GENUS POWER INFRASTRUCTURES LTD., Jaipur V. ITO, Jaipur

ITA 110/JPR/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5116 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEENA CIT DHK
• Assessee Lawyers: O P AGARWAL
• Keywords: Depreciation; Business expenditure; Capital receipt
• Section: 10

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH , - MH - TSU U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA-@ ITA NO. 110/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S GENUS POWER INFRASTRUCTURES LTD., (PREVIOUSLY KNOWN AS GENUS OVERSEAS ELECTRONICS LTD.), SPL-3, RIICO IND. AREA, SITAPURA, TONK ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCG 1218 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 169/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD-7(2), JAIPUR. CUKE VS. M/S GENUS POWER INFRASTRUCTURES LTD., SPL-3, RIICO INDUSTRIAL AREA, SITAPURA, TONK ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCG 1218 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL & SHRI O.P. AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI M.S. MEENA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07/09/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 09/09/2016 VKNS'K@ ORDER PER: A.D. JAIN, J.M. THESE ARE CROSS APPEALS, ONE BY THE ASSESSEE AND TH E OTHER BY THE REVENUE AGAINST THE ORDER DATED 09/11/2012 PASS ED BY THE LD ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 2 CIT(A)-III, JAIPUR, WHEREIN, THE FOLLOWING EFFECTIVE G ROUNDS OF ASSESSEES AS WELL AS REVENUES APPEALS HAVE BEEN TA KEN:- GROUNDS OF ASSESSEES APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GROSSLY ERRED IN UPHOLDING THE DISALLOWANCE OF RS.3,65,20,453/- MADE BY LD. ASSESSING OFFICER OF THE EXPENDITURE LEGITIMATELY INCURRED ON COMMISSION AND BROKERAGE AND SERVICE TAX THEREON. THE AFORESAID DISALLOWANCE WHICH HAS BEEN MADE ON TOTAL MISCONCEPTION OF THE FACTS AND FURTHER WITHOUT APPRECIATING THE CIRCUMSTANCES OF THE MATTER AND DISCARDING THE EVIDENCES BROUGHT ON RECORD HENCE THE DISALLOWANCES MADE DESERVES TO BE DELETED IN TOTO. 1.1 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN UPHOLDING THE DISALLOWANCE PARTICULARLY WHEN THE EXPENSES ON COMMISSION AND BROKERAGE WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. 1.2 THAT THE OBSERVATIONS MADE AND INFERENCE DRAWN BY THE LD. ASSESSING OFFICER AND UPHOLD BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN RELATION TO THE SERVICES RENDERED AND PAYMENT OF COMMISSION & BROKERAGE ARE BASED ON SUBJECTIVE OPINION AND ARE IN DISREGARD TO THE EVIDENCES AND MATERIAL PLACED ON RECORD THUS SUCH OBSERVATIONS AND INFERENCE DESERVES TO BE IGNORED AND EXCLUDED MORE PARTICULARLY WHEN NO INDEPENDENT ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 3 ENQUIRY WHATSOEVER WAS MADE FROM ANY CONCERNED PARTY FOR MAKING BASIS FOR SUCH A HUGE DISALLOWANCE. 1.3 THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN NOT FOLLOWING THE ORDERS OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR ALLOWING THE EXPENDITURE OF COMMISSION AND BROKERAGE DISALLOWED IN EARLIER ASSESSMENT YEARS BY MAKING SIMILAR CONCLUSION AND OBSERVATION IN ASSESSEES OWN CASE. SUCH ORDERS BEING BINDING IN NATURE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE FOLLOWED THE SAID ORDERS OF THE HON'BLE BENCH. 