ITO, New Delhi V. M/s. Om Shree Gita Industries, New Delhi

ITA 1309/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6470 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: SHAILASH JASORIA

Judgement Text

ITA NO. 1309/DEL/2013 OM SHREE GITA INDUSTRIES 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: 'E': NEW DELHI BEFORE SMT DIVA SINGH , JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER ITA NO. 1309DEL/2013 ASSESSMENT YEAR: 2009-10 ITO WARD 33(1) NEW DELHI (APPELLANT) V/S M/S OM SHREE GITA INDUSTRIES DELHI (RESPONDENT) APPELLANT BY SH P DAM KANUNJNA SR DR RESPONDENT BY SH SHAILASH JASORIA, CA DATE OF HEARING 09/03/2016 DATE OF PRONOUNCEMENT 11.03.2016 ORDER PER O.P. KANT, A.M.: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST ORDE R DATED 17/12/2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVI, NEW DELH I FOR ASSESSMENT YEAR 2009-10 RAISING FOLLOWING GROUNDS OF APPEAL: 1.'THE CIT APPEAL HAS ERRED IN DELETING DISALLOWANC E OF RS. 66, 10, 095/- UNDER SECTION 80 IC OF THE INCOME TAX ACT DESPITE T HE FACT THAT THE ASSESSEE WAS ENGAGED IN MANUFACTURING OF PLASTIC PRODUCTS WH ICH IS COVERED IN NEGATIVE LIST OF 13 SCHEDULE' 2.' THE CIT APPEAL HAS ERRED IN DELETING THE DISALL OWANCE BY HOLDING THAT ITA NO. 1309/DEL/2013 OM SHREE GITA INDUSTRIES 2 THE ASSESSEE HAS BEEN GRANTED EXEMPTION UNDER THE E XCISE ACT AND THEREFORE NO DISALLOWANCE CAN BE MADE UNDER THE PROVISIONS OF THE INCOME TAX ACT WITHOUT ANY BASIS.' 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE, A PART NERSHIP FIRM, WAS ENGAGED IN MANUFACTURING OF PET BOTTLES, CAP JARS ETC FROM ITS FACTORY LOCATED IN THE STATE OF HIMACHAL PRADESH. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 22/09/2009 DECLARING NIL INCOME AF TER CLAIMING DEDUCTION OF RS. 66, 10, 094/- UNDER SECTION 80 IC OF THE INCOME-TAX ACT ( IN SHORT THE ACT). THE ASSESSEE ALSO FILED AUDIT REPORT IN FORM NO. 10CCB OF INCOME-TAX RULES IN SUPPORT OF ITS CLAIM UNDER SECTION 80 IC OF THE ACT. IN THE COURSE OF SCRUTINY PROCEEDINGS, THE ASSESSING OFFICER HELD THAT THE PRODUCTS MANUFA CTURED BY THE COMPANY FALLS UNDER THE CATEGORY OF PLASTICS AND ARTICLES THEREO F, WHICH ARE COVERED IN ITEM NO. 20 OF THE THIRTEENTH SCHEDULE, WHICH IS AN ITEM OF NEGATIVE LIST ON WHICH DEDUCTION UNDER SECTION 80 IC OF THE ACT WAS NOT ADMISSIBLE U NDER THE ACT. WHEREAS, THE ASSESSEE CONTESTED THAT THE ITEM PET BOTTLES ETC MA NUFACTURED BY THE ASSESSEE FIRM WAS COVERED IN ITEM NO. 3923 IN EXCISE TARIFF MANUA L AND THEREFORE SAME WERE NOT UNDER THE NEGATIVE LIST FOR THE PURPOSE OF DEDUCTIO N UNDER SECTION 80 IC OF THE ACT. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HELD THAT THE ASSESSEE DID NOT FULFILL THE CONDITION AS DOWN UNDER SECTION 80 IC (2) (A) OF THE ACT AND THUS DEDUCTION UNDER SECTION 80IC AMOUNTING TO RS. 66, 10, 094/-WAS DISALLOWED. THE LD. CIT OF (APPEAL), AFTER CONSIDER ING THE SUBMISSION OF THE ASSESSEE THAT THE CENTRAL EXCISE DEPARTMENT ALSO GR ANTED EXEMPTION HOLDING THAT THE PRODUCT OF THE ASSESSEE WAS NOT FALLING UNDER THE N EGATIVE LIST OF ARTICLES, DELETED THE DISALLOWANCE OF DEDUCTION MADE UNDER SECTION 80 IC OF THE ACT. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. IN BOTH THE GROUNDS RAISED BY THE REVENUE, THE S OLE ISSUE INVOLVED IS OF DELETING DISALLOWANCE OF DEDUCTION OF RS. 66, 10, 0 95 CLAIMED UNDER SECTION 80IC OF THE ACT. 4. BEFORE US, AT THE OUTSET, THE LD. AUTHORISED REP RESENTATIVE OF THE ASSESSEE SUBMITTED THAT IN ANOTHER SISTER CONCERN OF THE ASS ESSEE, THE IDENTICAL ISSUE HAS BEEN ALLOWED BY THE TRIBUNAL, DELHI, A BENCH IN ACCORDAN CE WITH THE JUDGEMENT OF THE ITA NO. 1309/DEL/2013 OM SHREE GITA INDUSTRIES 3 HON'BLE DELHI HIGH COURT IN WRIT PETITION NO. 1987/ 2012 AND OTHERS. HE FURTHER SUBMITTED THAT THE SUBSEQUENT APPEAL OF THE DEPARTM ENT WAS ALSO DISMISSED BY THE HONBLE HIGH COURT IN APPEAL NUMBER ITA 514/2014 . THE LD. AUTHORISED REPRESENTATIVE FILED A COPY OF THE DECISION OF THE TRIBUNAL IN THE CASE OF SH. AJAI KUMAR SHARMA IN ITA NO. 1310/DEL/2013 FOR ASSESSMEN T YEAR 2009-10 ALONGWITH THE COPY OF THE ORDERS OF THE HONBLE HIGH COURT AN D A COPY OF WHICH WAS ALSO PROVIDED TO THE SENIOR DEPARTMENTAL REPRESENTATIVE, WHO FAIRLY ACCEPTED THAT THE ISSUE IN DISPUTE WAS COVERED IN FAVOUR OF THE ASSES SEE BY THE ABOVE DECISION OF THE TRIBUNAL AND THE JUDGEMENT OF THE HIGH COURT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE ORDER OF THE TRIBUNAL THAT THE ASSESS EE IN THAT CASE WAS ALSO ENGAGED IN PRODUCTION OF ITEMS IDENTICAL TO THE PRESENT AS SESSEE. FURTHER, WE FIND THAT GROUNDS IDENTICAL TO THE ASSESSEE WERE RAISED BY TH E REVENUE IN THE APPEAL IN THE CASE OF SH. AJAI KUMAR SHARMA IN ITA NO. 1310/DEL/2 013. THE TRIBUNAL IN PARA 7 OF ITS ORDER HAS GIVEN FINDING IS AS UNDER: '7. SINCE THE ISSUE RAISED IN THE GROUND IS FULLY C OVERED BY THE ABOVE CITED JUDGEMENT OF THE HON'BLE DELHI HIGH COURT IN THE C ASE OF THE PRESENT ASSESSEE ITSELF, WE ARE NOT INCLINED TO ENTERTAIN THE REQUEST OF THE LD. DR TO DIRECT THE ASSESSEE TO FILE THE EXCISE RECOR DS OR INTERFERE WITH THE FINDINGS OF THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) ON THE ISSUE. THE SAME IS UPHELD. THE GROUNDS ARE ACCORDINGLY REJ ECTED.' 6. WE FURTHER FIND THAT THE HONBLE HIGH COURT IN T HE CASE OF SH AJAI KUMAR SHARMA ( SUPRA) HAS DECIDED THE ISSUE AS UNDER : THE ISSUE RAISED IS WHETHER THE RESPONDENT ASSESSE E WAS ENTITLED TO BENEFIT UNDER SECTION 80 IC OF THE INCOME TAX ACT, 1961 AS THE RESPONDENT ASSESSEE WAS MANUFACTURING PET BOTTLES , CAPS, JARS ETC. THE CONTENTION OF THE REVENUE WAS THAT THE AFORESAID ARTICLES FALL IN THE NEGATIVE LIST MENTIONED IN THE 13 TH SCHEDULE OF THE ACT AND COVERED BY NT NO. 20 WHICH REFERS TO PLASTICS AND ARTICLES THEREOF, COVERED UNDER SUB CL AUSES 39.09 TO 39.15 OF THE NATIONAL INDUSTRIAL CLASSIFICATION, 1988. ITA NO. 1309/DEL/2013 OM SHREE GITA INDUSTRIES 4 THE AFORESAID ISSUE WAS CONSIDERED BY THE HIGH COUR T IN THE CASE OF THE RESPONDENT ASSESSEE IN W.P.(C) 1987/2012 AND OTHERS CONNECTED MATTERS DECIDED ON 18 TH FEBRUARY, 2013, WHEREIN IT WAS HELD THAT THE AFORE SAID ARTICLES MANUFACTURED BY THE RESPONDENT ASSESSEE DO NOT FALL WITHIN THE ADDING 39.09 TO 39.15 OF NATIONAL INDUSTRIAL CLASSI FICATION, 1988 BUT FALL WITHIN THE HEADING 39.23. THE AFORESAID FINDING RECORDED WITH BY THIS HIGH CO URT HAS BEEN FOLLOWED BY THE TRIBUNAL IN THE IMPUGNED ORDER. THE APPEAL THER EFORE DOES NOT HAVE ANY MERIT AND DESERVES TO BE DISMISSED. ORDERED ACCORDI NGLY. 7. THUS IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, WE FIND THAT ISSUE IN DISPUTE IS COVERED BY THE DECISION OF THE HONBLE HIGH COUR T AND THE TRIBUNAL IN THE CASE OF SH. AJAI KUMAR SHARMA (SUPRA) IN FAVOUR OF THE A SSESSEE, THUS RESPECTFULLY FOLLOWING THE FINDINGS OF THE HONBLE HIGH COURT AN D THE TRIBUNAL IN THE CASE OF SH. AJAI KUMAR SHARMA(SUPRA), WE, THEREFORE , ACCO RDINGLY, DISMISS THE GROUNDS OF THE REVENUE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 1 1 TH MARCH, 2016. SD/ SD/- (DIVA SINGH) ( OP KANT) JUDICIAL MEMBER ACCOU NTANT MEMBER DATED: 11 TH MARCH, 2016. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI ITA NO. 1309/DEL/2013 OM SHREE GITA INDUSTRIES 5 SL. NO. PARTICULARS DATE 1. DATE OF DICTATION (DRAGON ) 09.03.2016 2. DATE ON WHICH THE DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.03.2016 3. DRAFT PLACED BEFORE THE OTHER MEMBER 4. APPROVED DRAFT COMES TO THE SR. PS/PS 5. KEPT FOR PRONOUNCEMENT ON 6. FINAL ORDER RECEIVED AFTER PRONOUNCEMENT 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILES GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR 10. DATE OF DISPATCH OF ORDER