Regency Ceramics Limited, Hyd, Hyderabad V. DCIT, Circle-3(1), Hyd, Hyderabad

ITA 1307/HYD/2016

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1641 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 01-02-2021
• Assessment Year: 2001-2002
• Appeal Filed On: 10-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Deemed to accrue or arise in india; Additional evidence; Revised return; Unabsorbed depreciation; Set aside
• Section: 80IA; 64; 13; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 1304/HYD/16 1998 - 1999 REGENCY CERAMICS LIMITED, HYDERABAD [PAN: AABCR0720Q] DY.COMMISSIONER OF INCOME TAX, CIRCLE-3(1), HYDERABAD 1305/HYD/16 1999 - 2000 1306/HYD/16 2000 - 01 1307/HYD/16 2001 - 02 1308/HYD/16 2002 - 03 FOR ASSESSEE : SHRI MOHD. AFZAL, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 01-02-2021 DATE OF PRONOUNCEMENT : 16-02-2021 O R D E R PER BENCH : THESE FIVE ASSESSEES APPEALS ARISE FROM CIT(A)-10, HYDERABADS ORDER, DATED 11-04-2016 FOR AYS.1998-99, 1999- 2000, 2000-01, 2001-02 & 2002-03 PASSED IN APPEAL N OS.152, 155, 154, 151 & 153/CIT(A)-10/2015-16; INVOLVING PROCEEDINGS U/S.143(3) R.W.S.254 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]; RESPECTIVELY. 2. THE ASSESSEE HAS RAISED THE FOLLOWING IDENTICAL SUBSTANTIVE GROUNDS OF APPEAL (EXTRACTED FROM THE LEAD APPEAL ITA NO.1304/HYD/2016): 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS)-10, HYDERABAD DATED 11-04-2016 IS ERRONEOUS, CONTRARY T O LAW AND FACTS OF THE CASE. ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 2 -: 2 THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING THE DEDUCTION CLAIMED U/S.80IB R.W.S.33B BY THE APPELLA NT STATING THAT THE PROVISIONS OF SEC.80IB R.W.S.33B ARE NOT APPLIC ABLE TO THE FACTS OF THE APPELLANT'S CASE AND THEREFORE THE APPELLANT IS NOT ELIGIBLE FOR DEDUCTION U/S.80IB. COMMISSIONER OF INCOME TAX (APP EALS) IS NOT JUSTIFIED IN STATING THAT THE APPELLANT DID NOT PRO DUCE ANY DOCUMENTS/ACCOUNTS EXCEPT FILING A PAPER BOOK. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO NOTE THAT THE SAID P APER BOOK CONTAINS ALL THE INFORMATION SUPPORTING THE CLAIM OF THE APP ELLANT AND THEREFORE NOT JUSTIFIED IN IGNORING SUCH INFORMATION AND DISM ISSING THE APPELLANT'S CLAIM ON THIS ISSUE. THE COMMISSIONER O F INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT THERE WAS TOTAL S TOPPAGE OF PRODUCTION AND THE FACTORY WAS SHUT DOWN DURING THE PERIOD 06-11- 1996 TO 20-12-1996. 3. FOR ALL OF THE ABOVE AND SUCH OTHER GROUNDS AS M AY BE URGED AT THE TIME OF HEARING IT IS MOST RESPECTFULLY PRAYED THAT THIS HON'BLE TRIBUNAL MAY BE PLEASED TO ALLOW THE APPEAL AND SUI TABLE DIRECTIONS BE GIVEN. TO THE ASSESSING OFFICER TO ALLOW THE DED UCTION CLAIMED U/S.80IB R.W.S.33B BY THE APPELLANT IN THE INTEREST OF JUSTICE. 3. MR.MOHARANA AND MR.PANDEY INFORMED US DURING THE COURSE OF HEARING THAT THIS IS SECOND ROUND OF PROCEED INGS BETWEEN THE PARTIES BEFORE THIS TRIBUNAL. CASE FILES S UGGEST THAT ASSESSEE HAS PREFERRED ITS IDENTICAL WRITTEN SUBMISSION S AS FOLLOWS: 1.1 THE ASSESSEE COMPANY IS ENGAGED IN THE MANUFAC TURE AND SALE OF CERAMIC TILES. FOR A.Y 1998-99, THE ASSESSEE FIL ED RETURN OF INCOME ON 30-11-1998 DECLARING NIL INCOME AFTER SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION UNDER NORMAL PROVISIONS OF THE ACT AND DEEMED INCOME OF RS.1,63,35,580/- U/S.115JA OF THE ACT. REPORT IN FORM 10CCAC IN SUPPORT OF CLAIM OF DEDUCTION U/S.80 HHC WAS FILED ALONG WITH RETURN. SUBSEQUENTLY THE ASSESSEE FILED REVISED RETURN ON 01-02-1999 DECLARING NIL INCOME AFTER SET OFF OF BR OUGHT FORWARD UNABSORBED DEPRECIATION UNDER NORMAL PROVISIONS OF THE ACT. BOOK PROFIT WAS ALSO SHOWN.AT NIL AFTER CLAIMING DEDUCTI ON U/S.80IA LW.S 33B OF THE ACT AS PER CLAUSE (V) OF EXPLANATION TO SUB-SECTION.2 OF SEC.115JA OF THE ACT. THE ASSESSEE DID NOT CLAIM DE DUCTION U/S.80HHC WHILE COMPUTING BOOK PROFITS IN THE REVIS ED RETURN SINCE DEDUCTION CLAIMED U/S.80IA R.W.S 33B OF THE ACT WHI LE COMPUTING BOOK PROFIT ITSELF BROUGHT DOWN THE BOOK PROFITS TO NIL. ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 3 -: 1.2. THE JCIT(ASSTS), SPL.RANGE-6, HYDERABAD COMPLE TED ASSESSMENT ON 28-02-2001 U/S.143(3) OF THE ACT DETERMINING BOO K PROFIT AT RS.5,77,42,084/- AND TAXABLE INCOME AT 30% THEREOF AT RS.1,73,22,625/-. WHILE DOING SO, THE ASSESSING OFF ICER (A.O) DID NOT ALLOW DEDUCTION CLAIMED U/S.80IA R.W.S.33B OF THE A CT. HAVING COMPUTED BOOK PROFITS AT RS.5,77,42,084, THE A.O DI D NOT ALLOW DEDUCTION EVEN U/S.80HHC OF THE ACT. 1.3. ON APPEAL, THE C.I.T(A) BY HIS ORDER DATED 11- 03-2002 CONFIRMED BOOK PROFITS ASSESSED U/S.115JA. THE ASSESSEE FILED FURTHER APPEAL BEFORE THE HON'BLE ITAT AND THE ITAT BY ITS COMMON ORDER DATED 21- 09-2007 IN ITA NOS.528 & 737/H/02, 643 & 644/H/03 A ND 883/H/05 FOR THE ASST.YEARS 1998-99 TO 2002-03 REMI TTED (A) THE ISSUE OF DEDUCTION CLAIMED U/S.80IA R.W.S. 33B OF T HE ACT WHILE COMPUTING BOOK PROFIT AND ALSO (B) THE ADDITIONAL G ROUND REGARDING DEDUCTION U/S.80HHC FOR THE ASST.YEAR 1998-99 TO TH E A.O TO EXAMINE AFRESH IN ACCORDANCE WITH LAW. THE HON'BLE TRIBUNAL IN PAGE 28 OF ITS ORDER OBSERVED AS UNDER: 'RESPECTFULLY FOLLOWING THE RATIO OF THE HON'BLE SU PREME COURT IN KAPOORCHAND SHRIMAL(SUPRA) AND IN THE INTEREST OF JUSTICE, WE C ONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE ASSESS ING OFFICER AND ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS COUNT AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO SHALL DECI DE THE SAME AFRESH IN THE LIGHT OF THE OBSERVATIONS HEREINABOVE AND ACCORDING TO LAW, AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, ALL THE AFORESAID GROUNDS INCLUDING THE ADDITIONAL GROUNDS TAKEN BY THE ASSES SEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE.' 2.1. CONSEQUENT TO THE ORDER PASSED BY THE ITAT, TH E DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1), TOOK UP TH E ASSESSMENT AND CALLED UPON THE ASSESSEE TO JUSTIFY ITS CLAIM FOR D EDUCTION U/S.80IA R.W.S 33B. 2.2. THE ASSESSEE, ON 16 12 2008, FILED DETAILED NO TE JUSTIFYING ITS CLAIM FOR DEDUCTION U/S.80IA R.W.S.33B OF THE ACT A LONG WITH PAPER BOOK CONTAINING THE FOLLOWING INFORMATION, WHICH WA S FURNISHED BY THE ASSESSEE BEFORE THE ITAT IN THE COURSE OF HEARI NG OF APPEALS. 1. PRODUCTION PROCESS AND FLOWCHART FOR MANUFACTURE OF TILES (PAPER BOOK PAGE NOS.2 TO 5). 2. COPY OF LICENSE FROM MINISTRY OF INDUSTRIES FOR INCREASE IN PRODUCTION CAPACITY FROM 40,000 MTS TO 1,60,000 MTS . PER ANNUM. (PAPER BOOK PAGE NO.6). 3. MONTH WISE, LINE WISE PRODUCTION DETAILS IN THE FINANCIAL YEARS 1995-96 TO 199798 (PAPER BOOK PAGE NO.7). 4. MONTH WISE SALES OF EXPORTS AND DOMESTIC MARKET IN THE FINANCIAL YEAR 1996-97 (PAPER BOOK PAGE NO.8). ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 4 -: 5. ANNUAL REPORTS FOR THE YEARS 1995-96 TO 1997-98 (PAGE NOS. 9 TO 100). 6. FINANCIAL ASSISTANCE GRANTED FOR MEETING PART OF COST OF EXPANSION BY IDBI, IFCI, ICCI FOR INSTALLATION OF 3RD LINE AN D VARIOUS RELIEFS AND CONCESSIONS GRANTED (PAPER BOOK PAGE NOS.101 TO 123 ). 7. DERAILS OF ADDITIONS TO FIXED ASSETS FOR 3RD LIN E (PAPER BOOK RAGE NOS. 124 TO 146). 8. SECOND INTERIM AND FINAL LOSS ASSESSMENT REPORTS OF UNITED INDIA INSURANCE CO. LTD. ON DAMAGES OF FIXED ASSETS DUE T O CYCLONE ON 6.11.1996 (PAPER BOOK PAGE NOS.147 TO 155). 9. MONTH WISE PRODUCTION AND DISPATCH H DETAILS AS PER RG 1 RECORDS FOR THE YEAR 1996-97 (PAPER BOOK PAGE NOS 156 TO 15 8) 10.FINISHED GOODS VALUATION AND ASSESSMENT OF LOSS MADE BY THE NEW INDIA ASSURANCE COMPANY LIMITED DUE 10 CYCLONE (PAPER BOOK PAGE NOS.159 TO 161). 