ITA No.698 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ITA No.698 of 2010 Date of decision: 31.1.2011 The Commissioner of Income Tax, Karnal -----Appellant Vs. M/s Om Overseas, Shiv Nagar, Panipat ----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Yogesh Putney, Sr.Standing Counsel for the revenue. Adarsh Kumar Goel,J. 1. This order will dispose of ITA Nos.698 and 718 of 2010 as it has been stated by learned counsel for the revenue that both the appeals involve common questions. 2. ITA No. 698 of 2010 has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (for short, ‘the Act’) against the order of the Income Tax Appellate Tribunal, Delhi bench ‘B’ New Delhi passed in ITA No.2724/Del/2009 dated 29.1.2010 for the assessment year 2002-03, claiming following substantial questions of law:- “i) Whether on the facts and circumstances of the case and in law, the learned ITAT was right in holding that the CIT(A) had duly put all the objections and documents to all the parties for their comments, it cannot be said that there was violation of provisions contained in Rule 46A of the Income Tax Rules, 1962, despite the fact that opportunity was given by the AO under section 142A(3) of the Income Tax Act, 1961 to the assessee during the course of assessment proceedings and any evidence if any or objections to the DVO’s report was to be submitted before the AO which was not done and that the 1 ITA No.698 of 2010 assessee was not eligible to produce new evidence for the first time before the CIT(A) and also not appreciating the fact that there is no provision for a revised report under section 142A of the Income Tax Act, 1961? ii) Whether on the facts and circumstances of the case and in law, the learned ITAT was right in law in observing that there was no violation of Rule 46A of the Income Tax Rules, 1962, despite the fact that none of the conditions prescribed under rule 46A were satisfied by the assessee for admission of additional evidence in as much as there was no occasion where (a) the AO refused to admit the evidence, (b) or the assessee was prevented by sufficient cause from producing the evidence which was called upon to be produced by the AO, (c) or the assessee was prevented by sufficient cause for producing before the AO any evidence which is relevant to the ground of appeal, (d) or the AO passed the assessment order without giving the assessee sufficient opportunity to adduce evidence relevant to any ground of appeal? iii) Without prejudice to the above, whether on the facts and in the circumstances of the case, the learned ITAT is right in arriving at the conclusion that a sum of Rs.91,30,355/- on ‘Humidification Plant’ and Rs.1,20,01,718/- under the head ‘Trenches’ considered by the DVO’s subsequent invalid report, be treated as investment and holding that the investment made in the building account under the head ‘Humidification Plant’ and ‘Trenches’ considered for allowing relief to the assessee is completely ignoring the provision of section 142A of the Income Tax Act? iv) Whether in the facts and circumstances of the case and in law, the learned ITAT is right in quashing the assessment made by the AO under section 143(3)/147 of the Income Tax Act, 1961, rightly reopened by the AO after obtaining approval from the CIT within the stipulated time allowed under section 151(1) 2 ITA No.698 of 2010 of the income Tax Act, 1961 ignoring the proviso below section 147 read with explanation (1) there under? v) Whether on the facts and in the circumstances of the case, the learned ITAT was justified in allowing deduction under section 80-HHC on the face value of DEPB in the case where turnover exceeds Rs.10 crores in view of the proviso (ii), (iii) and (iv) inserted by the Taxation Law (Amendment) Act, 2005 with retrospective effect from 1.4.1998? vi) Whether on the facts and in the circumstances of the case, the learned ITAT was justified in allowing deduction under section 80HHC in respect of entire DEPB amount by incorporating the same in the computation of business profit under section 28 (iiib)? vii) Whether on the facts and in the circumstances of the case, the learned ITAT was justified in placing reliance upon the decision of Income tax Appellate Tribunal, Special Bench, Mumbai in the case of M/s Topman Exports v. ITO (2009) – TOIL 531 ITAT dated 1.8.2009 despite the fact that the decision of the Mumbai ITAT Special Bench in the case of Topman Export, supra has been reversed by the decision of the Hon’ble Bombay High Court in the case of CIT v. Kalpataru Colours and Chemical, 2010 –TOIL- 482 HC-Mum?” 3. It has been fairly stated by learned counsel for the revenue that questions (i) to (iv) are covered against the revenue by order passed today in ITA No.692 of 2010 The Commissioner of Income Tax, Karnal v. M/s Om Overseas, Shiv Nagar, Panipat. Accordingly, the said questions cannot be held to be substantial questions of law. 4. As regards Questions (v) to (vii), it is submitted that the matter is covered by earlier order of this Court dated 16.8.2010 in ITA No.299 of 2010, 3 ITA No.698 of 2010 CIT v. M/s F.C.Sondhi and Company (P) Limited, remanding these issues for fresh decision to the Tribunal. In view of earlier order of this Court, the matter is remanded to the Tribunal for fresh decision on the issue involved in the said questions. If the assessee is aggrieved by this order, it will be at liberty to move this Court. 5. Both the appeals are disposed of. (Adarsh Kumar Goel) Judge January 31, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4