B.T.P. India Ltd. Vs. Commr. of Cex. - Court Judgment

Excerpt:
1. to get this appeal heard, the appellants are required to pre-deposit duty of rs. 5,37,434 and penalty of rs. 6,00,000. the issue involved is the alleged claiming of depreciation under section 32 of income-tax act and simultaneously availing modvat credit on capital goods.2. heards shri shankarraman, ld. advocate for the appellants and shri s. kannan, ld. dr 3. ld. advocate submits that out of the original demand of rs. 23,31,756, the order impugned had already set aside the demand for the amount other than the amount noted above which was confirmed. this relief was given to the appellants on the ground that the commissioner was satisfied that the depreciation under income-tax earlier claimed has been reversed by filing subsequent income-tax returns. ld. advocate submits that the duty amount noted above also is not to be confirmed for the same reasons as the ld. commissioner has wrongly construed that this amount was also not revised in the income-tax returns by reducing the depreciation claim by this amount. he submits that they had submitted a chartered accountant's certificate to this effect but the same was not accepted by the ld. commissioner. he further submits that the order impugned also suffers from being non-speaking one inasmuch as that their submission regarding no-applicability of the extended period has not been considered at all in the order. he submits that since the issue lies on a short compass, the appeal itself may be disposed of.5. we have carefully considered these submissions and records of the case. since the appeal lies on a short compass, we allow waiver and stay of recovery thereof and proceed to consider the appeal itself on merits. on a careful consideration of the same. we find that the dispute centres around a simple question of fact namely whether the present appellants had, in fact, reversed their claim for claiming depreciation under section 32 of the income tax act vide revised income-tax returns for the amount confirmed on the duty as noted above.the appellants have led chartered accountant's certificate as proof of having reversed for claim of such depreciation before the income tax authorities. before us on page 62 of the paper book, they have now submitted a detailed worksheet which correlates the depreciation claimed on various issues as per their original income-tax return vis-a-vis their revised income-tax return and they submit that a perusal of the same would clearly show that the entire amount of income-tax on which depreciation claimed for the year ending 31.3.95 has been reversed in their revised income-tax return for the year ended 31.3.95. it is not disputed that the issue pertains to that period only. unfortunately, this chart was not available before the ld.original authority and therefore, he examined the issue in the light of a different facts. we also find that the order impugned has not considered their submissions on non-applicability of extended period at all. to that extent, it is a non-speaking order. therefore, it is our considered opinion that the matter needs to be remanded to the original authority for reconsideration of the same. we set aside the order impugned and remand the matter to the ld. commissioner who shall reconsider the matter afresh after hearing the party and taking into consideration the clarificatory chart at page 62 of the paper book which is appended with this order. he shall also consider their submissions on the applicability or otherwise of the extended period and then proceed to pass a speaking order. the appeal is allowed by way of remand and the stay application is disposed of accordingly.

Judgment:
1. To get this appeal heard, the appellants are required to pre-deposit duty of Rs. 5,37,434 and penalty of Rs. 6,00,000. The issue involved is the alleged claiming of depreciation under Section 32 of Income-Tax Act and simultaneously availing Modvat credit on capital goods.

2. Heards Shri Shankarraman, Ld. Advocate for the appellants and Shri S. Kannan, Ld. DR 3. Ld. Advocate submits that out of the original demand of Rs. 23,31,756, the order impugned had already set aside the demand for the amount other than the amount noted above which was confirmed. This relief was given to the appellants on the ground that the Commissioner was satisfied that the depreciation under Income-Tax earlier claimed has been reversed by filing subsequent Income-Tax returns. Ld. Advocate submits that the duty amount noted above also is not to be confirmed for the same reasons as the Ld. Commissioner has wrongly construed that this amount was also not revised in the Income-Tax returns by reducing the depreciation claim by this amount. He submits that they had submitted a chartered Accountant's certificate to this effect but the same was not accepted by the Ld. Commissioner. He further submits that the order impugned also suffers from being non-speaking one inasmuch as that their submission regarding no-applicability of the extended period has not been considered at all in the order. He submits that since the issue lies on a short compass, the appeal itself may be disposed of.

5. We have carefully considered these submissions and records of the case. Since the appeal lies on a short compass, we allow waiver and stay of recovery thereof and proceed to consider the appeal itself on merits. On a careful consideration of the same. We find that the dispute centres around a simple question of fact namely whether the present appellants had, in fact, reversed their claim for claiming depreciation under Section 32 of the Income Tax Act vide revised Income-Tax returns for the amount confirmed on the duty as noted above.

The appellants have led Chartered Accountant's Certificate as proof of having reversed for claim of such depreciation before the Income Tax authorities. Before us on page 62 of the paper book, they have now submitted a detailed worksheet which correlates the depreciation claimed on various issues as per their original Income-Tax return vis-a-vis their revised Income-Tax return and they submit that a perusal of the same would clearly show that the entire amount of Income-Tax on which depreciation claimed for the year ending 31.3.95 has been reversed in their revised Income-Tax return for the year ended 31.3.95. It is not disputed that the issue pertains to that period only. Unfortunately, this chart was not available before the Ld.

Original authority and therefore, he examined the issue in the light of a different facts. We also find that the order impugned has not considered their submissions on non-applicability of extended period at all. To that extent, it is a non-speaking order. Therefore, it is our considered opinion that the matter needs to be remanded to the Original authority for reconsideration of the same. We set aside the order impugned and remand the matter to the Ld. Commissioner who shall reconsider the matter afresh after hearing the party and taking into consideration the clarificatory Chart at page 62 of the paper book which is appended with this order. He shall also consider their submissions on the applicability or otherwise of the extended period and then proceed to pass a speaking order. The appeal is allowed by way of remand and the stay application is disposed of accordingly.