11.LETTER DATED 30.9.1997 ISSUED BY ASST. COMMISSIO NER, CENTRAL EXCISE FOR DISPOSAL OF DAMAGED FINISHED GOODS DUE T O CYCLONE (PAPER BOOK PAGE NOS.162 TO 163). DEDUCTION U/S.80IA R.W.S 33B OF I.T.ACT FOR THE ASSESSMENT YEARS 1998-99 TO 2002-03: 2.3. ON 6TH NOVEMBER 1996 THE ASSESSEE'S FACTORY WA S HIT BY A MASSIVE CYCLONE WHICH DEVASTATED THE ENTIRE COASTAL AREA OF ANDHRA PRADESH AND YANAM. IN YANAM, THE BUILDINGS AND PLAN T AND MACHINERY IN THE ASSESSEE'S FACTORY WERE DAMAGED EX TENSIVELY. THE ASSESSEE INVITES KIND ATTENTION TO THE SURVEYOR'S R EPORT DATED 9-9- 1997 (PAGES 151 TO 153 OF PAPER BOOK) WHEREIN THE E XTENT OF DAMAGE CAUSED BY THE CYCLONE WAS STATED AS UNDER: 'THE DEVASTATING CYCLONE WHICH STRUCK YANAM ON 6-11 -1996 EVENING AND CONTINUED TILL THE EARLY HOURS OF 7-11-1996 CAUSED EXTENSIVE DAMAGED BUILDINGS, PLANT AND MACHINERY OF THE INSURED'S FACTORY. THE E NTIRE ASBESTOS ROOF SHEETS OF THE MAIN FACTORY BUILDING ADMEASURING 8640 SQUARE MTRS. AND THE ASBESTOS ROOF SHEETS OF ALL THE NONFACTORY BUILDINGS ADMEASURING CUMULATIVE LY 13325 SQUARE MTRS. WERE BLOWN OFF/ BROKEN TO PIECES. THE MACHINERY INSTALLE D IN THE MAIN FACTORY AND AUXILIARY BUILDINGS WERE OPEN TO SKY IN A MATTER OF MINUTES ON THE ONSET OF CYCLONE. THE ENTIRE PLANT AND MACHINERY OF THE FACTORY WERE EXPOSED TO THE FURY OF THE HEAVY AND INCESSANT RAIN THAT FOLLOWED THE CYCLONE. ALL ELECTRICAL MOTORS AND ELECTRICAL EQUIPMENTS WERE SUBMERGED IN FLOOD WATER S. THE FACTORY WAS WORKING AT THE TIME OF THE OCCURRENCE WITH ALL THE THREE KILNS IN OPERATION AND HOT CONDITION. THE HEAVY DOWNPOUR SUDDENLY QUENCHER THE HOT FURNAC E RESULTING IN CRACKING UP OF REFRACTORY, BREAKAGE OF CERAMIC ROLLERS AND DAMAGIN G INSULATION. ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 5 -: THE INSURED TOOK NEARLY A MONTH FOR CLEARING THE DE BRIS, BAILING OUT STAGNANT WATER TO START REPAIR WORK. THE INSURED TOOK UP ROOFING O F THE FACTORY ON A WAR FOOTING BY REPAIRING/REPLACING THE DAMAGED TRUSSES/PURLINS AND REINSTALLING THE AC SHEET ROOFING. SIMULTANEOUSLY WORK ON REPAIRING DAMAGES T O PLANT AND MACHINERY IN RESPECT OF BODY PREPARATION EQUIPMENTS WAS TAKEN UP AND COMPLETED BY THE FIRST WEEK OF DECEMBER 1996. REPAIRS TO ELECTRICAL INSTAL LATION SUCH AS OUTDOOR INSTALLATION, LT & HT PANELS, DRYING/REWINDING OF E LECTRICAL MOTORS, ELECTRICAL WIRING AND FITTINGS WERE TAKEN UP AND COMPLETED BY END MARCH 97. REPAIRS AND REPLACEMENTS TO KILN I COMMENCED ON 12.11.1996 AND COMPLETED BY 20.12.1996. THE FACTORY WAS RESTARTED WITH KILNS LION 20.12.199 6. THE PRODUCTION ON 20.12.1996 WAS 2512 SQ. MTRS. WEIGHING 42.70 MT. RE PAIRS TO KILN I WAS COMPLETED BY 22.12.1996 AND THE KILNS WERE PUT INTO OPERATION. THE PRODUCTION ON KILN I ON 22.12.1996 WAS 2600 SQ. MTRS. WEIGHING 39 MT. PRODUCTION RECORDS SHOW BOTH KILNS ARE OPERATING SATISFACTORILY THEREA FTER. '2.4 HOWEVER, REPAIRS TO KILN III COULD BE TAKEN UP ONLY' BY JANUARY 1997 SINCE CERAMIC ROLLERS AND REFRACTORY HAD TO BE IMPORTED. KILN III WAS PUT INTO OPERATION ON 15.04.1997. 2.5 AS EXPLAINED IN OUR INTERIM SURVEY REPORT DATED JAN 2, 1997, THE OPERATION PROCESS IN THE FACTORY IS ENTIRELY ON AUT OMATIC MODE USING A NUMBER OF PROGRAMMABLE LOGIC CONTROLS (PLC). THESE PLCS ARE MOST VULNERABLE TO DAMAGE BEYOND REPAIR BY ENTRY OF WATE R IN LIVE CONDITION RESULTING IN LOSS OF USER PROGRAM. INSPEC TION OF THE PLCS SUPPLIED BY SIEMENS WAS DONE BY THE SUPPLIER'S SERV ICE ENGINEER IN OUR PRESENCE ON 27.01.1997. THE RESULT OF PHYSICAL INSPECTION AND TESTS CONDUCTED WITH SUPPLIER'S PROGRAMMER SHOWED T OTAL DAMAGE IN 32 COMPONENTS. PLCS OF OMRON SUPPLY WERE TESTED WIT H THE HELP OF THE KIT BY THE INSURED IN OUR PRESENCE. EXCEPT BATC H FEEDING AND PRESS FEEDING CONTROL SYSTEMS AS WELL AS PALLETIZIN G ROBOT CONTROL AND AUTOMATIC SORTING LINE CONTROL ALL OTHER SYSTEMS WE RE PUT INTO SERVICE. THE REMAINDER ARE AWAITING THE ARRIVAL OF MANUFACTU RER'S TECHNICIAN FOR SOFTWARE CORRECTION AND COMMISSIONING.. 2.6 AS COULD BE SEEN FROM THE ABOVE REPORT THAT THE ENTIRE BUILDINGS, PLANT AND MACHINERY, ELECTRICAL EQUIPMENT, MOTORS E TC., IN ASSESSEE'S FACTORY WERE DAMAGED EXTENSIVELY AND THERE WAS COMP LETE STOPPAGE OF PRODUCTION FROM THE DATE OF CYCLONE I.E., 6.11.1 996 TO 20.12.1996 WHEN PRODUCTION WAS RECOMMENCED IN KILN II. KILN I RECOMMENCED PRODUCTION ON 22.12.1996. THERE IS NO PRODUCTION IN KILNS III TILL THE END OF THE YEAR AND RECOMMENCED PRODUCTION ONLY ON 15.04.1997 IN THE NEXT FINANCIAL YEAR. THEREFORE THE ASSESSEE SUB MITS THAT THERE IS COMPLETE STOPPAGE OF PRODUCTION FROM EVENING OF 6.1 1.1996 TO 20.12.1996 I.E., 45 DAYS. 2.7. THE ASSESSEE SUBMITS THAT THE QUANTITATIVE DET AILS OF PRODUCTION FOR THE MONTH OF NOVEMBER AT 50,834 SQ. METERS IS O NLY FOR THE PERIOD OF SIX DAYS I.E., FROM 1.11.1996 TILL EVENING OF 6. 11.1996 IN ALL THE THREE KILNS. FURTHER THE QUANTITY OF PRODUCTION OF 53,669 SQ. METERS ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 6 -: FOR THE MONTH OF DECEMBER 1996 IS THE PRODUCTION AC HIEVED FROM KILN I AND KILN II FROM 20.12.1996 & 22.12.1996 TO 31.12.1 996 AND THERE IS NO PRODUCTION IN KILN III SINCE IT IS RESTARTED ONL Y ON 15.4.1997. 2.8. THE ASSESSEE SUBMITS THAT SURVEYORS OF INSURAN CE COMPANY ASSESSED THE DAMAGES TO THE BUILDINGS, PLANT & MACH INERY AND QUANTIFIED THE TOTAL COST OF REPAIRS FOR RESTRUCTUR ING AT RS.4,39,75,689/-. SIMILARLY, THE STATUTORY AUDITORS ALSO CERTIFIED THAT AN AMOUNT OF RS.254.87 LAKHS AND RS.184.89 LAKHS WA S INCURRED BY THE COMPANY FOR RECONSTRUCTION OF THE PLANT AND MAC HINERY AND BUILDINGS IN SCHEDULE 19 ATTACHED TO THE BALANCE SH EET FOR THE YEAR 1996-97 (PAGE 64 OF PAPER BOOK) AND SCHEDULE 18 ATT ACHED TO THE BALANCE SHEET FOR THE YEAR 1997-98 (PAGE 95 OF PAPE R BOOK) RESPECTIVELY AGAINST THE W.D.V OF FIXED ASSETS OF R S.3608.38 LAKHS AS PER BOOKS AS ON 01.04.19961 WHICH IS EQUIVALENT TO 12.18% OF W.D.V OF ASSETS. IT IS EVIDENT FROM THE ABOVE THAT THE BUILDINGS, PLANT AND MACHINERY OF OUR FACTORY WERE EXTENSIVELY DAMAG ED DUE TO CYCLONE ON 06.11.1996 AND RESULTED IN DISCONTINUANC E OF BUSINESS. 2.9. THE ASSESSEE SUBMITS THAT THE NEW INDIA ASSURA NCE COMPANY LTD., HAS ASSESSED THE LOSS OF DAMAGED FINISHED GOO DS OF TILES LYING IN THE FACTORY AT RS.55,18,136/- VIDE THEIR LETTER DAT ED 31.01.1997. THEREFORE THE ASSESSEE SUBMITS THAT EVEN THE FINISH ED GOODS ARE SUBSTANTIALLY DAMAGED IN THE CYCLONE. THE ASSESSEE ALSO SUBMITS THAT THE ASST. COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, KAKINADA DIVISION IN ITS REPORT DATED 30.09.1997 CE RTIFIED THAT 'DURING THE CYCLONE IN THE NIGHT OF 6TH NOVEMBER, 9 6 A QUANTITY OF 49,385.499 SQ. MTRS OF VARIOUS GRADES OF CERAMIC GL AZED TILES INVOLVING DUTY OF RS.24A8/870.12 WERE DAMAGED AND B ECAME UNFIT FOR MARKETING, IN THE PREMISES OF M/S. REGENCY CERA MICS TTD., YANAM.' AND ASSESSED THE VALUE OF SUCH GOODS AT RS. 40,000/- ONLY AND PERMITTED US FOR USING SUCH DAMAGED GOODS FOR F ILLING THE PONDS AND LAYING THE ROADS WITHIN THE FACTORY. 2.10. THE STATE GOVERNMENT OF PONDICHERRY HAS GRANT ED 50% CONCESSION ON POWER TARIFF VIDE G.O.MS.NO.9 DATED 2 7.02.1997 FOR YANAM REGION FOR THE INDUSTRIAL UNITS AFFECTED DUE TO CYCLONE. FURTHER DEFERMENT OF PAYMENT OF CURRENT CONSUMPTION CHARGES FOR A PERIOD OF ONE YEAR WAS ALSO GRANTED VIDE G.O.MS.NO.15 DATED 3 1.3.1997. PONDICHERRY GOVERNMENT SALES TAX (PGST) REDUCED SAL ES TAX' BY 50% VIDE G.O.MS.NO.2/97/F2 DATED 2.1.1997. CST WAS ALSO REDUCED BY 50% VIDE G.O.MS.NO. 3/97/F2 DATED 2.1.1997. FINANCI AL INSTITUTIONS RESCHEDULED THE LOAN INSTALLMENTS BY EXTENDING ONE MORE YEAR FOR PAYMENT OF INSTALLMENTS AND ALSO FUNDED THE INTERES T. 2.11. THE ASSESSEE SUBMITS HEREUNDER AS TO HOW DEDU CTION U/S.80IA R.W.S 33B OF THE ACT IS ALLOWABLE TO IT. IN THIS RE GARD KIND ATTENTION IS ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 7 -: INVITED TO SUB-SECTIONS (2) OF SECTION 80LA AND 33B OF THE I.T.ACT WHICH READ AS UNDER. '80IA(2) THIS SECTION APPLIES TO ANY INDUSTRIAL UND ERTAKING WHICH FULFILLS ALL THE FOLLOWING CONDITIONS, NAMELY:- (I) IT IS NOT FORMED BY SPLITTING UP, OR THE RECONS TRUCTIONS, OF A BUSINESS ALREADY EXISTENCE; PROVIDED THAT THIS CONDITION SHALL NOT APPLY IN RES PECT OF AN INDUSTRIAL UNDERTAKING WHICH IS FORMED AS A RESULT OF THE RE-E STABLISHMENT, RECONSTRUCTION OR REVIVAL BY THE ASSESSEE OF THE BU SINESS OF ANY SUCH INDUSTRIAL UNDERTAKING