1.4 THAT THE LD. CIT(A) HAS FURTHER ERRED BY NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS PAID SERVICE TAX (INCLUDING CESS) OF RS. 38,37,072/- AND THE SAME HAS BEEN VERIFIED AND EXAMINED BY CONCERNED AUTHORITIES, THUS THE CONCLUSION DRAWN BY LD. CIT(A) THAT NO SERVICE RENDERED DESERVES TO BE STUCK DOWN, AND THEREFORE, THE COMMISSION SO PAID DESERVES TO BE ALLOWED AS BUSINESS EXPENDITURE. 1.5 THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THA T, ONCE SERVICE TAX INCLUSIVE OF CESS HAS BEEN PAID OF RS. 38,37,072/- AND, THERE WAS NO JUSTIFICATION TO SUGGEST THAT, COMMISSION PAID OF RS.3,26,83,381/- HAS NOT BEEN INCURRED FOR THE PURPOSES OF BUSINESS OF THE APPELLANT COMPANY AND AS SUCH ENTIRE COMMISSION SO PAID HAD TO BE ALLOWED AS EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS OF THE APPELLANT COMPANY. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 4 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE REDUCTION IN DEDUCTION CLAIMED U/S 80IC FROM RS.41,41,40,510/- TO RS. 38,59,27,471/-(REDUCED BY RS. 2,82,13,039/-) BY MAKING FOLLOWING ADJUSTMENTS MADE TO THE PROFITS OF THE ELIGIBLE UNDERTAKING AT HARIDWAR, UTTRANCHAL WITHOUT PROPERLY APPRECIATING THE SUBMISSIONS MADE AND EVIDENCES ADDUCED, THUS THE ASSESSEE IS ENTITLED TO THE DEDUCTION U/S 80IC AS CLAIMED AT RS. 41,41,40,510/-. S. NO. PARTICULARS AMOUNT 1. PURCHASES FROM JAIPUR UNIT 55,50,680/- 2. SALE PRICE TO JAIPUR UNIT 13,22,001/- 3. ALLEGED COMMON EXPENSES 2,13,40,358/- TOTAL 2,82,13,039/- GROUNDS OF REVENUES APPEAL:- (I) THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANC E OF DEFERRED REVENUE EXPENSES (SHARE ISSUE EXPENSES) OF RS. 50,40,000/- AS CLAIMED. (II) THE CIT(A) HAS ERRED IN HOLDING THAT THE SALES TAX INCENTIVE OF RS. 2,16,79,579/- WAS A CAPITAL RECEIPT EVEN WHEN THE RATIO OF THE DECISION CITED BY THE ASSESSEE I.E. 88 ITD 273 ETC. WAS NOT APPLICABLE IN VIEW OF THE DISTINGUISHABLE FACTS AND CIRCUMSTANCES OF THE ASSESSEE AND THE DECISION OF THE SUPREME COURT IN THE CASE OF NOVA PEN INDIA, REPORTED IN 3 SCC 606 AND EXPLANATION 10 TO SEC. 43(1) OF THE ACT. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 5 (III) THE CIT(A) HAS ERRED IN ALLOWING DEPRECIATION AT RS. 6,05,443/- ON 'PICK AND PLACE' MACHINE. (IV) THE CIT(A) HAS ERRED IN DIRECTING THAT THE DEDUCTION UNDER SEC. 80JJAA BE GIVEN AS DIRECTED BY CIT(A) FOR ASSTT. YEAR 2004-05. 2. THE ASSESSEES APPEAL PERTAINS TO TWO ISSUES, (I) DISALLOWANCE OF EXPENSES INCURRED ON COMMISSION AND BROKERAGE AND S ERVICE TAX THEREON & (II) REDUCTION IN DEDUCTION U/S 80IC OF T HE INCOME TAX ACT, 1961. 3. THE DEPARTMENTS APPEAL CONCERNS THE FOLLOWING ISS UES: (I) DEFERRED REVENUE EXPENSES (SHARE ISSUE EXPENSE S), (II) SALES TAX INCENTIVES TREATED AS CAPITAL RECEI PT, (III) DISALLOWANCE OF DEPRECIATION ON PEAK AND PLAC E MACHINE & (IV) DEDUCTION U/S 80JJAA OF THE ACT. 4. THE LD. CIT(A) HAS DEALT WITH THESE ISSUES AS UNDER :- COMMISSION AND BROKERAGE AND SERVICE TAX PAID THEREON 02. 