SENCO GOLD LTD as successor to SENCO GOLD IMPEX PVT. LTD., Kolkata v. DCIT, Circle - 11(2), Kolkata , Kolkata

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH KOLKATA BEFORE SHRI J. SUDHAKAR REDDY AM & SHRI S. S. GODARA JM ./I.T.A NOS.838/KOL/2018 ( [ [ / ASSESSMENT YEAR: 2010-11) SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. C/O SENCO GOLD LTD. DIAMOND PRESTIGE 41A A.J.C. BOSE ROAD 10 TH FLOOR UNIT NO.1001 KOLKATA 700017. VS. CIT-4 KOLKATA. ./ ./PAN/GIR NO.: AAKCS2962C (APPELLANT) .. (RESPONDENT) ./I.T.A NO. 839/KOL/2018 ( [ [ / ASSESSMENT YEAR: 2010-11) SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. C/O SENCO GOLD LTD. DIAMOND PRESTIGE 41A A.J.C. BOSE ROAD 10 TH FLOOR UNIT NO.1001 KOLKATA 700017. VS. DCIT CIRCLE-11(2) KOLKATA. ./ ./PAN/GIR NO.: AAKCS2962C (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MIRAJ D. SHAH AR RESPONDENT BY : SMT. RANU BISWAS ADDL. CIT / DATE OF HEARING : 18/09/2019 /DATE OF PRONOUNCEMENT : 27/11/2019 / O R D E R PER SHRI S. S. GODARA: THESE TWO ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 ARISES FROM THE COMMISSIONER OF INCOME TAX-4 KOLKATA AND COMMISSIONER OF INCOME TAX(APPEALS)-4 KOLKATAS ORDERS DATED 27.08.18 AND 22.02.18 INVOLVING PROCEEDINGS U/S 263/143(3) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT RESPECTIVELY. I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 2 HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. IT EMERGES AT THE OUTSET THAT THE ASSESSEES FORMER APPEAL ITA NO.838/KOL/18 SUFFERS FROM 1250 DAYS DELAY IN FILING. ITS CONDONATION PETITION/AFFIDAVIT DATED 17.07.19 SUBMITS THE RELEVANT CHART OF DATES EVENTS. IT PLEADS THAT HIS CHARTERED ACCOUNTANT IN CHARGE HAD ADVISED TO PARTICIPATE IN ASSESSMENT PROCEEDINGS AND NOT TO TAKE RECOURSE TO APPELLATE FORUM CHALLENGING THE CITS ORDER BEFORE THE TRIBUNAL. THE ASSESSEES SOLEMN AVERMENTS READ THAT IN THE MEANTIME ALTHOUGH IT HAD PARTICIPATED IN THE CONSEQUENTIAL ASSESSMENT THE DEPARTMENT CARRIED OUT SEARCH IN ITS CASE ON 20.02.16 WHICH FINALLY CULMINATED IN APPOINTMENT OF A NEW TAX ADVISOR WHO ADVISED TO CHALLENGE THE CORRECTNESS OF THE CITS ACTION ASSUMING SECTION 263 JURISDICTION AS WELL. THE ASSESSEES CASE IS THEREFORE IS THAT THE IMPUGNED DELAY OF 1250 DAYS MAY BE CONDONED IN THE INTEREST OF JUSTICE AND ON ACCOUNT OF CIRCUMSTANCES BEYOND ITS CONTROL DUE TO IMPROPER LEGAL ADVICE. 3. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE ASSESSEES INSTANT FORMER APPEAL ITA NO.838/KOL/2018; SUFFERING FROM 1250 DAYS DELAY IN FILING IS HOPELESSLY TIME BARRED AND DESERVES TO BE DECLINED ON THIS COUNT ALONE. HE VEHEMENTLY CONTENDS THAT THE ASSESSEE HAS ALWAYS BEEN ASSESSED BY A BATTERY OF LEGAL ADVISOR(S) AND THEREFORE IGNORANCE OF LAW IS NOT A VALID EXCUSE TO CONDONE THE IMPUGNED DELAY. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS QUA THE ISSUE IN QUESTION OF CONDONATION OF DELAY. HON'BLE APEX COURT'S LANDMARK DECISION COLLECTOR LAND ACQUISITION VS. MST. KATIJI (1987) 167 ITR 471 (SC) SETTLED THE LAW LONG BACK THAT THE CAUSE OF SUBSTANTIAL JUSTICE MUST PREVAIL OUR ALL TECHNICAL ASPECTS. AND ALSO THAT A LITIGANT DOES NOT STAND TO BENEFIT BY DELIBERATELY RESORTING TO DELAY AS THE SAME RUNS A SERIOUS RISK OF LITIGATION GETTING REJECTED ON THIS COUNT ALONE. THEIR LORDSHIPS LATTER DECISION IN N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123 ALSO PROCEEDED IN THE VERY DIRECTION THAT THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES ON MERITS IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. CONCORD OF INDIA INSURANCE CO. LTD. I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 3 VS. SMT. NIRMALA DEVI & ORS. 118 ITR 507(SC) AND [1987] (SUPPL) 399 ALSO HELD THAT A COURT OUGHT NOT ADOPT A MECHANICAL APPROACH REFUSING TO CONDONE DELAY IN QUESTION. WE TAKE INTO ACCOUNT THE ASSESSEES CONDONATION PETITION AVERMENTS AND THE FOREGOING JUDICIAL PRECEDENTS TO OBSERVE THAT THE IMPUGNED DELAY OF 1250 DAYS NEITHER APPEARS TO BE INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF WRONG ADVICE OF ITS CHARTERED ACCOUNTANT. WE HOLD IN THESE FACTS THAT THE SAME IS LIABLE TO BE CONDONED GOING BY THE FOREGOING LEGAL PROPOSITIONS THAT THE CAUSE OF SUBSTANTIAL JUSTICE MUST PREVAIL OVER ALL OTHER TECHNICALITIES. THE ASSESSEES FORMER APPEAL ITA NO.838/KOL/2018 IS TAKEN UP FOR ADJUDICATION ON MERITS. 5. A COMBINED PERUSAL OF BOTH THESE ASSESSEES APPEALS MAKES IT CLEAR THAT THE FORMER CASE ITA NO.838/KOL/2018 CHALLENGES THE CITS ACTION ASSUMING SECTION 263 REVISIONAL JURISDICTION QUA THE ORIGINAL REGULAR ASSESSMENT FRAMED ON 04.07.12. ITS LATTER APPEAL ITA NO.839/KOL/2018 SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION DISALLOWING ITS SECTION 10AA DEDUCTION CLAIM OF RS.2 83 69 865/- MADE IN CONSEQUENTIAL ASSESSMENT AS UPHELD BY THE CIT(A)S ORDER UNDER CHALLENGE. WE THEREFORE PROCEED TO DEAL WITH BOTH THESE CASES SIMULTANEOUSLY FOR THE SAKE OF CONVENIENCE AND BREVITY. 6. WE NOW ADVERT TO THE BASIC RELEVANT FACTS. THIS ASSESSEE IS A COMPANY ENGAGED IN JEWELLERY AND GEMS MANUFACTURING/TRADING BUSINESS. IT FILES ITS RETURN ON 18.08.10 DECLARING TOTAL INCOME OF RS.25 12 960/- AFTER CLAIMING SECTION 10AA DEDUCTION IN ISSUE OF RS.2 83 69 865/- IN RESPECT OF ITS NEWLY ESTABLISHED UNITS IN SPECIAL ECONOMIC ZONE(S). THE ASSESSING OFFICER COMPLETED HIS REGULAR ASSESSMENT ON 04.07.12 ACCEPTING THE SAME AS PER NORMAL PROVISION FOLLOWED BY SECTION 115JB BOOK PROFIT COMPUTATION OF RS.9067356/-. 7. THE CIT THEREAFTER HAS ASSUMED SECTION 263 REVISION JURISDICTION IN THE SAID ROUND OF FORMER ASSESSMENT AS UNDER: I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 4 I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 5 I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 6 I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 7 7.1 THE ASSESSEES FORMER APPEAL ITA NO.838/KOL/18 ARISES AGAINST THE CITS ABOVE-EXTRACTED ORDER UNDER CHALLENGE. 