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Barrier Films P. Ltd, Mumbai vs Assessee

Income Tax Appellate Tribunal13 February 2015

Ratio decidendi

The rule this decision rests on

The Tribunal condoned a delay of 47 days in filing the appeal, finding sufficient cause on the assessee's application, and admitted the appeal for hearing. Where the assessee has consistently followed a particular method of accounting for modvat/Cenvat credit, the assessing officer is required to examine the working furnished by the assessee to determine whether that method complies with section 145A of the Income Tax Act, 1961, and the addition under clause (b) of that section cannot be sustained on a bare rejection of the method without such examination. Where the question whether the assessee's method of accounting complies with section 145A depends on working papers that were furnished but not examined by the tax authorities, the matter is to be restored to the assessing officer with a direction to examine those working papers and decide the issue afresh in accordance with law, after affording the assessee an adequate opportunity of being heard.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

आयकर अपील य अधकरण, मुंबई यायपीठ "बी" मुंबईIN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI

BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) सव ी बी.आर.बा करन, लेखा सद य एवं ी संजय गग , या यक सद य के सम

आयकर अपील सं./I.T.A. No.596/Mum/2012 ( नधा रण वष / Assessment Year : 2007-08)

M/s Barrier Films Pvt Ltd, बनाम/ ACIT-8(OSD), B-31, Ground Floor, Mumbai Vs. New Epire Indl, Estate, Kondivita road, Andheri, (E), Mumbai-400059 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AAACB3298C

अपीलाथ ओर से / Assessee by Shri P K Parida/ Ms.Sanjukta Chowdhary यथ क" ओर से/ Revenue by Shri Asghar Jain V P

सन ु वाई क" तार&ख / Date of Hearing : 15.1.2015 घोषणा क" तार&ख /Date of Pronouncement : 13. 2.2015

आदे श / O R D E R

Per B.R.BASKARAN, Accountant Member:

The appeal by the assessee is directed against the order dated

19.9.2011 passed by the ld. CIT(A)-16, Mumbai and it relates to

assessment year 2007-08.

2. The appeal is barred by 47 days. The assessee has filed an

application praying for condoning the delay. We heard the parties on this

preliminary issue. Having regard to the submissions made in the

application, we condone the delay and admit the appeal for hearing.

2 ITA. No596/Mum/2012

3. The Solitary issue urged by the assessee relates to addition of

Rs.10,44,263/- relating to unutilized modvat credit.

4. We heard the parties and perused the record. The AO noticed that

the assessee has shown unutilized modvat credit of Rs.10,40,668/- in its

accounts, but did not offer the same as income. The AO took the view

that the same is to be assessed as income under clause (b) of Section

145A of the Income Tax Act, 1961 (the Act). Though the assessee

contended it has been following consistently a particular method for

accounting Cenvat consistently, the AO rejected the same by following the

decision of the Hon'ble Apex Court in the case of CIT V/s British Paints

(India) Ltd reported in 188 ITR 44(SC). The ld. CIT(A) also confirmed the

same. Aggrieved, the assessee filed this appeal before the Tribunal.

5. The ld. counsel for the assessee placed reliance before us on the

decision of Co-ordinate Bench of the Tribunal in the case of Hawkins

Cookers Ltd V/s Income Tax Officer (2008) 14 DTR (Mum) (Trib) 206,

wherein it has been held that the assessee has to ensure that there is no

double adjustment of modvat credit and accordingly the Tribunal had set

aside the matter to the file of the AO to verify the facts of the case and

delete the impugned addition if it is given effect to the provisions of

section 145A of the Act. The ld. counsel submitted that the method of

accounting followed by the assessee with regard to Cenvat is in 3 ITA. No596/Mum/2012

accordance with the provisions of section 145A of the Act. The ld.counsel

submitted that the assessee furnished detailed working before the tax

authorities, however, the same was not examined by them. Accordingly,

he prayed that the matte may be set aside to the file of the AO so that the

assessee could satisfy the AO that the method of accounting followed by

the assessee is in accordance with the provisions of section 145A of the

Act.

6. The ld. DR did not object to the plea put fort by the ld. AR.

7. Having regard to the submissions of ld. AR, we set aside the order

of ld. CIT(A) on this issue and restore the same to the file of the AO with a

direction to examine the working furnished by the assessee so as to satisfy

himself that the same complies with the provisions of section 145A of the

Act and thereafter decide the issue in accordance with the law, after

providing adequate opportunity of being heard to the assessee.

8. In the result, the appeal of the assessee is allowed for statistical purposes.

The above order was pronounced in the open court on 13th Feb, 2015.

घोषणा खल ु े यायालय म* +दनांकः13th Feb, 2015 को क" गई ।

sd sd

(संजय गग /SANJAY GARG) ( बी.आर.बा करन / B.R. BASKARAN) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मुंबई Mumbai: 13th Feb,2015. व. न.स./ SRL , Sr. PS 4 ITA. No596/Mum/2012

आदे श क !त#ल$प अ%े$षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु2त(अपील) / The CIT(A)- concerned

4. आयकर आयु2त / CIT concerned

5. 3वभागीय त न5ध, आयकर अपील&य अ5धकरण, मुंबई / DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, true copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील&य अ5धकरण, मुंबई /ITAT, Mumbai

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