AS IS REFERRED TO IN SECTION 33B, IN THE CIRCUMSTANCES AND WITHIN THE PERIOD SPECIFIED IN TH AT SECTION: (II)IT IS NOT FORMED BY THE TRANSFER TO A NEW BUSIN ESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE: (III) IT MANUFACTURES OR PRODUCES ANY ARTICLE OR TH ING, NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE LIST IN THE ELEVE NTH SCHEDULE, OR OPERATES ONE OR MORE COLD STORAGE PLANT OR PLANTS, IN ANY PART OF INDIA: PROVIDED THAT THE CONDITION IN THIS CLAUSE SHALL IN RELATION TO A SMALL SCALE INDUSTRIAL UNDERTAKING OR AN INDUSTRIAL UNDER TAKING REFERRED TO IN SUB-CLAUSE (B) OF CLAUSE (IV) WHICH BEGINS TO MA NUFACTURE OR PRODUCE AN ARTICLE OR THING DURING THE PERIOD BEGIN NING ON THE 1 ST DAY OF APRIL, 1993 AND ENDING ON THE 31ST DAY OF MARCH, 2000, APPLY AS IF THE WORDS 'NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE LIST IN THE ELEVENTH SCHEDULE' HAD BEEN OMITTED: (IV) (A) IN THE CASE OF AN INDUSTRIAL UNDERTAKING N OT SPECIFIED IN SUB- CLAUSE (B) OR SUB CLAUSE (C), IT BEGINS TO MANUFACT URE OR PRODUCE ARTICLES OR THINGS OR TO OPERATE SUCH PLANT OR PLAN TS, AT ANY TIME DURING THE PERIOD BEGINNING ON THE 1 ST DAY OF APRIL, 1991 AND ENDING ON THE 3PT DAY OF MARCH, 1995, OR SUCH FURTHER PERI OD AS THE CENTRAL GOVERNMENT MAY. BY NOTIFICATION IN, THE OFFICIAL GA ZETTE, SPECIFY WITH REFERENCE TO ANY PARTICULAR INDUSTRIAL UNDERTAKING: (B) IN THE CASE OR AN INDUSTRIAL UNDERTAKING LOCATE D IN AN INDUSTRIALLY BACKWARD STATE SPECIFIED IN THE EIGHTH SCHEDULE OR SET UP IN ANY PART OF INDIA FOR THE GENERATION, OR GENERATION AND DIST RIBUTION, OF POWER, IT BEGINS TO MANUFACTURE OR PRODUCE ARTICLES OR THINGS OR TO OPERATE ITS COLD STORAGE PLANT OR PLANTS OR TO GENERATE POWER A T ANY TIME DURING THE PERIOD BEGINNING ON THE 1 ST DAY OF APRIL, 1993 AND ENDING ON THE 31 ST DAY OR MARCH, 2000: PROVIDED THAT IN THE EASE OR AN INDUSTRIAL UNDERTAK ING SET UP IN ANY PART OF INDIA FOR THE GENERATION OR GENERATION AND DISTRIBUTION, OF POWER, THE PERIOD ENDING SHALL HAVE EFFECT AS IF FO R THE FIGURES '1998, THE FIGURES 2003 HAD BEEN SUBSTITUTED: ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 8 -: (C) IN THE CASE OF AN INDUSTRIAL UNDERTAKING LOCATE D IN SUCH INDUSTRIALLY BACKWARD DISTRICT AS THE CENTRAL GOVER NMENT MAY, HAVING REGARD TO THE PRESCRIBED GUIDELINES, BY NOTI FICATION IN THE OFFICIAL GAZETTE, SPECIFY IN THIS BEHALF, AS AN IND USTRIALLY BACKWARD DISTRICT OF CATEGORY A OR AN INDUSTRIALLY BACKWARD DISTRICT OF CATEGORY B, AND, IT BEGINS TO MANUFACTURE OR PRODUCE ARTICLE S OR THINGS OR TO OPERATE ITS COLD STORAGE PLANT OR PLANTS AT ANY TIM E DURING THE PERIOD BEGINNING ON THE 1 ST DAY OF OCTOBER, 1994, AND ENDING ON THE 31ST DAY OF MARCH, 2000. (D) IN THE CASE OF AN INDUSTRIAL UNDERTAKING BEING A SMALL SCALE INDUSTRIAL UNDERTAKING} NOT SPECIFIED IN SUB-CLAUSE (B) OR IN SUB-CLAUSE (C), IT BEGINS TO MANUFACTURE OR PRODUCE ARTICLES O R THINGS OR TO OPERATE ITS COLD STORAGE PLANT AT ANY TIME DURING THE PERIO D BEGINNING ON THE 1ST DAY OF APRIL, 1995 AND ENDING ON THE 31ST DAY O F MARCH, 2000. (V) IN A CASE WHERE THE INDUSTRIAL UNDERTAKING MANU FACTURES OR PRODUCES ARTICLES OR THINGS THE UNDERTAKING EMPLOYE ES TEN OR MORE WORKERS IN A MANUFACTURING PROCESS CARRIED ALL WITH THE AID OF POWER, OR EMPLOYS TWENTY OR MORE WORKERS IN A MANUFACTURIN G PROCESS CARRIED ON WITHOUT THE AID OF POWER. EXPLANATION I. - FOR THE PURPOSES OF CLAUSE (II) OF THIS SUB-SECTION, ANY MACHINERY OR PLANT WHICH WAS USED OUTSIDE INDIA BY ANY PERSON . EXPLANATION 2. - WHERE IN THE CASE OF AN INDUSTRIAL UNDERTAKING} ANY MACHINERY OR PLANT OR ANY PART THEREOF PREVIOUSLY U SED FOR ANY PURPOSE IS TRANSFERRED TO A NEW BUSINESS AND THE TO TAL VALUE OF THE MACHINERY OR PLANT OR PART SO TRANSFERRED DOES NOT EXCEED TWENTY PERCENT OF THE TOTAL VALUE OF THE MACHINERY OR PLAN T USED IN THE BUSINESS, THEN, FOR THE PURPOSES OF CLAUSE (II) OF THIS SUB-SECTION, THE CONDITION SPECIFIED THEREIN SHALL BE DEEMED TO HAVE BEEN COMPLIED WITH.' 