OKASA P.LTD, MUMBAI V. DCIT CEN CIR-2, MUMBAI

CO 8/MUM/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6886 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NO.2980/MUM/2010 : ASST. YEAR 2007-2008 THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 2 MUMBAI. M/S.OKASA PRIVATE LIMITED 12 GUNBOW STREET, HORNBY VIEW BLDG. FORT, MUMBAI 400 001. PAN : AAACO0677L (APPELLANT) VS. (RESPONDENT) CO NO.8/MUM/2011 : ASST. YEAR 2007-2008 M/S.OKASA PRIVATE LIMITED 12 GUNBOW STREET, HORNBY VIEW BLDG. FORT, MUMBAI 400 001. THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 2 MUMBAI. (APPELLANT) VS. (RESPONDENT) REVENUE BY : SHRI A.C.TEJPAL, CIT-DR ASSESSEE BY : SHRI D.P.BAPAT DATE OF HEARING : 25.01.2012 DATE OF PRONOUNCEMENT : 31.01.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-T AX (APPEALS) ON 15.02.2010 IN RELATION TO THE ASSESSMENT YEAR 2007- 2008. 2. THE ONLY GROUND RAISED BY THE REVENUE IN ITS APP EAL IS AGAINST THE GRANTING OF DEDUCTION U/S 80-IB ON THE PROFITS DERI VED FROM THE WORK / MANUFACTURING GOT DONE THROUGH LEASE AND LICENSE MA NUFACTURERS (LLMS). AT THE VERY OUTSET THE LEARNED COUNSEL FOR THE ASSESSE E SUBMITTED THAT THIS ISSUE IS COMING FROM THE EARLIER YEARS INASMUCH AS THE ASSES SING OFFICER DID NOT GRANT DEDUCTION U/S 80-IB ON SUCH ISSUE. REFERRING TO THE ORDERS PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR S 2004-2005, 2005-2006 AND 2006-2007 AND ALSO THE EARLIER YEARS, THE LEARN ED A.R. CONTENDED THAT THIS ITA NO.2980/MUM/2010 & CO.8/MUM/2011 SHRI OKASA PRIVATE LIMITED. 2 ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOUR. IN THE OPPOSITION THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON SOME OTHER OR DERS TO CONTEND THAT A CONTRARY VIEW SHOULD BE TAKEN. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS NOTICED THAT THE INSTANT ISSUE IS RECU RRING FROM YEAR TO YEAR. IN THE IMMEDIATELY PRECEDING YEAR THE TRIBUNAL VIDE ITS OR DER DATED 29.10.2010 IN ITA NO.5428/MUM/2009 DECIDED IT IN ASSESSEES FAVOUR VI DE PARAS 2 TO 4 OF ITS ORDER BY RELYING ON THE ORDER PASSED BY THE CO-ORDINATE B ENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-2006. THE COPY OF SAID ORDER FOR THE EARLIER YEARS HAD ALSO BEEN PLACED ON RECORD. I N VIEW OF THE FACT THAT THE TRIBUNAL IS CONSISTENTLY ALLOWING THE ASSESSEES CL AIM ON THIS ISSUE, IN OUR CONSIDERED OPINION, THERE IS NO QUESTION OF OBSERVI NG DEPARTURE THERE FROM. RESPECTFULLY FOLLOWING THE PRECEDENTS, WE UPHOLD TH E IMPUGNED ORDER ON THIS ISSUE. THIS GROUND IS NOT ALLOWED. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IN ITS CRO SS OBJECTION IS AGAINST CONFIRMATION OF DISALLOWANCE U/S 14A OF THE ACT, AM OUNTING TO ` 37,995. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTED THAT THE QUESTION OF MAKING DIS ALLOWANCE U/S 14A IS NO MORE RES INTEGRA IN VIEW OF THE JUDGMENT OF THE HONBLE BOMBAY HI GH COURT IN GODREJ & BOYCE LTD. MFG. CO. VS. DCIT [(2010) 328 I TR 81 (BOM)] HOLDING THAT THE PROVISIONS OF SECTION 14A ARE APPLICABLE IN CIRCUMSTANCES AS ARE PREVAILING PRESENTLY AND THE DISALLOWANCE HAS TO BE WORKED OUT BY THE AO ON SOME `REASONABLE BASIS AND NOT RULE 8D. UNDER SUCH CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF THE AO FOR DECIDING THE QUANTUM OF DISALLOWANCE, AS PER THE AF ORE-NOTED JUDGMENT, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.2980/MUM/2010 & CO.8/MUM/2011 SHRI OKASA PRIVATE LIMITED. 3 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED ON THIS 31 ST DAY OF JANUARY, 2012. SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 31 ST JANUARY, 2012. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) CENTRAL-I, MUMBAI 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.