1 ST GROUND OF APPEAL IS AGAINST THE DISALLOWANCE OF COMMISSION AND BROKERAGE EXPENSE OF RS. 3,26,83.381/-, INCLUDING THE SERVICE TAX PAID THERE ON. 02.1 SIMILAR DISALLOWANCES WERE MADE BY A.O. IN EARLI ER YEARS WHICH WERE DELETED BY HONBLE ITAT, JAIPUR AND ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 6 THE DEPARTMENT IS IN FURTHER APPEAL. HOWEVER, THE CIT(A) IN HIS APPELLATE ORDER IN ITA NO. 366/JPR/201 0- 11 DATED 05/12/2011 FOR A.Y. 2008-09 DISTINGUISHED THE FACTS OF A.Y. 2008-09 AND ONWARDS WITH THE FACTS OF EARLIER AND CONFIRMED THE ADDITION. FOR THE REASONS DISCUSSED THEREIN, THE DISALLOWANCE MADE IN A.Y. 200 9- 10 IS ALSO CONFIRMED. DEDUCTION U/S 80IC OF THE ACT 06. 5 TH GROUND OF APPEAL IS AGAINST DISALLOWANCE OF DEDUCTION OF RS. 2,82,13,039/- CLAIMED U/S 80IC OF THE ACT. 06.1 IDENTICAL ISSUE WAS DEALT IN PARA 11.3 OF THE A PPELLATE ORDER FOR A.Y. 2008-09 WHEREIN THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IC WAS CONFIRMED. SHARE ISSUE EXPENSES 04. 3 RD GROUND OF APPEAL IS AGAINST THE DISALLOWANCE OF DEFERRED REVENUE EXPENSES (SHARE ISSUE EXPENSES) OF RS. 50,40,000/- CLAIMED U/S 35D OF THE ACT. 04.1 SIMILAR ISSUE HAS BEEN DECIDED BY MY PREDECESS OR CIT(A) AND HONBLE ITAT, JAIPUR IN ALL THE EARLIER YE ARS IN FAVOUR OF THE APPELLANT, COPIES OF WHICH WERE PLA CED ON RECORD BY LD. AR. RESPECTFULLY FOLLOWING THE SAME , THE ADDITION MADE BY A.O. IS DELETED. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 7 SALES TAX INCENTIVES 03. 2 ND GROUND OF APPEAL IS AGAINST REJECTING THE CLAIM OF ASSESSEE THAT SALES TAX INCENTIVES OF RS. 2,16,79,5 79/- WERE CAPITAL RECEIPTS AND WERE NOT LIABLE FOR TAX. 03.1 SIMILAR ISSUE HAS BEEN DECIDED BY MY PREDECESS OR CIT(A) AND HONBLE ITAT, JAIPUR IN ALL THE EARLIER YE ARS IN FAVOUR OF THE APPELLANT, COPIES OF WHICH WERE PLA CED ON RECORD BY LD. AR. RESPECTFULLY FOLLOWING THE SAME , THE ADDITION MADE BY A.O. IS DELETED. DEPRECIATION ON PICK AND PLACE MACHINE 05. 4 TH GROUND OF APPEAL IS AGAINST THE DISALLOWANCE OF DEPRECIATION OF RS. 6,05,443/- ON PICK AND PLACE MACHINE. 05.1 SIMILAR ISSUE HAS BEEN DECIDED BY MY PREDECESS OR CIT(A) AND HONBLE ITAT, JAIPUR IN ALL THE EARLIER YE ARS IN FAVOUR OF THE APPELLANT, COPIES OF WHICH WERE PLA CED ON RECORD BY LD. AR. RESPECTFULLY FOLLOWING THE SAME , THE ADDITION MADE BY THE A.O. IS DELETED. DEDUCTION U/S 80JJAA OF THE ACT 07. 6 TH GROUND OF APPEAL IS AGAINST THE DISALLOWANCE OF DEDUCTION OF RS. 54,21,066/- CLAIMED U/S 80JJAA OF THE ACT. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 8 07.1 SIMILAR ISSUE HAS BEEN DECIDED BY MY PREDECES SOR CIT (A) IN FAVOUR OF ASSESSEE IN A.Y. 2008-09. HOWEVER, ON THE PERUSAL OF PARA 4.3. OF THE CIT (A) ORDER FOR A. Y. 2004-05 (ITA NO. 324/JPR/06-07 DATED 29.02.2008), I T IS EVIDENT THAT THE APPELLANT'S CLAIM WAS PARTLY ALL OWED AS UNDER:- ' I HAVE GONE THROUGH THE FACTS RELATED TO THIS ISSUE AND SUBMISSIONS OF LD. AR . HOWEVER, I FIND THAT IN THE ORIGINAL REPORT, AS WELL AS, IN THE REVISED REPORT FILED IN FORM NO. 10DA BY THE