8. NEXT COMES THE ASSESSEES LATTER APPEAL ITA NO.839/KOL/2018. THE ASSESSING OFFICER FRAMED HIS CONSEQUENTIAL ASSESSMENT DATED 27.11.15 AS PER THE I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 8 CITS REVISION DIRECTIONS TO DISALLOW THE ASSESSEES SECTION 10AA DEDUCTION CLAIM OF RS.2 83 69 865/-. IT FURTHER EMERGES THAT THE CIT(A) HAS NOT EVEN ADJUDICATED ASSESSEES CORRESPONDING SUBSTANTIVE GRIEVANCES BY OBSERVING IN PARA 3.1 OF HIS LOWER APPELLATE ORDER UNDER CHALLENGE THAT THE CITS REVISION DIRECTIONS HAVE MADE IT CLEAR THAT THE ASSESSEES IMPUGNED SECTION 10AA DEDUCTION CLAIM HAS TO BE DISALLOWED. HE CONCLUDES IN OTHER WORDS THAT THE LOWER APPELLATE JURISDICTION VESTED IN HIM WOULD TANTAMOUNT TO MY SITTING ON A JUDGMENT OF A SENIOR OFFICER WITHOUT AUTHORITY. 8.1 IT IS IN THIS BACKDROP OF FACTS THAT THE ASSESSEE HAS FILED ITS TWIN APPEALS. 9. LEARNED COUNSEL VEHEMENTLY SUBMITTED DURING THE COURSE OF HEARING THAT THE CIT HAS ERRED IN LAW AND ON FACTS IN ASSUMING HIS REVISIONAL JURISDICTION VESTED U/S 263 OF THE ACT. HE INVITED OUR ATTENTION TO THE ASSESSEES DETAILED REPLY DATED 12.06.14 FORMING PART OF CASE RECORD. HE REFERRED TO ANNEXURE A-3 INTER ALIA THAT ASSESSEE HAD DULY OBTAINED ITS PRESCRIBED FORM NO.56F DULY SERVED BY A CHARTERED ACCOUNTANT WHICH WAS PRODUCED BEFORE THE ASSESSING OFFICER FOR VERIFICATION. THE ASSESSEES NEXT CASE WAS THAT IT HAD INCLUDED MAKING CHARGES OF GOLD ORNAMENTS FREIGHT & INSURANCE VALUE DIFFERENCE ON SALE VALUE DIFFERENCE ON PURCHASES AND INCOME ON FIXING DIFFERENCE ON GTC; AGGREGATING TO RS.78 08 079/- AS INCLUDIBLE IN THE PROFITS DERIVED FROM THE NEWLY ESTABLISHED UNITS SINCE DIRECTLY RELATED TO MANUFACTURING BUSINESS ONLY 10. LEARNED COUNSEL CONTINUED HIS CHALLENGE OF CORRECTNESS OF CITS ACTION INVOKING HIS REVISION JURISDICTION. HE TOOK US TO THE ASSESSEES DETAILED REPLY THAT THE FIGURE NOTED IN THE CIT REVISION NOTICE REGARDING SALE OF 24 CARAT GOLD BAR OF RS.45 21 3068/- WAS IN FACT 57403601/- AS PER SCHEDULE 10 OF THE AUDITED FINANCIALS. AND THAT MIXING OF ALLOY FOR THE PURPOSE OF CONVERSION OF RAW GOLD 24 CARAT TO GOLD ORNAMENTS (22CT)/(21CT)/(18CT) IS A STANDARD PRACTICE IN THE PROCESS OF JEWELLERY MAKING. OUR ATTENTION WAS ALSO INVITED TO THE ASSESSEES DETAILED AVERMENTS REGARDING ITS HIGHER PROFIT MARGINS IN SEZ DIVISION THAN THE HEAD-OFFICE. LEARNED COUNSEL STATED AS PER THE ASSESSEES AVERMENTS IN PARA 7 THAT THE BUSINESS LOSS OF RS.68 01 759/-; WHICH HAD BEEN SET OFF AGAINST PROFITS OF HEAD- I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 9 OFFICE HAD BEEN BROUGHT FORWARD FROM ASSESSMENT YEAR 2008-09 ONWARDS. HIS CASE ACCORDINGLY IS THAT THE CITS ORDER UNDER CHALLENGE