M/S. Nabisco Confectionery & Food(s) Pvt. Ltd., Kolkata v. ITO, Ward-12(4), Kolkata, Kolkata

ITA 2241/KOL/2014 | 2007-2008
Pronouncement Date: 29-04-2015

Appeal Details

RSA Number 224123514 RSA 2014
Assessee PAN AABCN6222D
Bench Kolkata
Appeal Number ITA 2241/KOL/2014
Duration Of Justice 4 month(s) 11 day(s)
Appellant M/S. Nabisco Confectionery & Food(s) Pvt. Ltd., Kolkata
Respondent ITO, Ward-12(4), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 29-04-2015
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 29-04-2015
Assessment Year 2007-2008
Appeal Filed On 18-12-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH JM & SHRI B. P. JAIN AM ] I.T.A NO. 2241 /KOL/201 4 ASSESSMENT YEAR : 200 7 - 0 8 M/S. NABISCO CONFECTIONERY & FOOD(S) PVT. LTD. VS. INCOME - TAX OFFICER WD - 12(4) KOL (PAN: AABCN6222D) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 0 1 .0 4 .2015 DATE OF PRONOUNCEMENT: 29. 04 . 2015 FOR THE APPELLANT: SHRI S . M. SURANA ADVOCATE FOR THE RESPONDENT: S HRI RAVI JAIN CIT DR ORDER PER SHRI MAHAVIR SINGH JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF REVISION ORDER OF CIT - IV KOLKATA DATED 17.10.2014. ASSESSMENT WAS FRAMED BY ITO WARD - 12(4) KOLKATA U/S. 254/143(3) OF THE INCOME - TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR AY 2007 - 08 V IDE HIS ORDER DATED 21.05.2013. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE R EVISION ORDER PASSED BY CIT U/S 263 OF THE ACT REVISING THE ASSESSMENT ORDER. FOR THIS ASSESSEE HAS RAISED FOLLOWING FOUR EFFECTIVE GROUNDS: 1. FOR THAT THE ORDER OF THE LD. CIT IS ARBITRARY ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CIT ERRED IN EXERCISING THE REVISIONARY JURISDICTION U/S. 263 WITHOUT RECORDING OF FINDING THAT THE ORDER PASSED BY THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE PARTICULARLY WHEN IN THE REPLY TO THE SHOW CAUSE NOTICE THE ISSUE WAS EXPLAINED AND THEREAFTER THE CIT ONLY DIRECTED TO EXAMINE THE CASE A FRESH WITHOUT ANY FINDING WITH REGARD TO THE APPLICABILITY OF SECTION 263. 3. FOR THAT THE LD. CIT ERRED IN ISSUING THE SHOW CAUSE NOTICE U/S. 263 ON THE ISSUE OF THE DIFFERENCE BETWEEN THE PROCESSING CHARGES RECEIVED AS PER THE TDS CERTIFICATE AND THAT DISCLOSED IN THE ACCOUNTS WAS DULY EXPLAINED TO THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS W ITH DOCUMENTARY EVIDENCES OF THE PAYMENT OF EXCISE DUTY ON WHICH TDS WAS ALSO DEDUCTED AND ON THAT ISSUE THERE WAS DUE APPLICATION OF MIND BY THE AO. 4. FOR THAT THE LD. CIT ERRED IN SETTING ASIDE THE ENTIRE ASSESSMENT WHEN THE ISSUE WAS ONLY THE RECONCILIATION OF CONTRACTUAL RECEIPTS CREDITED TO THE PROFIT AND LOSS ACCOUNT AND THAT DISCLOSED IN THE TDS CERTIFICATE. 