TMI Blog2015 (1) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Chandrakar, Sr. DR O R D E R PER CHANDRAMOHAN GARG, J.M. These appeals have been filed against the order of the CIT(A)-XXI, New Delhi dated 24.9.07 in Appeal No. 132/2006-07 for AY 2004-05; dated 9.5.2011 in Appeal No. 161/08-09 for AY 2006-07; dated 11.3.2010 in Appeal No. 81/09-10 for AY 2007-08; dated 16.5.2011 n Appeal No. 194/10-11 for AY 2008-09 respectively. 2. Briefly stated the facts giving rise to these appeals are that initially ITA No. 4672/Del/2007 for AY 2004-05 was filed by the assessee and the same was allowed by the Tribunal order dated 24.09.2007. While allowing the assessee s appeal for AY 2004-05, ITAT accepted the plea of the assessee that the issue involved pertains to claim of additional depreciation u/s 32 of the Income Tax Act, 1961 and was claimed on the plea that the item ready mix concrete (RMC) being produced by the assessee amounted to manufacture of article or a thing. Against the said order of the Tribunal dated 24.09.2007, the revenue preferred an appeal before the Hon ble High Court of Delhi viz. ITA 508/2011 in respect of AY 2004-05 and the matter has been restored back to the Tribunal for limited examination to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal and question of law was accordingly answered partly in favour of the revenue and against the respondent assessee by remitting the matter to the Tribunal for fresh decision according to the directions given in para 9 to 11 in ITA NO. 508/2011 (supra) as reproduced hereinabove. 4. It is also relevant to note that the appeal of the revenue for AY 2006-07 on the same issue viz. ITA 3527/D/2011 was dismissed by the Tribunal by following the decision of the Tribunal in ITA No. 4672/D/2007 dated 15.1.2010 for AY 2004-05. Subsequently, the Miscellaneous Application (MA No. 56/D/2012) filed by the revenue was allowed by the Tribunal by order dated 20.7.2012 wherein respectfully taking cognizance of decision of Hon ble High Court of Delhi for AY 2004-05 dated 24.10.2011(supra), the Tribunal recalled its order dated 20.7.2012 for AY 2006-07 (supra) and directed the Registry to fix the case for hearing in due course. 5. It is further relevant to note that in revenue s appeal for AY 2008-09 on the same issue, ITA NO. 3602/D/11 was allowed for statistical purposes remitting back the issue to the file of AO with a direction that the AO shall pass a speaking order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be brought on record for proper adjudication of the issue as per directions of the Hon ble High Court. 8. Ld. DR replied that the assessee got ample opportunity before the AO, during first appellate proceedings before the CIT(A) and before the Tribunal during first round of second appellate proceedings but the assessee did not file any evidence in the form of copies of the audited balance sheet, copies of the party wise sales, details, summary and details of month wise sales, therefore, the same cannot be admitted. Ld. DR placing reliance on the decision of Hon ble High Court of Rajasthan in the case of CIT vs Jaipur Udyog Ltd. (1997) 227 ITR 345 (Raj) submitted that when the Tribunal have decided the question on merit, it was no longer open to it to remit the case to ITO to take fresh evidence and to reconsider the matter, more so, when it was not shown that the assessee was not granted sufficient opportunity to adduce evidence. 9. Ld. AR submitted rejoinder to the above submissions and contentions of the ld. DR and stated that the facts and circumstances of the present case are clearly distinguishable as in that case, ITAT, Jaipur Bench permitted the assessee to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Delhi specially keeping in view the fact that prior to the High Court order, there was neither any occasion nor any opportunity for the assessee to bring the said evidence on record. Ld. AR has also contended that the CIT(A) considered the ratio of the decisions of Hon ble Apex Court in the case of N.C. Buddhiraja (supra) but during the earlier round of proceedings before the AO, CIT(A) and the Tribunal, the assessee was not asked to submit details to elaborate as to whether the RMC manufactured by the assessee was consumed in house or sold to outside third parties. Ld. AR has also submitted that in view of directions of the Hon ble High Court of Delhi dated 24.10.2011 (supra), it is incumbent upon the assessee to prove beyond any doubt that the RMC manufactured by the assessee was sold to outside parties during the relevant period pertaining to the assessment year under consideration. 11. However, ld. DR has objected to the admissibility of additional evidence by referring the decision of Hon ble High Court of Rajasthan in the case of CIT vs Jaipur Udyog Ltd. but the peculiar facts and circumstances of the present case are distinguishable as in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that in case RMC manufactured by the assessee was used for construction activities which were undertaken by the assessee, then the claim for additional depreciation cannot be allowed but in case RMC was sold to third party as a commodity, then the assessee is entitled to additional depreciation u/s 32(1)(iia) of the Act. Ld. AR further submitted that in the light of additional evidence submitted by the assessee for all four assessment years, it is amply clear that the entire RMC manufactured by the assessee was sold to third parties and no part of RMC manufactured by the assessee was used by the assessee in house and the effect of this factum is that the assessee is entitled for additional depreciation u/s 32(1)(iia) of the Act. 13. Ld. DR agreed to the proposition that if the entire RMC manufactured by the assessee is sold to the third parties outside and no part of RMC manufactured by the assessee had been utilized by the assessee in house, then the assessee is entitled to additional depreciation us/ 32(1)(iia) of the Act. However, ld. DR vehemently contended that the AO had no opportunity to examine audited balance sheet of the assessee, ledger account of RMC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all fairness, agreed that if it is found just and proper to restore the issue to the file of AO, then the department has no serious objection. Under the above set of facts and circumstances, we reach to a logical conclusion that the AO should be given an opportunity to verify and examine the additional evidence and to adjudicate the issue in the light of order of Hon ble High Court of Delhi for AY 2004-05 (supra) and 2006-07 (supra) both dated 24.10.2011 taking respectful cognizance of the decision of Hon ble Apex Court in the case of N.C. Buddhiraja (supra). Accordingly, assessee s apepal in ITA NO. 4672/Del/2007 for AY 2004-05, revenue s appeals in ITA NO. 3527/Del/2011 for AY 2006-07, ITA NO. 3082/Del/2010 for AY 2007-08 and ITA No. 3602/Del/2011 for AY 2008-09 are restored to the file of AO for the limited purpose of examination and verification of the following factual issues:- i) Whether RMC manufactured by the assessee during relevant periods was consumed in house or sold to outside third parties? ii) Whether the assessee is entitled for additional depreciation on the machinery/equipment used for the said activities/purpose of manufacturing of the RMC whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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