HAS NOWHERE TAKEN INTO CONSIDERATION ALL THESE FACTUAL AVERMENTS WHILST DIRECTING THE ASSESSING OFFICER TO FRAME A FRESH ASSESSMENT. CASE LAW MALABAR INDUSTRIAL CO. LTD. V. CIT : 243 ITR 83 IS ALSO QUOTED THAT EACH AND EVERY ASSESSMENT COULD NOT BE MADE SUBJECT MATTER TO REVISIONAL JURISDICTION BUT THE CIT HAS TO BE SIMULTANEOUSLY SATISFIED HIMSELF THAT THE SAME IS NOT ONLY ERRONEOUS BUT ALSO CAUSING PREJUDICE TO INTEREST OF REVENUE. IT IS ACCORDINGLY PRAYED THAT THE CITS REVISION JURISDICTION ORDER DATED 27.08.14 MAY BE REVERSED AND AS A NECESSARY COROLLARY THE ASSESSEES LATTER APPEAL ITA NO.839/KOL/2018 BE ALSO ACCEPTED. 11. LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTS THE CITS ACTION INVOKING SECTION 263 REVISIONAL JURISDICTION ON THE GROUND THAT SINCE THE ASSESSING OFFICER HAD ACCEPTED THE ASSESSEES SECTION 10AA DEDUCTION CLAIM OF RS.2 83 69 865/- WITHOUT MAKING NECESSARY AND PROPER INQUIRIES THE SAME HAS BEEN RIGHTLY REVISED IN THE ORDER UNDER CHALLENGE. AND ALSO THAT THE ASSESSING OFFICERS CONSEQUENTIAL ASSESSMENT HAS BEEN FRAMED AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING WHEREIN IT HAS FAILED TO SUBSTANTIATE THE IMPUGNED DEDUCTION CLAIM. MS. BISWAS QUOTED HONBLE APEX COURTS DECISION IN MALABAR INDUSTRIAL CO. LTD. V. CIT : 243 ITR 83 (1968) 67 ITR 84(SC) RAMPYARI DEVI SARAOGI VS. CIT (1968) 67 ITR 84(SC) & GEE VEE. ENTERPRISE VS. ACIT (1975) 99 ITR 279 (DEL) HOLDING THAT CIT HAS RIGHTLY DIRECTED THE ASSESSING OFFICER TO FRAME A FRESH ASSESSMENT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 12. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD DECLARED ITS TOTAL INCOME OF RS.25 12 960/- AFTER CLAIMING 10AA DEDUCTION OF RS. 2 83 69 865/- WHICH STOOD ACCEPTED IN THE REGULAR ASSESSMENT FRAMED ON 04.07.12 FOLLOWED BY BOOK PROFIT COMPUTATION OF RS.90 67 356/- U/S 115JB OF THE ACT. THERE IS ALSO NO QUARREL ABOUT THE SETTLED LEGAL PROPOSITION AS PER THE CASE LAW MALABAR INDUSTRIAL CO. LTD. RAM PYARI DEVI SARAOGI &GEE VEE. ENTERPRISE VS. ACIT(SUPRA) THAT AN ASSESSMENT HAS TO BE BOTH ERRONEOUS AS WELL PREJUDICIAL TO INTEREST OF REVENUE BEFORE THE SAME IS SOUGHT TO BE REVISED U/S 263 OF THE ACT. THEIR LORDSHIPS MAKE IT FURTHER CLEAR THAT WHERE AN I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 10 ASSESSING OFFICER ADOPTS ONE OF THE PLAUSIBLE VIEW THE ASSESSMENT CANNOT BE TERMED AS EITHER ERRONEOUS OR CAUSING PREJUDICE TO INTEREST OF THE REVENUE. THERE CAN HARDLY BE ANY QUARREL THAT THE SAME LANDMARK PROPOSITION HOLDS THE FIELD TILL DATE. HONBLE DELHI HIGH COURTS DECISION IN GEE VEE. ENTERPRISE (SUPRA) THAT THE DUTY OF ASSESSING OFFICER IS TO CARRY OUT A THOROUGH INVESTIGATION DURING THE COURSE OF ASSESSMENT. WE KEEP IN MIND ALL THESE LEGAL PRINCIPLES TO REVERT TO THE RELEVANT FACTS OF THE INSTANT CASE. THE CIT HAS EXERCISED HIS REVISIONAL JURISDICTION IN THE ABOVE