ACIT, Erode v. M/s. SKM Animal Feeds & Foods (India) Ltd., Erode

ITA 1889/CHNY/2010 | 2002-2003
Pronouncement Date: 10-03-2011 | Result: Allowed

Appeal Details

RSA Number 188921714 RSA 2010
Assessee PAN AACCS9493E
Bench Chennai
Appeal Number ITA 1889/CHNY/2010
Duration Of Justice 4 month(s)
Appellant ACIT, Erode
Respondent M/s. SKM Animal Feeds & Foods (India) Ltd., Erode
Appeal Type Income Tax Appeal
Pronouncement Date 10-03-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 09-03-2011
Date Of Final Hearing 10-03-2011
Next Hearing Date 10-03-2011
Assessment Year 2002-2003
Appeal Filed On 10-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENNAI BEFORE SHRI ABRAHAM P. GEORGE ACCOUNTANT MWEMBER A ND SHRI GEORGE MATHAN JUDICIAL MEMBER .. I.T.A. NO. 1889/MDS/2010 ASSESSMENT YEAR : 2002-03 THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-II ERODE. V. M/S. SKM ANIMAL FEEDS & FOODS (INDIA) LTD. CHAVADIPALAYAM ROAD NANJAI UTHUKULI POST MODAKURICHI ERODE DT. PIN : 638 104. (PAN : AACCS9493E) (APPELLANT) (RESPONDENT) AND C.O. NO. 163/MDS/2010 (IN ITA NO. 1889/MDS/2010) ASSESSMENT YEAR 2002-03 M/S. SKM ANIMAL FEEDS & FOODS V. THE ASST. COMMISSIONER OF (INDIA) LTD. INCOME-TAX CIRCLE -II CHAVADIPALAYAM ROAD NANJAI ERODE. UTHUKULI POST MODAKURICHI ERODE DT. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL ASSESSEE BY : SHRI N.C. RAVIKRISHNAN I.T.A. NO.1889/MDS/2010 & CO 163/MDS/2010 2 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : ITA NO. 1889/MDS/2010 IS AN APPEAL FILED BY THE RE VENUE AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-I COIMBATORE IN APPEAL NO. 307/09-10 DATED 09-08-2010 FOR THE ASSESSMENT YEAR 2002-03. C.O. N O. 163/MDS/2010 IS THE CROSS OBJECTION FILED BY THE ASSESSEE IN ITA NO. 18 89/MDS/2010. 2. SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL REPR ESENTED ON BEHALF OF THE REVENUE AND SHRI N.C. RAVIKRISHNAN ADVOCATE REPRES ENTED ON BEHALF OF THE ASSESSEE. 3. AT THE TIME OF HEARING IT WAS SUBMITTED BY THE L EARNED AUTHORISED REPRESENTATIVE THAT IN THE CROSS OBJECTION THE ASSE SSEE HAS SUPPORTED THE ORDER OF THE LEARNED CIT(A) IN GROUNDS NO.1 2 & 3 AND IN GROUND NO.4 THE ASSESSEE HAS CHALLENGED THE RE-OPENING OF THE ASSESSMENT AS BEING TIME BARRED. IT WAS THE SUBMISSION THAT THE ORIGINAL ASSESSMENT IN THE ASSESSEES CASE WAS MADE UNDER SECTION 143(1) OF THE INCOME TAX ACT 1961 WH ICH WAS PROCESSED ON 11- 03-2003 AND NOTICE U/S 148 WAS ISSUED ON 25.2.2009 AND CONSEQUENTLY IN VIEW OF THE PROVISO TO SECTION 147 THE RE-OPENING WAS BA D IN LAW INSOFAR AS IT WAS TIME BARRED. 4. IN REPLY THE LEARNED DR SUBMITTED THAT AS THE O RIGINAL ASSESSMENT WAS U/S 143(1) AND NOT U/S 143(3) IN VIEW OF THE DECISI ON OF THE HON'BLE SUPREME I.T.A. NO.1889/MDS/2010 & CO 163/MDS/2010 3 COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCO ME-TAX V. RAJESH JHAVERI STOCK BROKERS P. LTD. REPORTED IN 291 ITR 500 THE RE-OPENING WAS VALID. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE LIMITATION OF FOUR YEARS AS PROVIDED IN THE PROVISO TO SECTION 147(1) IS SUBJECT TO THE CONDITION THAT AN ORIGINAL ASSESSMENT HAS BEEN DONE U/S 143(3) AND AS IT IS NOTICED THAT IN THE PRESENT CASE THERE IS NO ASSESS MENT U/S 143(3) AND THE ASSESSMENT WAS U/S 143(1) IN VIEW OF THE PRINCIPLE S LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK B ROKERS P. LTD. REFERRED TO SUPRA THE RE-OPENING OF THE ASSESSMENT IS FOUND TO BE VALID AND NOT TIME BARRED. 6. ON MERITS IT WAS SUBMITTED BY THE LEARNED DR IN REGARD TO THE REVENUES APPEAL THAT THE LEARNED CIT(A) HAD HELD THAT THE PR OVISIONS OF SECTION 35DDA OF THE INCOME TAX ACT 1961 DID NOT APPLY IN REGARD TO THE RETRENCHMENT COMPENSATION PAID BY THE ASSESSEE ON THE RETRENCHME NT OF THE 237 EMPLOYEES ON THE GROUND THAT THERE WAS NO SCHEME OF VOLUNTARY RETIREMENT AS PER THE PROVISIONS OF SEC. 35DDA. IT WAS THE SUBMISSION TH AT THE EVIDENCES WHICH WERE PRODUCED BEFORE THE LEARNED CIT(A) WERE NOT BEFORE THE ASSESSING OFFICER. IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION. 7. IN REPLY THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE RETRENCHMENT WAS UNDER THE INDUSTRIAL DISPUTES ACT AND THERE WAS NO SCHEME OF I.T.A. NO.1889/MDS/2010 & CO 163/MDS/2010 4 RETRENCHMENT OR VOLUNTARY RETIREMENT AS PER THE PRO VISIONS OF SECTION 35DDA. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CI T(A). HOWEVER IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING WHETHER THERE WAS A NY SCHEME OF VOLUNTARY RETIREMENT AS PROVIDED UNDER THE PROVISIONS OF SECT ION 35DDA. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. HERE WE MAY SPECIFICALLY MENTION THAT THE PAPERS AS PLACED BEFORE THE LEARNE D CIT(A) HAVE NOT BEEN FILED BEFORE US. CONSEQUENTLY WE ARE ALSO UNABLE TO VER IFY AS TO WHETHER THE RETRENCHMENT OF THE EMPLOYEES WERE AS PER ANY SCHEM E PROVIDED UNDER THE PROVISIONS OF SECTION 35DDA. IN THESE CIRCUMSTANCE S WE ARE OF THE VIEW THAT THIS ISSUE WOULD HAVE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE- ADJUDICATION AND WE DO SO. THE ASSESSEE SHALL PROD UCE ALL THE EVIDENCES BEFORE THE ASSESSING OFFICER AND SHALL CO-OPERATE BEFORE T HE ASSESSING OFFICER IN THE SET ASIDE PROCEEDINGS TO SHOW THAT THERE WAS NO SCHEME OF VOLUNTARY RETIREMENT AS PER THE PROVISIONS OF SECTION 35DDA. IF IT IS SHOW N THAT THERE IS NO SCHEME OF VOLUNTARY RETIREMENT AS PROVIDED IN THE PROVISIONS OF SEC. 35DDA THEN OBVIOUSLY THE PROVISIONS OF SECTION 35DDA WOULD NOT APPLY. I N THE CIRCUMSTANCES THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF T HE ASSESSING OFFICER FOR RE- ADJUDICATION AND THE ASSESSEE SHALL CO-OPERATE IN T HE SET ASIDE PROCEEDINGS BY PRODUCING ALL THE DETAILS BEFORE THE ASSESSING OFFI CER. IN THE CIRCUMSTANCES THE I.T.A. NO.1889/MDS/2010 & CO 163/MDS/2010 5 APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PU RPOSES AND THE CROSS OBJECTION OF THE ASSESSEE STANDS DISMISSED. 9. THE ORDER WAS PRONOUNCED IN THE COURT ON 10/03/2 011. SD/- SD/- (AABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 10 TH MARCH 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE