ITO,Ward-(2), Kolkata, Kolkata V. M/s. Surya Twins(P)Ltd, Kolkata

ITA 1053/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75065 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 16-07-2012
• Court: TRIBUNAL
• Department Lawyers: NIRANJA SATPATI
• Assessee Lawyers: N O N E
• Keywords: Depreciation
• Section: 143(3); 80IB; 32; 145

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 1053/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER, WD-1(2), KOLKATA. VS. M/S. SU RYA TWINS PVT. LTD. (PAN: AAECS6867N) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 06.02.2014 DATE OF PRONOUNCEMENT: 13.02.2014 FOR THE APPELLANT: SHRI NIRANJA SATPATI, JCIT, SR. DR FOR THE RESPONDENT: N O N E $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-I, KOLKATA IN APPEAL NO. 514/CIT(A)-1/1(2)/07-08 DATED 30.04.2012. ASSESSME NT WAS FRAMED BY ITO, WD-1(2), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DATED 31.12. 2007. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN ALLOWING DEDUCTION U/S. 80IB OF THE ACT RELYING ON THE DECIS ION OF KOLKATA BENCHES IN IT(SS)A NOS. 39 TO 45/KOL/2007 DATED 27.07.2007. FOR THIS, RVENUE HAS RAISED FOLLOWING TWO GROUNDS: 1. LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S. 80I B RELYING ON THE DECISION OF THE HONBLE ITAT, E BENCH, KOLKATA IN I.T.(SS)A NOS. 39 TO 45/KOL/2007 DT. 27.07.2007. 2. LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT DE CISION OF THE HONBLE ITAT RELIED UPON DOES NOT ADJUDICATE ALLOWABILITY OF DEDUCTION U/S. 80IB. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO DISALLOWED DEDUCTION U/S. 80IB OF THE ACT BY RELYING ON THE PREVIOUS YEARS ASSESSMENT ORDER BY OBSERVING IN PARA 3.2.3 TO 3.2.5 AS UNDER: 3.2.3. IN THE PREVIOUS 7 ASST. YRS. ASSESSMENT FOR THE ASST. YRS. 1998-99 TO 2004-05 WAS MADE U/S. 153C/143(3) OF THE ACT AND ASSESSING OFFI CER AND DEDUCTION UNDER SECTION 80IB WAS NOT ALLOWED. AGAINST SUCH ORDER LD. CIT(A )-1, KOLKATA IN HIS COMBINE ORDER DATED 30.03.2007 FOR ALL THE 7 ASST. YRS. REJECTED THE APPELLANTS PETITION ON THE GROUND THAT SECONDLY, FROM THE PERUSAL OF THE COMPUTATI ON OF TOTAL INCOME FILED ALONG WITH THE RETURN, IT IS SEEN THAT THE APPELLANT HAS NOT CLAIM ED THE DEDUCTION U/S. 80IB FOR ANY OF THE FIRST FIVE ASSMT. YEARS. SINCE THE CLAIM HAS NOT B EEN MADE IN THE COMPUTATION OF TOTAL INCOME, THE APPELLANT CANNOT BE AGGRIEVED AGAINST T HE DECISION OF THE AO. ACCORDINGLY THIS GROUND STANDS REJECTED FOR ALL THESE FIVE ASSM T YEARS. FOR THE ASST. YRS 2003-04 & 2 ITA NO.1053/K/2012 SURYA TWINS PVT. LTD. , AY:2005-06 2004-05- SINCE THE DOCUMENTARY EVIDENCE WAS NOT FI LED BEFORE THE AO FOR HIS EXAMINATION, THE SARNE COULD NOT BE CALLED FOR AND EXAMINED AT THIS END IN TERMS OF THE PROVISION OF RULE 46A. HENCE THE CLAIM STANDS REJEC TED. 3.2.4. THEREFORE, IT IS SEEN THAT ASSESSEE COMPANY NEVER FURNISHED ANY REQUISITES PAPERS BEFORE THE INCOME TAX AUTHORITY AT ANY POINT OF TIM E EXCEPT SPECIFIED AUDT REPORT. ON REQUISITION TO PRODUCE OR CAUSE TO BE PRODUCED MATE RIALS ON THE BASIS OF WHCH AUDITOR MADE THE REPORT ALSO WAS NOT FURNISHED DURING THE C OURSE OF HEARING STAGE. ITO IS NOT COMPELLED TO ACCEPT ACCOUNTS IN ALL CASE S- SECTION 145 DOES NOT COMPEL THE ITO TO ACCEPT THE ACCOUNTS IN ALL CASES AND OUTGOIN GS PREPARED FROM THE BOOKS OF ACCOUNTS.- CIT V. A. KRISHNASWAMI MUDALIAR (1964) 5 3 ITR 122 (SC) 3.2.5. IN VIEW OF ABOVE FACT AND CIRCUMSTANCES , T S THEREFORE, CONCLUCLED THAT ASSESSEE COMPANY COULD NOT ESTABLISH THE CONDITION/REQUISITE S REQUIRED TO BE ELGBLE FOR DEDUCTION UNDER SECTON 801B. THEREFORE, DEDUCTON UNDER SECTION 80IB IS NOT ALLOWED. 4. AT THE OUTSET, IT IS TO BE MENTIONED THAT THE T RIBUNAL IN ASSESSMENT YEARS 1998-99 TO 2004-05 IN ITA NOS. 39 TO 45/KOL/2007 HAS ALLOWED T HE CLAIM OF THE ASSESSEE AND CIT(A) RELYING ON THE SAME HAS ALLOWED THE CLAIM OF THE AS SESSEE BY OBSERVING AS UNDER: THE 2 ND GROUND RELATES TO DISALLOWANCE OF 80IB(5) CLAIM OF THE ASSESSEE. THE A/R HAS RELIED UPON THE JUDGMENT OF ITAT DT. 27.07.2007 FOR AYRS. 1998-99 TO 2004-05 IN ASSESSEES OWN CASE WHERE HONBLE ITAT ALLOWED THE CLAIM OF THE ASSESSEE FOR 80IB(5) AS CLAIMED IN THE RETURN OF INCOME AND PRODUCED TAX AU DIT REPORT ALONG WITH 80IB REPORT. KEEPING IN VIEW, THESE FACTS AND CIRCUMSTANCES, GRO UND NO.2 IS ALLOWED. WHILE ALLOWING THE CLAIM OF 80IB THE ASSESSING OFFI CER IS DIRECTED TO ALLOW THE CLAIM OF DEPRECIATION U/S. 32 WHILE COMPUTING THE GROSS TOTA L INCOME AND TEN 80IB CLAIM SHOULD BE ALLOWED. HENCE, GROUND NO. 3 IS ALLOWED. 5. NOW BEFORE US, THE LD. SR. DR COULD NOT CONTROVE RT THAT THERE IS ANY FACTUAL DIFFERENCE IN THIS YEAR. AS THE ISSUE IS SQUARELY COVERED BY ASSESSEES OWN CASE FOR AYS 1998-99 TO 2004- 05, CITED SUPRA AND SINCE CIT(A) HAS GIVEN RELIEF T O THE ASSESSEE BY RELYING ON THE SAME, WE DO NOT FIND ANY INFIRMITY IN HIS ORDER AND THE SAME IS UPHELD. APPEAL OF REVENUE IS DISMISSED. 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH FEB., 2014 SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13TH FEBRUARY, 2014 12 '3' 4 JD.(SR.P.S.) 3 ITA NO.1053/K/2012 SURYA TWINS PVT. LTD. , AY:2005-06 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT- ITO, WARD-1(2), KOLKATA. 2 ./,- / RESPONDENT M/S. SURYA TWINS PVT. LTD., 10, DR. RAJENDRA PRASAD RD., KOLKATA-700 001. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .