Ita/614/2013 Of Buhler (India) Pvt Ltd v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 19 DAY OF AUGUST 2014 PRESEHBN THR HON’BLE MR. JUSTICE N. KUMAR AN ] THR HON’ BLE MRS.JUSTICEKE RATHNAKA INCOME TAX APPEAL NO.614 OF 2013C/W INCOME TAX APPEAL NO.616 OF 2013 BBRIWEKEN BUHLER (INDIA) PVT. LTD.(A PRIVATE CO. LTD. BY SHARES,INCORPORATBD UNDER THE |COMPANIES ACT, 19956)HAVING ITS OFFICES ATNO.13D, KIADB INDUSTRIAL AREAATTIBELE, BANGALORE-562 107REP. HERBIN BY ITS MANAGINGDIRECTOR, MR.DIPAK MANE >. COMMON APPBLLANT (BY SRI.NAGESHWAR RAO, ADV.) AND:THR DBPUTY COMMISSIONBR.OF INCOME-TAX,CIRCLE-11(2)BANGALORE — 560 OO1. COMMON RBSPONDENT (BY SRI.K.V.ARAVIND, ADV.) ITA.614/2014 is filed under Section 260A of I.T.Act,|1961 arising out of Order dated 22.22.2013 in ITA No.434/Bang/2012 for the assessment year 2007-08praying to formulate the substantial questions of lawstated therein and set aside the appellate order dated22.2.2013 passed by the ITAT, Bangalore in appealproceedings|No.ITA.434/Bang/2012|andquash|anyproceedings instituted pursuant to the directions issuedthereunder. ITA.616/2013 is filed under Section 260A of I.T.Act,1961arisingOUToT Order.dated2.8 Y2O1L1n M.P.69/Bang/2013 in ITA No.434/Bang/2012 for theassessment year 2007-08 praying to ftormulate thesubstantial questions of law stated therein and set asidethe appellate order dated 2.8.2013 passed by the ITAT ‘C”Bench,Bangalore|1n M.P.69/Bang/2013—1n ITANo.434/Bang/2012 and quash any proceedings institutedpursuant to the directions issued thereunder These appeals coming on for Admission this day,N.KUMAR J., delivered the following: JUDGMENT Both these appeals are preferred by the assessee|against the original order and the order passed against themiscellaneous petition refusing to review the originalorder. MJherefore, they are taken up for considerationtogether and disposed of by this common order. 2. The assessee is a Company engaged in the|manufacture, trading, servicing and maintenance of foodprocessing machines. They have filed the returnsdeclaring the income ofe15,31,55,764/-. The returns was processed under Section 143(1) of the Income Tax Act,1961 (hereinafter referred to as ‘the Act’, for short). Later, |it was taken up for scrutiny. An order came to be passedunder Section 143(3) of the Act determining the income ofthe assessee at!417,24,34,920/- making certain additions. |Agegerieved by the said order, the assessee preferred aappeal. The Appellate Authority passed an order on30.12.2011 partly allowing the appeal and dismissing oncertain other aspects. Against the said order, the assesseepreferred an appeal to the Tribunal. The Tribunaldismissed the appeal by its order dated 22.2.2013—confirming the order passed by the Appellate Authorityand confirming the additions made by the AssessingAuthority. The reason given was that the commissionexpenditure was not an ascertained lability and noevidence has been brought on record for disallowance. —Therefore, the assessee filed a miscellaneous applicationenclosing the copy of the invoice raised to the extent of41,14,00,000/-showingthe.COmm1Ssi10Nfortheassessment year 2008-09 and they also produceddocuments. Without looking into the said documents, the miscellaneous petition also came to be dismissed. That ishow, the assessee is before this Court challenging both theorders. Along with the appeal memos, they have producedinvoice and other documents. The said documents are not|looked into by the Tribunal. They are the documentswhich are produced by the assessee before the AppellateCommissioner. The said documents were part of therecord. Therefore, the findings recorded by the Tribunalthat the assessee has not produced any evidence tosubstantiate his claim, is ex facie illegal. Therefore, theorder cannot be sustained. It is appropriate to remandthe matters back to the Tribunal to enable them to hear|the appeals afresh in the light of the documents which areavailable on record and which will be pointed out by theappellant in the course of arguments. They also shall takeinto account the judgments to be relied on by both theparties and then pass appropriate orders. Hence, we pass_the following: ORDER Both the appeals are allowed. Impugned orders areset aside. The entire matter is remitted back to the. Tribunal for fresh consideration and in accordance with| law, without in any way being influenced by any of the observations made by this Court in this order. RV Sd/-. JUDGE Sd/-| JUDGE