M/S G.e. Motors India (P) Limited v. Petitio

Gurbax SinghIN THE HIGH COURT OF PUNJAB AND HARY AN Ai Acb 479407.-44 |2017.02.17 10:11CHANDIGARH. CWP? No. 1064 of 2017Date of decision: 20.01.2017 M/s G.E. Motors India (P) Limited.| Vs. ..... Petitio The Deputy Commissioner of Income Tax, Circle-I, Faridabad. ...Respondent CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTALHON’ BLE MR. JUSTICE RAMENDRA SINGH Present: Mr. Tushar Jaswal, Advocate, Mr. Ratul Sateeja, Advocate and Mr. A.S. Narang, Advocate for the petitioner. | Ajay Kumar Mittal,J. 1,Prayer in this petition filed under Articles 226/227 of theConstitution of India is for quashing the order dated 03.11.2016, AnnexureP.1 passed by the Income Tax Appellate Tribunal, Delhi Bench “ C” NewDelhi, (in short, “the Tribunal”) in ITA No. 2622/Del/2008 for the|assessment year 2003-04 admitting the additional grounds filed by therespondent-revenue. Direction has also been sought to the Tribunal toexpeditiously dispose of the main appeal filed by the Respondent-revenue. 2 A few facts relevant for the decision of the controversy involvedas narrated in the petition may be noticed. The petitioner is a private limited company, engaged in the business of manufacturing and export of fan andwasher motors. It has two units, one located in the domestic tariff area andthe other is an Export Oriented Undertaking (“EOU”). For the EOU unit, thepetitioner is claiming exemption under Section 10B of the Income Tax Act,1961 (in short, “the Act’). The petitioner’s units are located at Faridabad.The petitioner filed its return of income for the assessment year 2003-04 on31.10.2003 declaring a total income ofY26,44,25,928/-. The case of the|petitioner was picked up for scrutiny by the Assessing Officer. Assessment.order dated 23.03.2006, Annexure P.2 was passed under Section 143(3) ofthe Act assessing the total income of the petitioner at<35,13,77,940/- onaccount of disallowance of deduction under Section 1OB of the Act,|disallowance of advances written off, social welfare, in-land and foreigntravelling expenses etc. The petitioner challenged the additions made by theAssessing Officer by filing an appeal before the Commissioner of IncomeTax (Appeals) [CIT(A)]. Vide order dated 23.05.2008, Annexure P.3, theCIT(A) substantially allowed the appeal holding that the petitioner waseligible for claiming deduction under Section 10B of the Act. Aggrieved bythe order, the respondent-revenue filed an appeal before the Tribunal, againstthe order dated 23.05.2008, Annexure P.3, passed by the CIT(A). The matterremained pending before the Tribunal for quite some time. The petitionereven moved an application dated 10.04.2013 for early disposal of the appeal.On 22.09.2016, the respondent-revenue moved an application to amend theerounds of appeal filed before the Tribunal, even though the same requestwas rejected by the Tribunal on 27.06.2016. Thereafter, the matter was fixedfor hearing on 26.09.2016 wherein a detailed hearing before the Tribunal onthe preliminary issue of admission of additional grounds took place. Thepetitionerinter aliasubmitted that the application for additional grounds ought to be outrightly rejected as no reason had been given by the Revenue to.substantiate as to how it was prevented from filing its application onnumerous occasions provided earlier and when an opportunity had alreadybeen availed. The Tribunal directed both the parties to file writtensubmissions. On 3.11.2016, the Tribunal passed the impugned order allowingthe respondent’s application for additional grounds. Aggrieved by the order, the petitioner has filed the present writ petition, ought to be outrightly rejected as no reason had been given by the Revenue to.substantiate as to how it was prevented from filing its application onnumerous occasions provided earlier and when an opportunity had alreadybeen availed. The Tribunal directed both the parties to file writtensubmissions. On 3.11.2016, the Tribunal passed the impugned order allowingthe respondent’s application for additional grounds. Aggrieved by the order, the petitioner has filed the present writ petition, onWe have heard the learned counsel for the petitioner.4Learned counsel for the petitioner challenges the order dated3.11.2016, Annexure P.1 passed by the Tribunal whereby application filed bythe respondent-revenue seeking admission of four additional grounds hasbeen allowed. Reliance has been placed on the judgments inAravaliEngineers P. Limited Vs. Commissioner of Income Tax and another>[2011] 335 ITR 508 (P&H)Prabhakar Vs. Joint director, SericultureDepartment and another, (2015) 15 SCC.| 5We do not find any weight in the submissions made by learnedcounsel for the petitioner. The four additional grounds raised by therespondent-revenue before the Tribunal for admission read thus:- “13. The learned CIT(A) erred in passing the impugned order inviolation of principles of natural justice in disregard of law andcontrary to the material on record.violation of principles of natural justice in disregard of law andcontrary to the material on record. 14. The learned CIT(A) erred in accepting new evidences inviolation of Rule 46A|violation of Rule 46A| 15. The learned CIT(A) erred in passing a judgment in respect oftechnological issues without having any technical competence.technological issues without having any technical competence. 16. The learned CIT(A) erred in not appreciating thatrequirements of law in respect of provisions contained in Section10B have not been satisfied in present case.”requirements of law in respect of provisions contained in Section10B have not been satisfied in present case.” 6 After considering the matter, it has been categorically recordedby the Tribunal that as per the provisions of Rule 11 of the Income Tax.(Appellate Tribunal) Rules, 1963 (in short, “the Rules”), there is no limitationfor raising additional grounds before the Tribunal. It has also been providedthat the Tribunal in deciding the appeal shall not be confined to the groundsset forth in the memorandum of the appeal. In the present case, the issues asquoted above being additional grounds were considered to be legal issues.which could be decided on the basis of the facts and the material available onthe record. Thus, the said grounds are essential for the just decision of thecontroversy involved. Learned counsel for the petitioner has not been able toproduce any material on record to show that the order passed by the Tribunalis illegal or perverse. vaAdverting to the judgments relied upon by the learned counselfor the petitioner it may be noticed that in|Aravali Engineers Limited’s case(supra), it was held that an Appellate authority can allow a question to beraised for the first time even if such a question was not raised at a lowerforum but the discretion to do so has to be exercised in the interest of justicein the facts and circumstances and not mechanically. InPrabhakar’sCdaSC(supra), it was held by the Apex Court that it is well settled principle ofjurisprudence that right not exercised for long time is non existent. Evenwhen no limitation period is prescribed by statute, courts apply doctrine ofdelay/laches/acquiescence and non suit litigants who approach courtbelatedly without justifiable explanation. There is no quarrel with thepropositions enunciated in these decisions. However, the situation in thepresent case being different, the petitioner cannot derive any advantage fromthese decisions. — § In view of the above, we do not find any ground to interfere withthe impugned order dated 3.11.2016 passed by the Tribunal allowing theadditional grounds raised by the respondent-revenue. Consequently, thepetition is dismissed. The Tribunal shall make sincere efforts for decidingthe pending appeal expeditiously in accordance with law. (Ajay Kumar MiuittalJudgeJanuary 20, 2017(Ramendra Jain)JudgeWhether speaking/reasonedYes/NoWhether reportable Yes/No |