APPELLANT, THE APPELLANT HAS WRONGLY CLAIMED DEDUCTION U/S 80JJAA EVEN IN RESPECT OF THOSE WORKERS, WHO HAVE WORKED FOR LESS THAN 300 DAYS IN THE RELEVANT PREVIOUS YEAR, I.E. F.Y. 2003-04, WHICH IS IN VIOLATION OF THE PROVISIONS OF CLAUSE (II)(C) OF THE EXPLANATION TO S 80JJAA OF THE ACT. THEREFORE, THE A.O. IS DIRECTED TO ALLOW DEDUCTION ONLY TO THE EXTENT ALLOWABLE, AS NOTED ABOVE, AFTER GIVING AN OPPORTUNITY OF FILING THE REVISED AND CORRECT CLAIM OF THE DEDUCTION TO THE APPELLANT COMPANY. CONSEQUENTLY, THE GROUND IS TREATED AS PARTLY ALLOWED.' THE AFORESAID DECISION WAS FOLLOWED IN THE APPELLATE ORDER FOR A.Y. 2006- 07 ALSO. AS THE FACTS ARE SIMI LAR IN THIS YEAR, A.O. IS DIRECTED TO ALLOW DEDUCTION IN ACCORDANCE WITH THE DIRECTIONS GIVEN IN THE APPELLAT E ORDER FOR A.Y. 2004-05, REPRODUCED ABOVE. THE GROUND IS THEREFORE, PARTLY ALLOWED. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 9 5. ALL THESE ISSUES, AS CORRECTLY CONTENDED ON BEHA LF OF THE ASSESSEE AND NOT SUCCESSFULLY DISPUTED BY THE LD. CIT DR, STA ND COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNALS ORDER DATED 20/5/ 2016 PASSED IN ITA NO. 38/JP/2012, IN THE ASSESSEES CASE FOR A.Y. 200 8-09. THE IMPUGNED ORDER IS DATED 09/11/2012, WHEREAS THE AFORESAID TRIB UNAL ORDER IN THE ASSESSEES CASE FOR A.Y. 2008-09 IS DATED 20/5/2016 . THE SAID TRIBUNAL ORDER DATED 20/5/2016 HAS NOT BEEN SHOWN TO HAVE BEE N UPSET, OR EVEN STAYED ON APPEAL. THEREIN, THESE ISSUES HAVE BE EN DEALT WITH AS UNDER: COMMISSION AND BROKERAGE AND SERVICE TAX PAID THEREON 3.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. IN OUR CONSIDERED VIE W THE FACTS AND CIRCUMSTANCES OF THE ISSUE IN QUESTION AR E ADMITTEDLY SAME AS IN AY 2007-08 AND HAS BEEN DECID ED BY ITAT IN ASSESSEE'S OWN CASE BY ELABORATE FINDINGS MENTIONED ABOVE. BESIDES LD. COUNSEL HAS ELABORATEL Y ADVERTED TO THE FACTS TO THE EFFECT THAT THE PAYMEN T OF COMMISSION BEING BY CHEQUES AND ITS GENUINENESS IS NOT IN DOUBT. RELEVANT TDS HAS BEEN DEDUCTED AND BUSINESS EXPEDIENCY THEREOF HAS BEEN DEMONSTRATED. THE ISSUE OF SAID SHRI S K GUPTA STANDS ALREADY DECIDED AS HAVIN G NO ADVERSE EFFECT ON ASSESSEES CASE, BESIDES THERE IS NO PAYMENT TO ANY OF CONCERN ALLEGED TO BE OPERATED BY HIM ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 10 IN THIS YEAR. LD. COUNSEL HAS RELIED ON OTHER JUDIC IAL PRECEDENTS ON THIS ASSESSEE FAVOURING THE CASE OF T HE ASSESSEE IN VIEW THEREOF FOLLOWING THE ITAT ORDER FOR AY 2007-08, WE HOLD THE ASSESSEE IS ENTITLED TO THE CLA IM OF COMMISSION. THIS GROUND NO. 1 OF THE ASSESSEE IS ALL OWED. DEDUCTION U/S 80IC OF THE ACT 5.10 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE ON THE RECORD. IN OUR CONSIDERED VIEW THE ISSUE IN QUESTION STANDS SQUARELY COVERED BY ITAT JUDGMENT IS ASSESSEES OWN CASE FOR AY 2007-08, RELE VANT PORTION IS REPRODUCED ABOVE. THE BUSINESS, TRANSFERS BETWEEN JAIPUR AND HARIDWAR UNITS ARE NEARLY SAME. ASSESSEE HAS RELIED ON VARIOUS OTHER JUDGMENTS WHICH SUPPORT THE VIEW TAKEN BY ITAT. IN GIVEN FACTS AND CIRCUMSTANCES FOLLOWING THE ITAT JUDGMENT, WE RESTRICT THE REDUCTION U/S 80IC AT RS. 7,50,000/- AS HELD IN PRE CEDING YEAR. THIS GROUND IS PARTLY ALLOWED. SHARE ISSUE EXPENSES 8.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D MATERIAL AVAILABLE ON RECORD AS ALSO THE RELEVANT PROVISIONS AND CASE LAW. IN OUR CONSIDERED VIEW THE ACTION OF LD CIT(A) A PPLYING THE PROVISIONS OF SEC. 35D FOR AMORTIZATION OF SHAR E ISSUE EXPENSES IN 5 YEARS IS IN CONFORMITY WITH THE LEGAL PROVISIONS. WE SEE NO INFIRMITY THEREIN, CONSEQUENT LY THE SAME IS UPHELD. THIS GROUND NO. 2 OF THE REVENUE I S DISMISSED. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 11 SALES TAX INCENTIVES 10.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE ABOUT SALES TAX SUBSIDY BEING CAPITAL IN NATURE, STANDS SQUARELY DE CIDED IN FAVOUR OF THE ASSESSEE IN PRECEDING ASSESSMENT YEAR S BY THE ITAT BY A SERIES OF EARLIER YEARS FROM AY 2001-0 2 ONWARDS TO 2007-08. THUS THE ISSUE IS SETTLED IN FAVO R OF THE ASSESSE AND NO MORE RES INTEGRA. LD. CIT(A), HA S ALLOWED THE SALES TAX INCENTIVE AS CAPITAL RECEIPTS IN THE HANDS OF THE ASSESSEE BY FOLLOWING THESE MULTIPLE JUDGMENTS OF ITAT IN ASSSESSEES OWN CASE. IN THESE F ACTS, CIRCUMSTANCES AND JUDICIAL POSITION, WE UPHOLD THE O RDER OF THE LD. CIT(A), THIS GROUND NO. 4 OF THE REVENUE IS DISMISSED. DEPRECIATION ON PICK AND PLACE MACHINE 12.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AS ALSO THE RELEVANT PROVISIONS AND JUDICI AL CITATIONS. IT IS NOT DISPUTED THAT FACTS AND CIRCUM STANCES ABOUT CLAIM OF DEPRECIATION STANDS DECIDED IN EARLI ER YEARS AS MENTIONED ABOVE. LD. CIT(A) HAS FOLLOWED HIS OWN ORDERS WHICH STAND UPHELD BY ITAT. IN VIEW THEREOF WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) WHICH IS UPHELD IN PRECEDING YEARS. THIS GROUND NO. 6 OF THE REVENUE ABOUT DEPRECIATION OF PICK AND PLACE MACHINE IS DISMISSED. DEDUCTION U/S 80JJAA OF THE ACT ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 12 14.2 WE HAVE HEARD LD. DR AND COUNSEL FOR THE ASSE SSE. IT IS NOT DISPUTED THAT FACTS AND CIRCUMSTANCES ABOUT ALLOWABILITY OF CLAIM OF DEDUCTION U/S 80JJAA STANDS DECIDED IN AY 2007-08 BY ITAT BY FOLLOWING OBSERVATIO NS:- REVENUE GROUND IN AY 2007-08 REMAINING ISSUE IN THE APPEAL OF THE DEPARTMENT IS AGAINST ALLOWING DEDUCT ION UNDER SECTION 80JJAA OF RS. 66,73,927/-. DECISION - 43. AFTER CONSIDERING THE SUBMISSIONS AND PERUSIN G THE MATERIAL ON RECORD, WE FIND THAT AO HAS DISALLO WED THE CLAIM BY OBSERVING THAT SINCE THE CONDITIONS ARE NO T SATISFIED AS THE NUMBER OF WORKERS WHO WERE EMPLOYED IN FINANCIA L YEARS 2004-05 AND 2005-06 ARE NOT AS PER RULES. IT IS FU RTHER SEEN THAT A COPY OF FORM NO. 10DA CERTIFICATE BY THE AUDITORS IS PLACED AT PAGE 791 AND AS PER COLUMN NO. 9 TOTAL ADDITIONAL W AGES PAID IN PREVIOUS YEAR RELEVANT TO ASSESSMENT UNDER CONSIDER ATION IS ASCERTAINED AT RS. 2,22,46,427/-. 