2 ITA NO. 2241 /K/201 4 M/S. NABISCO CONFECTIONERY & FOOD(S) P. LTD. AY 200 7 - 0 8 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF BISCUITS. FOR THE RELEVANT AY 2007 - 0 8 ASSESSEE FILED RETURN OF INCOME ON 01.11.2007. ORIGINAL ASSESSMENT WAS FRAMED BY AO U/S. 144 OF THE ACT ON 30.12.2009 WHICH WAS SET ASIDE BY THE ITAT TO THE FILE OF THE AO VIDE ORDER DATED 25.06.2012 PASSED IN ITA NO. 749/KOL/2012. SUBSEQUENTLY ASSES SMENT WAS COMPLETED BY ITO WARD - 12(4) KOLKATA U/S. 254 READ WITH SECTION 143(3) OF THE ACT VIDE DATED 21.05.2013. THEREAFTER THE ASSESSEE RECEIVED SHOW CAUSE NOTICE VIDE NO. CIT - IV/KOL REVISION/2014 - 15/263/3059 DATED 02.09.2014 REQUIRING THE ASSESSEE TO EXPLAIN THE DIFFERENTIAL EXCISE DUTY REIMBURSED AMOUNTING TO RS.53.65 LACS. THE RELEVANT PARAS OF THE SHOW CAUSE NOTICE READS AS UNDER: ON PERUSAL OF RECORDS IT IS FOUND THAT THE ASSESSEE COMPAN Y IS THE MANUFACTURING OF BISCUITS AND DOES JOB WORK MAINLY FOR M/S. PARLE BISCUIT (P) LTD AND SHOWS ITS RECEIPT AS PROCESSING CHARGES . AS PER TDS CERTIFICATE IT APPEARS THAT ASSESSEE COMPANY HAD RE C EIVED TOTAL PROCESSING CHARGES AMOUNTING TO RS.2 55 14 615/ - BUT THE AMOUNT CREDITED IN THE PROFIT AND LOSS ACCOUNT IS RS. 1 86 24 248/ - AS PROCESSING CHARGES AND R S .1 62 798/ - AS OFFICE EXPENSES FROM PARLE . DURING THE COURS E OF TH E ASSESSMENT THE ASSESSEE HAD SUBMITTED A WRITTEN SUBMISSION ALONG WITH A CONFIRMATION L E TTER FROM PARLE IN WHICH PARLE CERTIFIE D THAT TH E PAYMENT MADE TOWARDS PROCESSING C H A RGES TO M / S . NABISCO CONFE C TIONER Y & FOOD INDIA (P) LTD INCLUDED 'PAYMENT MADE ON ACCOUNT OF REIMBURSEMENT OF EXCISE DUTY AND OTHER LEVIES IMPOSED FROM TIME TO TIME AND TDS WAS ALSO DEDUCTED ON THESE R E IMBURSEMENT OF EXCISE DUTIES AND THESE WERE REFLECTED IN THE TDS CE RTIFICATE ISSUED FOR THE A.Y - 2007 - 08 .' HENCE OUT OF THE TOTAL AMOUNT CREDITED/PAID BY THE PARL E OF RS . 2 55 14 615/ - . EXCISE DUTY REIMBURSED AMOUNTED TO RS . 53 65 000 / - . THE A.O. ACCEPTED T HE VERSION OF THE ASSESSEE IN SPITE OF THE FACT THAT NO EVIDENCE OF THIS EXCISE DUTY PAYMENT WAS SUBMITTED BY THE ASSESSEE. THE ASSESSEE SUBMITTED ONLY A DECLARATION FROM PARLE REGARDING THAT EXCISE DUTY PAYMENT. SO IT IS APPARENT FROM RECORD THAT THE AS SESSEE DID NOT HAVE ANY EVIDENCE TO PROVE THAT THE PAYMENT OF EXCISE DUTY WAS ACTUALLY DONE. THE ASSESSEE REPLIED THE SHOW CAUSE NOTICE VIDE LETTER DATED 08.10.2014 IN WHICH HE HAS FILED EVIDENCE REGARDING PAYMENT OF EXCISE DUTY AND THE RELEVANT DETAILS FILED BY THE ASSESSEE READS AS UNDER: REGARDING THE EVIDENCES OF PAYMENT OF EXCISE DUTY WE ENCLOSE THE FOLLOWINGS: A. COPY OF PAYMENT ADVICE FROM PARLE BISCUITS PVT. LTD. B. COPY OF TR 6 EXCISE DUTY PAYMENT CHALLANS C. COPY OF CONCERNED TDS CERTIFICATES. THE ABOVE DOCUMENTS WOULD AMPLY REVEAL THAT PAYMENT OF EXCISE DUTY WAS ACTUALLY DONE BY PARLE FOR AND ON BEHALF OF THE ASSESSEE COMPANY. 3 ITA NO. 2241 /K/201 4 M/S. NABISCO CONFECTIONERY & FOOD(S) P. LTD. AY 200 7 - 0 8 CIT WAS NOT CONVINCED WITH THE REPLY AND HE DIRECTED THE AO BY OBSERVING AS UNDER: FROM THE ACCOUNTS OF THE ASSESSEE I T APPEARS THAT EXCISE DUTY PAID HAVE BEEN DEBITED IN THE BOOKS BUT THE EXCISE DUTY RECEIPT HAS NOT BEEN CREDITED. IN ANY OTHER CASE IF NO EXCISE DUTY HAS BEEN PAID ON INPUT THE CREDIT OF INPUT EXCISE DUTY WILL BE ALLOWED AGAINST THE EXCISE DUTY CHARGED ON OUTPUT. THE ARGUMENT OF THE REPRESENTATIVE THAT THE EXCISE DUTY DOES NOT FORMED PART OF THE COST AND TURNOVER AND IS NOT TO BE INCLUDED IN THE CREDIT OF THE PROFIT & LOSS ACCOUNT IS REJECTED. THE ISSUE SHOULD HAVE BEEN PROPERLY EXAMINED BY THE ASSESSING OFFICER. IN VIEW OF THIS THE CIT DIRECTED THE AO TO EXAMINE THE CREDIT AMOUNT OF EXCISE DUTY RECEIVED IN THE P&L ACCOUNT AND ULTIMATELY TO THE NET PROFIT. AGGRIEVED ASSESSEE CAME IN APPEAL BEFORE US. 4. BEFORE US LD. COUNSEL FOR THE ASSESSEE SHRI S. M. SURANA ADVOCATE STATED THAT THE ENTIRE DETAIL REGARDING REIMBURSEMENT OF EXCISE DUTY AMOUNTING TO RS.53.65 LACS WAS FILED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 15.03. 2013 WHICH IS ENCLOSED IN ASSESSEE S PAPER BOOK AT PAGE 73. THE RELEVANT RECONCILIATION IS REPRODUCED FROM THE LETTER WHICH READS AS UNDER: A RECONCILIATION STATEMENT IS AS UNDER: GROSS AMOUNT AS PER TDS CERTIFICATE: RS.2 55 14 615.00 LESS: EXCISE DUTY REIMBURSED: RS. 53 65 000.00 LESS: EXPENDITURE REIMBURSED: RS. 3 79 937.00 LESS: AMOUNT INCLUDED IN INCOME OF FY 07 - 08 RS. 9 82 631.00 GROSS INCOME AS PER P & L A/C RS.1 87 87 047.00 (RS.1 86 24 248.68 + RS.1 62 798.00) THE PA RLE BISCUIT PVT. LTD. HAS ALSO CONFIRMED THE REIMBURSEMENT OF EXCISE DUTY BY THE ASSESSEE COMPANY THE COPY OF CONFIRMATION LETTER IS ENCLOSED IN ASSESSEE S PAPER BOOK PAGE 77. LD. COUNSEL FURTHER CONTENDED THAT NEITHER THE EXCISE DUTY WAS DEBITED IN THE ASSESSEE S ACCOUNT NOR CREDITED. ACCORDING TO HIM THE CIT WHILE PASSING REVISION ORDER WAS UNDER MISCONCEPTION. ON THE OTHER HAND LD. CIT DR SHRI RAVI JAIN ONLY RELIED ON THE ORDER OF REVISION PASSED U/S. 263 OF THE ACT BY CIT. 5. WE FIND THAT THE ASS ESSEE HAS FILED THE DETAILS OF EXCISE DUTY PAYMENT AT PAGES 24 TO 42 IN ITS PAPER BOOK WHEREBY THE CHALLAN IN FORM TR - 6 ARE ENCLOSED WHICH PROVES THAT THE EXCISE DUTY IS PAID WITHIN THE DUE DATES. ONCE THE PAYMENT MADE TOWARDS 4 ITA NO. 2241 /K/201 4 M/S. NABISCO CONFECTIONERY & FOOD(S) P. LTD. AY 200 7 - 0 8 PROCESSING CHARGES TO THE A SSESSEE BY PARLE BISCUITS PVT. LTD. INCLUDED PAYMENT MADE ON ACCOUNT OF REIMBURSEMENT OF EXCISE DUTY AND OTHER LEVIES IMPOSED FROM TIME TO TIME IN RESPECT OF BISCUIT MANUFACTURED BY THE ASSESSEE NOTHING REMAINS THE ISSUE. THE ASSESSEE HAS NEITHER DEBITED N OR CREDIT IN THE ACCOUNTS. UNDER THESE CIRCUMSTANCES LD. COUNSEL FOR THE ASSESSEE STATED THAT NO REVISION PROCEEDINGS CAN BE DONE AND REVISION ORDER PASSED BY CIT U/S. 263 OF THE ACT REVISING THE ASSESSMENT FRAMED BY AO IS INVALID AND IS TO BE QUASHED. WE FIND THAT ENTIRE DETAILS REGARDING REIMBURSEMENT OF EXCISE DUTY AMOUNTING TO RS.53.65 LACS WAS FILED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 15.03.2013 WHICH IS ENCLOSED IN ASSESSEE S PAPER BOOK AT PAGE 73. THE RE LEVANT RECONCILIATION IS REPRODUCED FROM THE LETTER WHICH READS AS UNDER: A RECONCILIATION STATEMENT IS AS UNDER: GROSS AMOUNT AS PER TDS CERTIFICATE: RS.2 55 14 615.00 LESS: EXCISE DUTY REIMBURSED: RS. 53 65 000.00 LESS: EXPENDITURE REIMBURSED: RS. 3 79 937.00 LESS: AMOUNT INCLUDED IN INCOME OF FY 07 - 08 RS. 9 82 631.00 GROSS INCOME AS PER P & L A/C RS.1 87 87 047.00 (RS.1 86 24 248.68 + RS.1 62 798.00) EVEN THE OTHER PARTY PARLE BISCUIT PVT. LTD. HAS ALSO CONFIRMED T HE REIMBURSEMENT OF EXCISE DUTY BY THE ASSESSEE COMPANY THE COPY OF CONFIRMATION LETTER IS ENCLOSED IN ASSESSEE S PAPER BOOK PAGE 77. MOREOVER ASSESSEE NEVER CLAIMED THIS AS AN EXPENDITURE WHICH IS EVIDENT FROM RECORDS. IN SUCH FACTS OF THE CASE THIS REV ISION WILL NOT STAND ON MERITS OF THE CASE. ACCORDINGLY THIS APPEAL OF THE ASSESSEE IS ALLOWED. 10. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED . 11 . ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.04.2015 . SD/ - SD/ - (B. P. JAIN) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 29TH APRIL 201 5 JD.(SR.P.S.) 5 ITA NO. 2241 /K/201 4 M/S. NABISCO CONFECTIONERY & FOOD(S) P. LTD. AY 200 7 - 0 8 COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT M/S. NABISCO CONFECTIONERY & FOOD(S) PVT. LTD. JANAKI NATH BOSE ROAD PASCHIMPARA BARUIPUR SOUTH GARIA KOLKATA PIN - 743613 . 2 RESPONDENT ITO WARD - 12(4) KOLKATA. 3 . THE CIT (A) KOLKATA 4. 5. CIT KOLKATA DR KOLKATA BENCHES KOLKATA / TRUE COPY BY ORDER ASSTT. REGISTRAR .