE OF AGEMO LEATHER COMPONENTS PVT. LTD. AND DATED 24.3.2008 FO R AY 2000-01 IN THE CASE OF SEJIA INTERNATIONAL LTD.. ALL THESE FOUR APPEALS WERE HE ARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.1712 1713 1714 & 1715/DEL./2008 (AYS : 1999-2000 & 2000-01) 2 2. BRIEFLY STATED THE FACTS ARE THAT IN BOTH THE Y EARS BOTH THE ASSESSEES HAD CLAIMED DEDUCTION U/S 80HHC ON ACCOUNT OF EXPORTS. THIS CLA IM OF THE ASSESSEE WAS REJECTED BY THE AO MAINLY ON THE BASIS THAT THE EXPORTS OF THES E TWO ASSESSEES IN THESE TWO YEARS ARE BOGUS EXPORTS. THIS VIEW WAS TAKEN BY THE AO PRIMA RILY ON THE BASIS THAT THERE WAS A SEARCH ACTION BY CUSTOMS AUTHORITIES IN THE ASSESSE ES GROUP OF CASES AND AS A RESULT OF THIS SEARCH IT HAD BEEN FOUND THAT THE ASSESSEE CO MPANY AND ITS GROUP HAD INDULGED INTO FRAUDULENT PRACTICES REGARDING ITS EXPORT ACTIVITIE S. FOR AY 1999-2000 IN BOTH THESE CASES ONE MORE REASON IS GIVEN BY THE AO THAT NO B OOKS WERE PRODUCED BY THE ASSESSEE AND THE REASON GIVEN WAS THAT SOME RIOTS HAD TAKEN PLACE AND THE BOOKS WERE DESTROYED IN THESE RIOTS. IN SUPPORT OF THIS CLAIM REGARDING RI OT CERTAIN EVIDENCES WERE PRODUCED BY THE ASSESSEE BEFORE THE AO SUCH AS NEWSPAPER CUTTIN GS ETC. BUT THE AO WAS NOT SATISFIED ON THIS ASPECT AND IT HAS BEEN STATED BY HIM IN THE ASSESSMENT ORDER THAT INTIMATION WITHOUT AN FIR HAS NO VALUE AS A CONCLUSIVE PROOF A ND HENCE NON-PRODUCTION OF BOOKS IS BEING TREATED AS AN ATTEMPT ON ASSESSEES PART TO H IDE FACTS FORM THE INCOME-TAX AUTHORITIES. SUCH DISALLOWANCE OF DEDUCTION U/S 80 HHC HAS BEEN UPHELD BY THE CIT(A) IN BOTH THESE CASES FOR BOTH THESE YEARS AND FOR TH IS REASON THE ASSESSEES ARE IN APPEAL BEFORE US. 3. IN THE VERY BEGINNING IT WAS ENQUIRED BY THE BE NCH AS TO WHAT HAPPENED IN THE PROCEEDINGS INITIATED BY CUSTOMS AUTHORITIES AFTER THE SEARCH WAS UNDERTAKEN BY THEM. IN REPLY IT WAS SUBMITTED BY SHRI ASHWANI JAIN DIREC TOR OF THESE TWO COMPANIES THAT THOSE PROCEEDINGS ARE STILL PENDING. IT WAS SUBMITTED BY HIM THAT ON THE BASIS OF THOSE PROCEEDINGS OF CUSTOMS AUTHORITIES THE CLAIM OF TH E ASSESSEES REGARDING EXPORT IN INCOME-TAX PROCEEDINGS CANNOT BE DECIDED AND THE SA ME SHOULD HAVE BEEN DECIDED BY THE INCOME-TAX AUTHORITIES INDEPENDENTLY. AT THIS JUNC TURE IT WAS POINTED OUT BY THE BENCH THAT EVEN WHILE DECIDING THIS ASPECT INDEPENDENTLY INCOME-TAX AUTHORITIES HAVE TO CONSIDER THE FINAL FINDING IN THE PROCEEDINGS INITI ATED BY CUSTOMS AUTHORITIES BECAUSE THE EXPORTS ARE DIRECTLY AND PHYSICALLY HANDLED BY THEM . THEY EXAMINE THE GOODS AND PROVIDE CUSTOMS CLEARANCE. IT WAS PROPOSED BY THE BENCH THAT NO REAL PURPOSE WOULD BE SERVED BY KEEPING THESE APPEALS PENDING AT ITAT BEC AUSE EVEN AFTER FINAL DECISION IN THE PROCEEDINGS INITIATED BY THE CUSTOMS AUTHORITIES T HE MATTER HAS TO GO BACK TO THE AO FOR ITA NOS.1712 1713 1714 & 1715/DEL./2008 (AYS : 1999-2000 & 2000-01) 3 A FRESH DECISION AFTER CONSIDERING THAT FINAL DECIS ION IN THE PROCEEDINGS INITIATED BY CUSTOMS AUTHORITIES AND HENCE THE MATTER MAY BE RES TORED BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER FINAL DECISION IN THE PROCEEDINGS INITIATED BY CUSTOMS AUTHORITIES IN THE CASE OF THESE TWO ASSESS EES FOR THESE TWO YEARS. IN REPLY SHRI ASHWANI KUMAR DIRECTOR OF THESE TWO COMPANIES AGRE ED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO WITH SUITABLE DIRECTIONS . LD.DR OF THE REVENUE ALSO AGREED SUBJECT TO THIS SUBMISSION BY HIM THAT THE ASSESSEE S SHOULD PRODUCE THE BOOKS OF ACCOUNT AND OTHER RELEVANT RECORDS BEFORE THE AO TO ENABLE THE AO TO EXAMINE THE CLAIM OF THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE GONE THROUGH THE MATERIAL ON RECORD. WE ARE IN AGREEMENT WITH SHRI ASHWANI JAIN DIRECTOR OF THE ASSESSEES COMPANIES THAT EVEN AFTER DECISION IN THE PROCEEDIN GS INITIATED BY CUSTOMS AUTHORITIES THE MATTER HAS TO BE DECIDED BY INCOME-TAX AUTHORIT IES INDEPENDENTLY BUT STILL WE FEEL THAT WHILE DECIDING THE SAME THE AO SHOULD HAVE TH E BENEFIT OF FINAL DECISION IN THE PROCEEDINGS INITIATED BY CUSTOMS AUTHORITIES AND HE NCE WE SET ASIDE THE ORDER OF THE CIT(A) IN BOTH THESE CASES FOR BOTH THE YEARS AND R ESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE AO FOR A FRESH DECISION. THE ASSESSEES SHOU LD FURNISH TO THE AO THE COPY OF DECISION OF CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL (CESTAT) IN CONNECTION WITH PROCEEDINGS INITIATED BY CUSTOMS AUTHORITIES A ND THEREAFTER THE AO SHOULD DECIDE THE ISSUE AFRESH AS TO WHETHER THE ASSESSEE IS ELIG IBLE FOR DEDUCTION U/S 80HHC OR NOT. THE ASSESSEE SHOULD ALSO PRODUCE BEFORE THE AO THE BOOKS OF ACCOUNT FOR AY 2000-01 IN CASE OF BOTH THE ASSESSEES ALONG WITH OTHER DETAILS AND DOCUMENTS REQUIRED BY THE AO FOR THIS PURPOSE. AS REGARDS BOOKS OF ACCOUNT FOR AY 1 999-2000 IT WAS THE SUBMISSION OF SHRI ASHWANI JAIN DIRECTOR OF THESE TWO ASSESSEES COMPANIES THAT THE SAME CANNOT BE PRODUCED BECAUSE THEY WERE DESTROYED IN RIOT. IN T HIS REGARD WE FEEL THAT WHETHER THE EXPORTS ARE GENUINE OR BOGUS THIS QUESTION IS NOT DEPENDING MERELY ON THE BOOKS OF ASSESSEE AND THAT ASPECT CAN BE EXAMINED FROM THE O THER DOCUMENTS SUCH AS SHIPPING BILLS BILL OF LADING ETC. THE ASSESSEE SHOULD FUR NISH ALL THOSE DOCUMENTS IN BOTH YEARS IN SUPPORT OF ITS CLAIM REGARDING EXPORTS INCLUDING CO MPLETE NAME AND ADDRESSES OF THE PARTIES TO WHOM EXPORTS WERE MADE AND THE ASSESSEE SHOULD ALSO FURNISH THE CONFIRMATION ITA NOS.1712 1713 1714 & 1715/DEL./2008 (AYS : 1999-2000 & 2000-01) 4 CERTIFICATE FORM THOSE OVERSEAS BUYERS. THE ASSESS EE SHOULD ALSO FURNISH CERTIFICATES FORM BANK THROUGH WHICH EXPORT PROCEEDS ARE REALIZED BY THE ASSESSEE IN CONVERTIBLE FOREIGN EXCHANGE. FOR PURCHASES THE ASSESSEE SHOULD PROVI DE NAMES AND ADDRESSES OF SUPPLIERS ALONG WITH BILLS ETC. ALL THESE EVIDENCES AND DETA ILS SHOULD BE PRODUCED BY THE ASSESSEE BEFORE THE AO ALONG WITH BOOKS OF ACCOUNT ETC. FOR AY 2000-01 AND THEREAFTER THE AO SHOULD PASS NECESSARY ORDERS AS PER LAW AFTER PROVI DING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN VIEW OF OUR DECISION AS ABOVE NO ADJUDICATIO N IS CALLED FOR ON MERIT AT THIS STAGE. 6. IN THE RESULT ALL THE FOUR APPEALS OF THE ASSES SEES ARE ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING I.E. 12.05.2010. SD/- SD/- (A.D.JAIN) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED MAY 12 2010. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A) MEERUT. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. BY ORDER (ITAT NEW DELHI). ITA NOS.1712 1713 1714 & 1715/DEL./2008 (AYS : 1999-2000 & 2000-01) 5