30% OF THE SAME I.E. RS. 66,73,927/- HAS BEEN CLAIMED. THIS FIGURE HAS BEEN MENTIONED IN PARA 10 OF THIS REPORT GIVEN IN FORM 10DA. IN P ARA 12, THE AUDITOR HAS CERTIFIED THAT ANNEXURES FOR PREVIOUS YEARS 2004- 05 AND 2005-06 DULY CERTIFIED HAS BEEN FILED ALONG WITH THE INCOME-TAX RETURN FOR ASSESSMENT YEARS 2005-06 AND 06-07 FOR THE NEW REGULAR WORKMEN EMPLOYED IN PREVIOUS YEARS 2004-05 AND 05-06 IN TERMS. IN THIS FORM FILED ALONG WITH THE RETURN, NO DEFECT WHATSOEVER HAS BEEN POINTED OUT BY THE AO. CALCULATION SHEET WAS ALSO ENCLOSED, COPY OF WHICH IS PLACED AT PAGES 792 TO 797 AS MENTIONED ABOVE. THE LD. CIT (A) HAS CATEGO RICALLY MENTIONED IN HIS ORDER THAT TRIBUNAL HAS ALLOWED TH IS ISSUE FOR ASSESSMENT YEAR 2006-07 AND, THEREFORE, IN OUR CONS IDERED VIEW IT WILL BE FUTILE EXERCISE TO RESTORE THE MATTER TO THE FILE OF AO TO EXAMINE THE CONDITIONS ONCE AGAIN. THE AUTHORIZED AUDITORS HAVE CERTIFIED WHO HAS SIGNED FORM NO. 10DA, COPY O F WHICH IS PLACED ON RECORD AT PAGE 791 TO 797 OF THE PAPER BO OK. THEREFORE, IN VIEW OF THE CONSISTENCY AND IN VIEW O F FACTUAL ASPECT EXAMINED BY THE AUDITORS WHICH WAS NOT COMME NTED ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 13 UPON BY THE AO, WE HOLD THAT LD. CIT (A) WAS JUSTIF IED IN ALLOWING THE PART CLAIM OF THE ASSESSEE. IN FACT, FOR ASSESS MENT YEAR 2006-07 DEDUCTION CLAIMED AT RS. 51,00,000/- OR ODD WAS DISALLOWED UNDER SECTION 80JJAA. THE LD. CIT (A) A LLOWED THE DEDUCTION IN PART AND ON SECOND APPEAL, THE TRIBUNA L FOUND THAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2002-03 TO 05-06 SIMILAR DEDUCTION WAS DISALLOWED AND THE TRIBUNAL W HILE DECIDING THE APPEAL FOR ASSESSMENT YEAR 2002-03 IN ITA NO. 259/JP/2006 & 314/JP/2009 AND IN ITA NO. 536/JP/200 8 AND 956/JP/2008 FOR ASSESSMENT YEAR 2004-05 AND 2005-06 HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY CONF IRMING THE ORDER OF LD. CIT (A). SINCE LD. CIT (A) HAS DECIDE D THE ISSUE FOLLOWING THE ORDER OF TRIBUNAL FOR VARIOUS YEARS, THEREFORE, WE SEE NO REASON TO INTERFERE WITH THE FINDING OF LD. CIT (A). ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A) ON THIS ISSUE. FACTS, CIRCUMSTANCES AND ISSUE BEING SIMILAR, FOLLO WING EARLIER ITAT ORDERS IN ASSESSEES OWN CASE THE REVENU E GROUND NO. 8 ABOUT DEDUCTION U/S 80JJAA IS ALSO DISMISSED. 6. IT REMAINS UNDISPUTED BEFORE US THAT THE FACTS F OR THE YEAR UNDER CONSIDERATION ARE NOT DIFFERENT FROM THOSE BEFORE T HE TRIBUNAL FOR A.Y. 2008-09. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) PASSED ON 20/5/2016 IN THE ASSESSEES CASE FOR A.Y. 2008-09, IN ITA NO. 38/JP/2012, THE GRIEVANCE RAISED, RESPECTIV ELY, BY BOTH THE PARTIES BY WAY OF THE RESPECTIVE GROUNDS OF APPEAL I N THEIR RESPECTIVE APPEALS, IS REJECTED. THE FINDINGS OF THE LD. CIT(A) ARE CONFIRMED. ITA 110 & 169/JP/2013_ M/S GENUS POWER INFRASTRUCTURES LTD. VS ITO 14 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE AS WELL AS THE REVENUES APPEAL ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/09/2016. SD/- SD/- FOE FLAG ;KNO , - MH TSU (VIKRAM SINGH YADAV) (A.D. JAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09 TH SEPTEMBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S GENUS POWER INFRASTRUCTURES LTD., JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-7(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 110 & 169/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR