M/s. PARMES DIAMOND EXPORTS P. LTD., MUMBAI V. DCIT - 5(2), MUMBAI

ITA 1075/MUM/2009

• Counselvise Citation: 107519914 RSA 2009
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-01-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 17-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: VIJAYAKUMA R S BIYANI
• Keywords: Additional evidence
• Section: 5(2)

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 NOS.1073, 1074 & 1075/MUM/2009 : ASST. YEARS 1 998-99, 1999-2000 & 2000-2001 M/S.PARMES DIAMOND EXPORTS PVT.LTD. 2205, PANCHRATNA, OPERA HOUSE MUMBAI 400 004. PAN : AAACP2014P. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 5(2) MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SMT.AARTI VISSANJI & SHRI VIJAYAKUMA R S.BIYANI RESPONDENT BY : SHRI A.K.NAYAK DATE OF HEARING : 17.01.2012. DATE OF PRONOUNCEMEN T : 25.01.2012 O R D E R PER R.S.SYAL, AM : THESE THREE APPEALS BY THE ASSESSEE IN RELATION TO ASSESSMENT YEARS 1998- 1999, 1999-2000 AND 2000-2001 HAVE A SOLITARY ISSUE ABOUT THE DENIAL OF DEDUCTION U/S 80-IB. SINCE THIS IS THE ONLY ISSUE R AISED IN ALL THESE THREE APPEALS, WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF B Y THIS CONSOLIDATE ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE IS A MANUFACTURER AND EXPORTER OF DIAMOND. IT CLAIMED DEDUCTION U/S 8 0-IB WHICH WAS NOT ALLOWED BY THE ASSESSING OFFICER. WHEN THE MATTER EVENTUALL Y CAME UP BEFORE THE TRIBUNAL, THE SAME WAS SENT BACK TO THE A.O. FOR CO NSIDERING CERTAIN ADDITIONAL EVIDENCE WHICH THE ASSESSEE WANTED TO FILE IN SUPPO RT OF ITS CLAIM FOR DEDUCTION. IN THE PRESENT PROCEEDINGS, THE ASSESSING OFFICER AGAIN DID NOT ALLOW DEDUCTION U/S 80-IB WHICH ACTION WAS APPROVED IN THE FIRST AP PEAL IN ALL THE YEARS IN QUESTION. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS OBSERVED THAT THE CLAIM FOR DEDUCTION U/S 80-IB HAS BEEN DENIED TO ITA NOS.1073, 1074 & 1075/MUM/2009 M/S.PARMES DIAMOND EXPORTS PRIVATE LIMITED. 2 THE ASSESSEE ON THE REASONING THAT CUTTING AND POLI SHING OF DIAMONDS, BEING THE ACTIVITY UNDERTAKEN BY THE ASSESSEE, DOES NOT AMOU NT TO MANUFACTURE AND HENCE CANNOT BE MADE ELIGIBLE FOR DEDUCTION U/S 80-IB. TH E LEARNED A.R. HAS PLACED ON RECORD A COPY OF THE DIRECT DECISION OF THE MUMB AI BENCH OF THE TRIBUNAL IN SHEETAL DIAMONDS LTD. VS. ITO [(2011) 47 SOT 75 (MU MBAI)], { TO WHICH ONE OF US NAMELY THE LEARNED JM IS PARTY}, ENTITLING THE A SSESSEE TO DEDUCTION U/S 80-IA ON CUTTING AND POLISHING OF DIAMONDS. THE LEARNED D EPARTMENTAL REPRESENTATIVE ARGUED THAT THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF A.O. FOR ALLOWING THE ASSESSEE AN OPPORTUNITY TO PRODUCE ADDITIONAL EVIDE NCE ONLY BUT NO SUCH ADDITIONAL EVIDENCE WAS PRODUCED IN THE FRESH PROCE EDINGS. THIS CONTENTION HAS BEEN CONTROVERTED BY THE LEARNED A.R. BY RELYING ON THE LAST PAGE OF THE IMPUGNED ORDER IN WHICH IT HAS BEEN REMARKED BY THE LEARNED CIT(A) THAT : I FIND THAT IN THE ADDITIONAL EVIDENCES THERE IS NOTH ING TO TAKE A VIEW CONTRARY TO THE VIEW .. THIS INDICATES THAT THE ADDITIONA L EVIDENCE WAS IN FACT FILED IN SUPPORT OF THE CLAIM FOR DEDUCTION. BE THA T AS IT MAY WHEN THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHEETAL DIAMONDS LTD. (SUPRA) HAS HELD THAT CUTTING AND POLISHING OF DIAMONDS AMOUNTS TO MANUFACTURE AND DEDUCTION SHOULD BE ALLOWED, THERE IS NO REASON TO DENY DEDUCTION UNDER SIMILAR CIRCUMSTANCES. AS SUCH WE OVERTURN THE IMPUGNED ORD ER ON THIS ISSUE AND ORDER FOR THE GRANTING OF DEDUCTION U/S 80-IB IN ALL THE YEARS IN QUESTION. 4. IN THE RESULT, ALL THE APPEALS ARE ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JANUARY, 2012. SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 25 TH JANUARY, 2012. DEVDAS* ITA NOS.1073, 1074 & 1075/MUM/2009 M/S.PARMES DIAMOND EXPORTS PRIVATE LIMITED. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-V, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.