TMI Blog2020 (9) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of interest in question was taken as crystallized by him in the year under consideration, the ld. CIT(Appeals) failed to take note of a very relevant and material fact that the interest charged by Customs and Central Excise Settlement Commission was reduced by the Hon'ble Delhi High Court and the liability of the assessee on account of the said interest after adjusting the amount \already paid by the assessee was reduced. This clearly shows the non-application of his mind by the ld. CIT(Appeals) to the relevant and material facts having a direct bearing on the quantum of liability of the assessee on account of interest in question - remit the matter back to him for deciding the same afresh by passing a well discussed and well reasoned order after giving the assessee a proper and sufficient opportunity of being heard. - Appeal filed by the Revenue is treated as allowed for statistical purposes. - I.T.A. No. 162/KOL/2020 - - - Dated:- 19-8-2020 - Shri P.M. Jagtap, Vice-President And Shri Satbeer Singh Godara, Judicial Member For the Appellant : Shri Ram Bilash Meena, CIT, D.R. For the Respondent : Shri Ashok Tulsyan, A.R., ORDER P.M. JAGTAP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer for A.Y. 2013-14 by issuing notice under section 143(2) on 04.09.2014, which were pending on the date of search, got abated and merged with the proceedings under section 153A initiated for A.Y. 2013-14 in pursuant to the search. In response to the notice issued under section 153A of the Act, the return for A.Y. 2013-14 was filed by the assessee on 28.09.2016 declaring a loss of ₹ 17,70,26,837/- after claiming the deduction of ₹ 12,93,62,086/- on account of interest on excise duty pertaining to earlier years as per the direction given by the Tribunal in the appellate order dated 10.06.2015 for A.Y. 2009-10. In the assessment completed under section 153A/143(3) of the Act vide an order dated 31.12.2017, the income declared by the assessee in the return was wrongly taken by the Assessing Officer as ₹ 5,77,80,260/- and after making additions/disallowances of ₹ 1,42,899/-, the total income of the assessee was determined by him at ₹ 5,78,92,590/-. He thus did not consider the claim of the assessee for deduction of ₹ 12,93,62,086/- on account of interest paid on central excise pertaining to earlier years. The assessee, therefore, moved a pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest was finally determined by the Hon'ble Delhi High Court vide order dated 13.04.2012 (in AY 2013-14) the same may be allowed in the year of the pronouncement of the order given by Hon'ble Delhi High Court as adjudicated by the Hon'ble ITAT Kolkata subject to verification of the facts. Further, the department had filed an appeal before Hon'ble Calcutta High Court for the A. Y.-2009-10 against the order of ITAT, Kolkata in I.T.A. No. 1096/KOL/2014 dt. 10.06.2015 in respect of disallowance of Excise duty and interest thereon, which is yet to be disposed off. The said issue was not disputed by the assessee as evident from the order of ld. CIT(A) and Hon'ble ITAT passed against this order of AO (copy enclosed). Hence, considering the above facts, the AO was wrong in holding that it is a fresh claim u/s. 153A which is factually wrong and incorrect. The claim was already there prior to search and only due to merger of abated proceedings with the proceedings u/s. 153A, the same cannot be treated as a fresh claim made by the assessee and be disallowed. The said fact has been held by Hon'ble Delhi High Court in the case of CIT vs Kabul Chawla in 380 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 3.9.2 In view of the above facts, we would like to submit that the claim should be allowed to the assessee since the same is a genuine claim made by the assessee in accordance with the direction of the Hon'ble ITAT. Since the claim was not allowed to the assessee in AY 2008-09, the assessee claimed the same is AY 2013-14 in the return filed u/s. 153A. However, the AO did not allow the claim of the assessee. 3.10. In this regard, we would like to submit that the claim made by the assessee is a genuine claim and has to be allowed to the assessee by the AO himself since the same is as per the direction of the order of the Hon'ble ITAT. Therefore, the assessee should not be denied the benefit of deduction/exemption under the Act for which the assessee is eligible legally. On this issue the assessee seeks reliance from the various judicial pronouncements . 4. In support of the above contentions, reliance was pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration without giving any cogent or convincing reason. In support of this contention, he has relied on the provision of sub-section 6 of section 250, whereby it was incumbent upon by the ld. CIT(Appeals) to dispose of the appeal of the assessee by an order in writing stating the points for determination, the decision thereon and the reason for the decision. He has contended that the impugned order passed by the ld. CIT(Appeals) does not satisfy these statutory requirements and urged that the matter may be remitted back to the ld. CIT(Appeals) for disposing of the appeal of the assessee afresh by passing a well discussed and well reasoned order in accordance with the sub-section 6 of section 250. We find some merit in the contention of the ld. CIT(D.R). In our opinion, the ld. CIT(Appeals) would have been right to entertain the claim of the assessee for deduction on account of interest on excise duty pertaining to earlier years in the year under consideration keeping in view the observations made by the Tribunal in its order dated 10.06.2015 (supra) passed in assessee's case for A.Y. 2009-10 and the fact that the assessment proceedings initiated by the Assessing Officer f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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