EXTRACTED PORTION OF THE ORDER UNDER CHALLENGE MAINLY ON THE GROUND THAT THE ASSESSING OFFICER HAD FAILED TO EXAMINE AND TAKE NOTE OF THE CRUCIAL FACTS THAT THE ASSESSEES SECTION 10AA DEDUCTION CLAIM HAD NEITHER BEEN RAISED NOR COMPUTED PROPERLY IN VIEW OF THE VARIOUS ISSUES IN THE REVISION NOTICE (SUPRA). WE MAKE IT CLEAR THAT THE ASSESSEE HAS NOT PLACED ON RECORD ANY SHOW-CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 143(2) OR FOR THAT U/S 142(1) ISSUED DURING THE COURSE OF SCRUTINY ASKING FOR ALL THE NECESSARY DETAILS. THAT BEING THE CASE ONE THING IS VERY MUCH CLEAR THAT THE ASSESSING OFFICER FAILED TO MAKE HIS DUE INQUIRES BEFORE ACCEPTING ASSESSEES SECTION 10AA DEDUCTION CLAIM IN HIS ASSESSMENT DATED 04.07.12 FORMING SUBJECT MATTER OF REVISION. WE THEREFORE DECLINE THE ASSESSEES ARGUMENTS CHALLENGING CORRECTNESS OF CITS EXERCISES OF REVISIONAL JURISDICTION IN PRINCIPLE ALONE. THE FACT ALSO REMAINS THAT ALTHOUGH THE ASSESSEE HAD FILED ITS DETAILED REPLY TO THE CITS REVISION SHOW-CAUSE NOTICE ON 12.06.14 EXPLAINING ALL FACETS OF ITS DEDUCTION CLAIM THE SAME HAS NOWHERE BEEN CONSIDERED IN THE CITS REVISION ORDER. WE THUS SEE NO REASONS TO ACCEPT EITHER PARTIES ARGUMENTS IN ENTIRETY ON THE FORMER ISSUE OF CORRECTNESS OF REVISIONAL JURISDICTION EXERCISED BY THE CIT. WE THEREFORE AFFIRM THE CITS ACTION REVISING THE IMPUGNED ASSESSMENT ONLY IN PRINCIPLE BUT DEEM IT PROPER TO LEAVE IT OPEN FOR THE ASSESSING OFFICER TO EXAMINE THE ISSUES RAISED IN THE CITS REVISION PROCEEDINGS AFRESH WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER FOR CONSEQUENTIAL PROCEEDINGS ON OR BEFORE 30 TH APRIL 2020. ITS FORMER APPEAL ITA NO.838/KOL/2018 IS PARTLY ACCEPTED FOR STATISTICAL PURPOSES IN ABOVE TERMS. I.T.A NOS.838 & 839/KOL/2018 SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. PAGE | 11 13. COMING TO THE ASSESSEES LATTER APPEAL ITA NO.839/KOL/2018 WE ARE OF THE VIEW THAT THE SAME ALSO DESERVES TO FOLLOW SUIT SINCE WE HAVE ALREADY RESTORED THE FORMER LIS BACK TO THE ASSESSING OFFICER. THIS APPEAL IS TREATED AS ACCEPTED FOR STATISTICAL PURPOSES . 14. THE ASSESSEES FORMER APPEAL ITA NO.838/KOL/2018 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND LATTER APPEAL ITA NO.839/KOL/2018 IS ALLOWED FOR STATISTICAL PURPOSES. ORDERED ACCORDINGLY. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27.11.2019. SD/- ( J. SUDHAKAR REDDY ) SD/- (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER /KOLKATA; / DATE:27/11/2019 (RS SR.PS) / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR I.T.A.T KOLKATA BENCHES KOLKATA . 1. THE APPELLANT - SENCO GOLD LTD. AS SUCCESSOR TO SENCO GOLD IMPEX PVT. LTD. 2. THE RESPONDENT- (I) CIT-4 KOLKATA & (II) DCIT CIRCLE-11(2) KOLKATA. 3. ( ) / THE CIT(A) KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. / DR ITAT KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.