Delhi High Court
Jay Bharat Maruti Limited vs Dy Cit, Circle-4(1) on 8 March, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (C) No. 1274/2011
Jay Bharat Maruti Limited ....Petitioner
Through Mr. R. Santhanam and
Mr. A.P.Singh, Advocates.
VERSUS
Dy CIT, Circle-4(1) .....Respondent
Through Mr. Kamal Sawhney, Sr. Standing
Counsel & Mr.Amit Shrivastava, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 08.03.2011
We have heard Mr. R. Santhanam and Mr. Kamal Sawhney,
counsel for the petitioner and the respondent.
2. Having gone through the records, we find that a limited issue
arises for consideration and the writ petition can be disposed of at this
stage itself. This will curtail delay and expedite the proceedings.
3. By judgment dated 17th February, 2010, this Court in ITR No.
628/2009, M/s Jay Bharat Maruti Limited vs. Commissioner of Income
Tax, upheld the order of the Income Tax Appellate Tribunal (Tribunal,
for short) remanding the issue under Section 43B of Income Tax Act,
1961 (Act, for short) relating to the assessment year 1995-96, to the
Assessing Officer. The Tribunal had held that in view of the order of
the Hon'ble Supreme Court in Berger Points India Ltd. vs.
Commissioner of Income-tax, Calcutta: 266 ITR 99, the contention of
the petitioner regarding payment of Rs.51,06,391/- on account of excise
duty paid was correct. However, the matter was remanded to the
Assessing Officer to examine whether this amount of Rs.51,06,391/-
was also loaded on the closing stock of the year in question, the
opening stock of the succeeding year and therefore, has to be reduced
so as to avoid double deduction. In the judgment dated 17th January,
2010, the High Court had observed as under:-
"Now, before us, the learned counsel for the
appellant/assessee submits that the finding of the
Tribunal that the sum of Rs.51,06,391/- had been
loaded on the closing stock is factually incorrect
and, therefore, there was no need for deducting
the said sum from the opening stock of the
succeeding year. We feel that this aspect of the
matter can be adequately addressed by directing
the Assessing Officer to verify as to whether the
said amount of excise duty paid during the year
had been loaded on the closing stock or not. In
case it was loaded, then the observations of the
Tribunal would stand. However, if it was not so
loaded, then there would be no need for reducing
the said amount from the opening stock of the
succeeding year."
4. Accordingly, the matter was taken up by the Assessing Officer
after issue of notice to the assessee. The Assessing Officer has passed
an order dated 27th December, 2010, in which he has held as under:-
"03. Notice under Section 143(2) dated
25.10.2010 was issued to the assessee. The
assessee company vide its submission dated
13.12.2010 submitted that the amount of
Rs.51,06,391/- was loaded in the closing balance
of stock. Thus, respectfully following the direction
of Hon'ble ITAT as well as the Hon'ble High Court,
no addition on this account is made in the current
year. However, as per the direction of the
Hon'ble High Court as well as the Hon'ble ITAT the
same amount will be disallowed in the succeeding
assessment year i.e. A.Y. 1996-97."
5. This order dated 27th December, 2010, is impugned before us.
Learned counsel for the petitioner has rightly submitted that the
Assessing Officer has not dealt with the issue and contention as raised
by the petitioner in their letter dated 13th December, 2010, the relevant
portion of which reads as under:-
"Further during the A.Y. 1996-97 the closing
balance of excise duty paid was Rs.68,31,211/-
out of which after adjusting the opening balance
of Rs.51,06,391/- the balance of Rs.17,24,820/- as
a closing balance has been claimed u/s 43B and
the same was allowed under the CIT (A) (copy of
the order is enclosed).
As the closing balance of A.Y. 1995-96 of
Rs.51,06,391/- is already adjusted in the
subsequent year (A.Y. 1996-97) there is no need
for reducing the said amount from the opening
balance of the succeeding year."
6. The said contention is relevant and has to be dealt with by the
Assessing Officer. It is not necessary for the Assessing Officer to accept
the said contentions, but he must give reasons for the same.
Accordingly, we quash the order dated 27th December, 2010 and
remand the matter to the Assessing Officer to examine the contention
of the petitioner in their letter dated 13th December, 2010 by a
speaking and reasoned order.
7. As noted above, the matter pertains to the order for Assessment
year 1995-96 and in the first round also the matter travelled to the High
Court. We have interfered to cut delay and expedite the matter. We
also find that principles of natural justice have not been observed as the
contention has not been examined and no reasons have been given.
The petitioner will appear before the Assessing Officer on 28th March,
2011 at 2.30 PM when a date for hearing will be fixed. Thereafter the
matter will be decided by the Assessing Officer as expeditiously as
possible and preferably within one month thereafter.
8. The writ petition is accordingly disposed of without any orders as
to costs. Dasti.
SANJIV KHANNA, J.
CHIEF JUSTICE
March 8, 2011
kkb