2.12. WE ALSO INVITE YOUR KIND ATTENTION TO SECTION 33B OF THE ACT WHICH READS AS UNDER. '33B. WHERE THE BUSINESS OF ANY INDUSTRIAL UNDERTAK ING CARRIED ON IN INDIA IS DISCONTINUED IN ANY PREVIOUS YEAR BY REASO N OF EXTENSIVE DAMAGE TO, OR DESTRUCTION OF, ANY BUILDING, MACHINE RY, PLANT OR FURNITURE OWNED BY THE ASSESSEE AND USED FOR THE PU RPOSES OF SUCH BUSINESS AS A DIRECT RESULT OF - (I) FLOOD, TYPHOON, HURRICANE, CYCLONE, EARTHQUAKE OR OTHER CONVULSION OF NATURE: OR (II) RIOT OR CIVIL DISTURBANCE: OR (III) ACCIDENTAL FIRE OR EXPLOSION: OR ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 9 -: (IV) ACTION BY AN ENEMY OR ACTION TAKEN IN COMBATIN G AN ENEMY (WHETHER WITH OR WITHOUT A DECLARATION OF WAR), AND, THEREAFTER, AT ANY TIME BEFORE THE EXPIRY OF T HREE YEARS FROM THE END OF SUCH PREVIOUS YEAR, THE BUSINESS IS RE-ESTAB LISHED, RECONSTRUCTED OR REVIVED BY THE ASSESSEE, HE SHALL, IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE BUSINESS IS SO RE-ESTABL ISHED, RECONSTRUCTED OR REVIVED, BE ALLOWED A DEDUCTION OF A SUM BY WAY OF REHABILITATION ALLOWANCE EQUIVALENT TO SIXTY PERCEN T OF THE AMOUNT OF THE DEDUCTION ALLOWABLE TO HIM UNDER CLAUSE (III) O F SUB-SECTION (1) OF SECTION 32 IN RESPECT OF THE BUILDING, MACHINERY, P LANT OR FURNITURE SO DAMAGED DESTROYED: CONDITION 1: 2.13. AS COULD BE SEEN FROM SUB-SECTION (2) OF SECT ION 80IA, FOR THE PURPOSE OF CLAIMING DEDUCTION UNDER THIS SECTION, T HE FIRST CONDITION TO BE SATISFIED IS THAT THE INDUSTRIAL UNDERTAKING SHA LL NOT BE FORMED BY SPLITTING UP, OR THE RECONSTRUCTION, OF A BUSINESS ALREADY IN EXISTENCE EXCEPT THE INDUSTRIAL UNDERTAKINGS FORMED BY SPLITT ING UP OR ON RECONSTRUCTION IN THE CIRCUMSTANCES EXPLAINED IN SE CTION 33B OF THE ACT. 2.14. THE ASSESSEE SUBMITS THAT ITS INDUSTRIAL UNDE RTAKING WHICH WAS DAMAGED EXTENSIVELY, STOPPED PRODUCTION RESULTI NG IN DISCONTINUANCE OF BUSINESS DUE TO CYCLONE ON 6.11.1 996 AS ALREADY EXPLAINED IN PRECEDING PARAGRAPHS, WAS RECONSTRUCTE D WITHIN A PERIOD OF ABOUT SIX MONTHS AND SATISFIES THE CONDIT ION LAID DOWN IN CLAUSE (I) OF SUB-SECTION (2) OF SECTION 80IA R.W.S .33B OF I.T ACT. 2.15. THE ASSESSEE FURTHER SUBMITS THAT AS COULD BE SEEN FROM SECTION 33B THERE SHOULD BE EXTENSIVE DAMAGE TO ANY BUILDIN G, MACHINERY OR FURNITURE. AS COULD BE SEEN FROM THE WHOLE PHRASEOL OGY OF THE SECTION, THE WORD 'OR' IS USED AND THEREFORE THE BUILDING MA Y BE DAMAGED OR PLANT AND MACHINERY COULD BE DAMAGED OR FURNITURE C OULD BE DAMAGED. IT IS NOT NECESSARY THAT THE SECTION REQUI RES THAT ALL THESE ASSETS TO BE SIMULTANEOUSLY DAMAGED. THE CONSEQUENC E SHOULD BE THE STOPPAGE OF BUSINESS. IN OUR CASE AS A RESULT O F CYCLONE THE BUILDINGS, PLANT AND MACHINERY, ELECTRICAL EQUIPMEN T, ETC., WERE EXTENSIVELY DAMAGED AND BUSINESS CAME TO A STANDSTI LL. 2.16. THE WORD 'EXTENSIVE' ACCORDING TO CONCISE OXF ORD DICTIONARY MEANS 'LARGE IN AMOUNT OR SCALE'. THE TOTAL AMOUNT OF COMPENSATION PAID BY THE INSURANCE COMPANY DURING THE YEARS 1996 -97 AND 1997- 98 IS RS.311 LAKHS (PAGE 149 OF PAPER BOOK). THE AS SESSEE FURTHER SUBMITS THAT IN THE ABSENCE OF STATUE SPECIFYING AN Y MINIMUM PERCENTAGE OF VALUE OF THE MACHINERY DAMAGED IN COM PARISON WITH THE WRITTEN DOWN VALUE OF THE MACHINERY, THE WORD ' EXTENSIVE' WHICH DOES NOT HAVE ANY LEGAL IMPORT, SHOULD BE GIVEN ITS NORMAL MEANING WHICH MERELY MEANS AS SAID EARLIER 'LARGE IN AMOUNT '. THEREFORE IT IS ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 10 -: SUBMITTED THAT THERE WAS EXTENSIVE DAMAGE TO THE BU ILDINGS, PLANT AND MACHINERY EXTENSIVE WHICH FACT WAS ALSO MADE CL EAR IN THE SURVEYORS REPORT (PAGE 151 TO 153) IN WHICH IT HAS BEEN STATED THAT 'THE DEVASTATING CYCLONE WHICH STRUCK YANAM ON 06.1 1.1996 EVENING AND CONTINUED TILL THE EARLY HOURS OF 07.11.1996 CA USED EXTENSIVE DAMAGE TO BUILDING, PLANT AND MACHINERY OF THE INSU RED'S FACTORY ..... '. 2.17. IN VIEW OF THIS IT IS SUBMITTED THAT THE ASSE SSEE HAS SATISFIED THE CONDITION LAID DOWN IN CLAUSE (I) OF SUB-SECTIO N (2) OF SECTION 80IA R.W.S.33B OF I.T. ACT CONDITION 2 : 2.18. THE SECOND CONDITION IS THAT THE INDUSTRIAL U NDERTAKING SHALL NOT BE FORMED BY THE TRANSFER OF MACHINERY OR PLANT PRE VIOUSLY USED FOR ANY PURPOSE AND FURTHER SUCH VALUE OF PLANT OR MACH INERY TRANSFERRED SHALL NOT EXCEED 20% OF THE TOTAL VALUE OF THE MACH INERY OR PLANT USED IN THE BUSINESS. 2.19. THE ISSUE INVOLVED IN THE ABOVE CONDITION IS TRANSFER OF MACHINERY OR PLANT TO A NEW BUSINESS. IN THE EXPLAN ATION (2), IT IS STATED THAT THE PLANT OR ANY PART THEREOF PREVIOUSL Y USED FOR ANY PURPOSE IS TRANSFERRED TO A NEW BUSINESS AND THE TO TAL VALUE OF THE PLANT AND MACHINERY OR PART THEREOF DOES NOT EXCEED 20% OF THE TOTAL VALUE OF THE PLANT AND MACHINERY USED IN THE BUSINE SS TO FULFILL THE ABOVE CONDITIONS. 2.20. IN OUR CASE THERE IS NO TRANSFER OF PLANT AND MACHINERY PREVIOUSLY USED SINCE THE MACHINERY AND INDUSTRIAL UNDERTAKING REMAINS THE SAME AND THE PREMISES ALSO REMAINS THE SAME. CONDITION 3: 2.21. THIRD CONDITION IS THAT THE INDUSTRIAL UNDERT AKING MANUFACTURES OR PRODUCES ANY ARTICLE OR THING NOT BEING ANY ARTI CLE OR THING SPECIFIED IN ELEVENTH SCHEDULE. IN OUR CASE WE ARE ENGAGED IN THE MANUFACTURE OF CERAMIC FLOOR TILES AND THIS PRODUCT DOES NOT FA LL UNDER ITEMS SPECIFIED IN ELEVENTH SCHEDULE AND HENCE THIS CONDI TION IS SATISFIED. CONDITION 4: 2.22. SINCE OUR INDUSTRIAL UNDERTAKING IS LOCATED I N PONDICHERRY STATE WHICH IS AN INDUSTRIALLY BACKWARD STATE SPECIFIED I N EIGHTH SCHEDULE WE SATISFY THIS CONDITION. CONDITION 5: 2.23. SINCE OUR INDUSTRIAL UNDERTAKING EMPLOYED MOR E THAN 10 WORKERS AND ENGAGED IN MANUFACTURE OF CERAMIC TILES WITH THE AID OF POWER THIS CONDITION IS ALSO SATISFIED. ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 11 -: 2.24. THEREFORE AS EXPLAINED ABOVE THE ASSESSE HAS SATISFIED THE CONDITIONS LAID DOWN IN SEC.80IA (2) R.W.S.33B OF T HE ACT. 2.26. THE ASSESSEE THEREFORE SUBMITS THAT IT IS ENT ITLED TO DEDUCTION U/S. 80-IA/IB R.W.S.33B OF THE ACT ON THE PROFITS D ERIVED BY IT AS IT FULFILLED ALL THE CONDITIONS LAID DOWN IN THE SAID SECTIONS. 2.27. ASSESSMENT YEAR: 1997-98: THE ASSESSEE SUBMIT S THAT THOUGH IT IS ELIGIBLE TO CLAIM DEDUCTION U/S 80LA R.W.S 33 B OF I.T ACT FOR THE ASSESSMENT YEAR 1997-98 IT HAS NOT CLAIMED SUCH DED UCTION SINCE THERE IS NO TAXABLE INCOME UNDER EITHER NORMAL PROV ISIONS OR SPECIAL PROVISIONS OF SEC.115JA OF THE ACT. 2.28. ASSESSMENT YEAR 1998-99: THE ASSESSEE FILED R ETURN OF INCOME ORIGINALLY ON 30.11.1998 DECLARING INCOME UNDER THE NORMAL PROVISIONS OF THE ACT AFTER SET OFF OF UNABSORBED D EPRECIATION AND BOOK PROFIT AT RS.1.63,35,580/- U/S.115JA OF THE AC T. SUBSEQUENTLY A REVISED RETURN WAS FILED ON 01.02.1999 DECLARING N IL INCOME UNDER NORMAL PROVISIONS OF THE ACT. THE ASSESSEE SUBMITS THAT THOUGH IT IS ENTITLED FOR DEDUCTION U/S. 80IA R.W.S.33B OF THE A CT THE SAME COULD NOT BE CLAIMED WHILE COMPUTING NORMAL PROVISIONS OF THE ACT AS THERE WERE NO PROFITS AFTER SET OFF OF BROUGHT FORWARD UN ABSORBED DEPRECIATION. HOWEVER, WHILE COMPUTING BOOK PROFITS U/S. 115JA IT CLAIMED DEDUCTION U/S.80IA R.W.S.33B OF THE ACT AND RETURNED NIL BOOK PROFITS. 2.29. THE ASSESSEE SUBMITS THAT AS PER CLAUSE (V) O F SUB-SECTION (2) OF SECTION 115JA OF THE ACT WHILE COMPUTING THE BOOK P ROFIT, THE AMOUNT OF PROFITS DERIVED BY AN INDUSTRIAL UNDERTAKING AS REFERRED TO IN SUB- CLAUSE (B) OR SUB-CLAUSE (C) OF CLAUSE (IV) OF SUB- SECTION (2) OF SECTION 80IA ARE TO BE REDUCED FROM THE BOOK PROFIT. THEREF ORE WHILE COMPUTING BOOK PROFIT U/S.115JA IT HAS CLAIMED DEDU CTION U/S.80IA R.W.S.33B OF THE ACT. 2.30. THE A.O COMPLETED ASSESSMENT U/S.143(3) R.W.S .254 OF THE ACT ON 26-12-2008 DETERMINING TOTAL INCOME AT RS.5,23,2 1,014 (AS ALREADY DETERMINED IN CONSEQUENTIAL ORDER DATED 08- 01-2003) AND BOOK PROFIT AT RS.5,77,42,084 U/S.115JA. THE A.O DI D NOT ALLOW DEDUCTION U/S.80IA R.W.S.33B. 2.31. ASSESSMENT YEARS 1999-00 TO 2002-03: THE ASSE SSEE FILED RETURNS OF INCOME FOR THESE ASSESSMENT YEARS DECLAR ING INCOMES UNDER NORMAL PROVISIONS AND ALSO UNDER SPECIAL PROV ISIONS OF SECTION 115JA/115JB OF I.T.ACT WHEREVER APPLICABLE AND CLAI MED DEDUCTION U/S 801A/IB R.W.S.33B OF I.T.ACT AS IT IS ELIGIBLE TO CLAIM SUCH DEDUCTION AS STATED ABOVE. HOWEVER, WHILE COMPLETIN G ASSESSMENTS, DEDUCTION U/ /S.80IA R.W.S.33B WAS NOT ALLOWED. ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 12 -: 3.1 AGGRIEVED BY THE ASSESSMENTS, THE ASSESSEE FILE D APPEALS BEFORE THE C.I.T(APPEALS) WHO DISMISSED THE APPEALS. LEARN ED C.I.T(A) HAS NOT APPRECIATED THE FACT THAT THERE WAS COMPLETE ST OPPAGE OF PRODUCTION IN UNITS I AND II FROM 06-11-1996 TO 20/ 22-12-1996 AND UNIT III WAS NOT OPERATIVE TILL 15-04-1997. IN THIS CONNECTION THE ASSESSEE SUBMITS THAT IT HAS OBTAINED A CONFIRMATIO N FROM THE AUTHORITIES OF CUSTOMS AND CENTRAL EXCISE DEPARTMEN T WHO HAVE CATEGORICALLY CERTIFIED THAT M/S.REGENCY CERAMICS L IMITED HAD STOPPED PRODUCTION DURING THE PERIOD 07-11-1996 TO 21-12-1996. THIS CONFIRMATION HAS BEEN SUBMITTED AS ADDL. EVIDENCE B EFORE THE HON'BLE ITAT VIDE ASSESSEE'S PETITION DATED 23-01-2021 PRAY ING FOR ADMISSION OF ADDITIONAL EVIDENCE. ON THE OTHER HAND LEARNED C.I.T(APPEALS) TOOK INTO CONSIDERATION THE DECISION OF THE C.I.T(APPEALS) DATED 11-03-2002 WHICH WAS IN THE FI RST ROUND OF APPEAL LONG BEFORE THE HON'BLE ITAT SET ASIDE THE M ATTER TO THE A.O TO CONSIDER THE ADDITIONAL EVIDENCE SUBMITTED BY THE A SSESSEE. 3.2. THE ASSESSEE PRAYS THAT HON'BLE INCOME TAX APP ELLATE TRIBUNAL TO KINDLY CONSIDER ALL THE ABOVE SUBMISSIONS AND DI RECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION CLAIMED U/S. 80IA/IB R.W.S.33B OF THE ACT FOR THE ASSESSMENT YEARS 1998-99 TO 2002-03. 4. WE NOW ADVERT TO THE SOLE ISSUE RAISED IN ASSESSEE S GROUNDS PERTAINING TO DISALLOWANCE OF SECTION 80-IB D EDUCTION. THE ASSESSEES CASE ALL ALONG APPEARS TO BE THAT THE AL LEGED ELIGIBLE UNIT(S) AT YANAM HAD STOPPED PRODUCTION DURI NG THE PERIOD FROM 7 TH NOVEMBER, 1996 TO 21 ST DECEMBER, 1996. THE FACTUAL POSITION IS NO DIFFERENT IN THE OTHER YEARS AS W ELL AS PIN-POINTED FROM THE DEPARTMENTAL SIDE. WE FIND IN THIS BACKDROP THAT THE TAXPAYER HAS ALSO SOUGHT TO PLACE ON RE CORD A CERTIFICATE COMING FROM THE OFFICE OF THE SUPERINTENDE NT OF CUSTOMS AND CENTRAL EXCISE, YANAM RANGE DT.11-07-2014 REGARDING ITS ABOVE STATED UNIT(S) HAVING STOPPED PRODU CTION BY WAY OF ADDITIONAL EVIDENCE. 5. MR.MOHARANA VEHEMENTLY ARGUED IN FAVOUR OF THE LO WER AUTHORITIES FINDINGS THAT THIS ASSESSEE HAS NOT CO-OPER ATED ALL ALONG FROM ASSESSMENT TILL DATE. THE FACT, HOWEVER, REM AINS ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 13 -: THAT CLINCHING FACT HAS PRIMA-FACIE EMERGED AS PER THE EXCISE AUTHORITIES CERTIFICATE GIVING AN ALTOGETHER A NEW DIR ECTION TO THE CASE . WE THUS DEEM IT APPROPRIATE TO RESTORE THE ASSESSEES IDENTICAL SOLITARY SUBSTANTIVE GRIEVANCE RAISED IN ALL THESE APPEALS BACK TO THE CIT(A) THAN THE ASSESSING OFFICER K EEPING IN MIND THE RELEVANT ASSESSMENT YEAR INVOLVED HEREIN I S 1998- 99 ONWARDS. IT IS MADE CLEAR THAT THE ASSESSEE OR ITS AUTHORISED REPRESENTATIVE SHALL APPEAR BEFORE THE CIT(A ) ON OR BEFORE 31 ST JULY, 2021 ALONG WITH ALL THE RELEVANT EVIDENCE FOR NECESSARY FACTUAL VERIFICATION; AT ITS OWN RISK AND RESPONSIBILITY, TO BE FOLLOWED BY THREE EFFECTIVE OPPO RTUNITIES OF HEARING FAILING WHICH OUR INSTANT REMAND DIRECTIONS SH ALL BE DEEMED TO HAVE BEEN VACATED. 6. THESE FIVE ASSESSEES APPEALS ARE TREATED AS ALLOW ED FOR STATISTICAL PURPOSES IN ABOVE TERMS. A COPY OF THIS CO MMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH FEBRUARY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 16-02-2021 TNMM ITA NOS.1304, 1305, 1306, 1307 & 1308/HYD/2016 :- 14 -: COPY TO : 1.REGENCY CERAMICS LIMITED, IMS HOUSE 3 RD FLOOR, 6-3-1090/A/7, SOMAJIGUDA, HYDERABAD. 2.THE DY.COMMISSIONER OF INCOME TAX, CIRCLE-3(1), HYDERABAD. 3.CIT(APPEALS)-10, HYDERABAD. 4.CIT-3, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.