ITO, WD-6(2), KOLKATA, Kolkata V. M/s Indo Tossa Pvt. Ltd., Kolkata

ITA 1328/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1707 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 29-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANIBRATA DUTTA
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SRI N.V. VASUDEVAN, JUDICIAL MEMBER & SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 1327/KOL/2015 ASSESSMENT YEAR: 2002-03 & I.T.A. NO. 1328/KOL/2015 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER, WARD-6(2), KOLKATA.. .APPELLANT P-7, CHOWRINGHEE SQUARE 6 TH FLOOR KOLKATA- 700 069 M/S. INDO TOSSA PVT. LTD..... ..RESPONDENT 2, NC DUTTA SARANI, 8 TH FLOOR, KOLKATA 700 001 [PAN : AAACI 7851 A] APPEARANCES BY: SHRI RAVI TULSIYAN, FCA, APPEARING ON BEHALF OF THE ASSESSEE. SHRI BANIBRATA DUTTA, ADVOCATE, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 17, 2017 DATE OF PRONOUNCING THE ORDER : AUGUST 17, 2 017 O R D E R PER J. SUDHAKAR REDDY :- BOTH THESE APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)- 6, KOLKATA (HEREINAFTER THE LD. CIT(A)), DT. 22/07/2015 FOR THE ASSESSMENT YEAR 2002-03 & 23/07/2017 FOR THE ASSESSMENT YEAR 2004-0 5, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUNDS OF APPEAL IN BOTH THE CASES ARE SAME , WHICH READ AS FOLLOWS:- 2 I.T.A. NO. 1327/KOL/2015 ASSESSMENT YEAR: 2002-03 & I.T.A. NO. 1328/KOL/2015 ASSESSMENT YEAR: 2004-05 M/S. INDO TOSSA PVT. LTD 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHE THER LD, CIT(A) WAS RIGHT IN REVERSING THE ORDER PASSED BY T HE ASSESSING OFFICER AND HOLDING THAT THE ASSESSEE IS ELIGIBLE F OR DEDUCTION UNDER SECTION 10B OF THE INCOME TAX ACT1961, THOUG H THE ASSESSEE HAD NOT COMPLIED WITH ALL REQUIREMENTS FOR UNVEILING OF THE DEDUCTION UNDER SECTION 10B. 2. THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 3. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT TH E LEARNED FIRST APPELLATE AUTHORITY, HAS FOLLOWED THE DECISION OF T HE TRIBUNAL IN THE ASSESSEES OWN CASE ON THE VERY SAME ISSUE FOR THE ASSESSMENT YEAR 2003-04, IN I.T.A. NO. 414/KOL/07, ORDER DT. 07/09/ 2007, AND GRANTED RELIEF. THE TRIBUNAL AT THE 2.10, AT PAGE 7, HAS HE LD AS FOLLOWS: 2.10.. ON A THOROUGH EXAMINATION OF THE FACTS OF THE CASE, WE FIND THAT THE ARGUMENTS PUT FORWARD BY THE LEARNED COUNS EL FOR THE ASSESSEE HAVE GOT WEIGHT. THE EVIDENCES ON RECORD A LSO SHOW THAT HIS POINTS ARE CORRECT. WE FIND THAT THE ASSESSING OFFICER HAS PROCEEDED TO PICK AND CHOOSE THE PARTS CONTAINED IN THE DEPOSITION WHICH SUITED HIM IN MAKING THE DISALLOWA NCE AND HAS IGNORED PARTS WHICH WERE IN FAVOUR OF' THE ASSESSEE , THE DEPOSITION WHEN READ AS A WHOLE CLEARLY SHOWS THAT THE APPELLANT HAD USED ONLY SMALL SPARES AND STORES IN ITS MANUFA CTURING ACTIVITIES AND HAD NOT UTILISED ANY LARGE MACHINERY WHETHER BELONGING TO IT OR NOT. ALSO, IN VIEW OF THE FACTS AS DISCUSSED ABOVE AND THE DECISIONS AS RELIED UPON BY THE LEARNED COU NSEL FOR THE ASSESSEE AND AS MENTIONED ABOVE, WE ARE OF THE OPIN ION THAT SIMPLY OUTSOURCING A PART OF THE MANUFACTURING OPER ATIONS AND GETTING THEM DONE THROUGH JOB WORKS CANNOT DEPRIVE THE ASSESSEE OF THE BENEFIT U/S 10B OF THE ACT. EVEN OTHERWISE, AS DISCUSSED 3 I.T.A. NO. 1327/KOL/2015 ASSESSMENT YEAR: 2002-03 & I.T.A. NO. 1328/KOL/2015 ASSESSMENT YEAR: 2004-05 M/S. INDO TOSSA PVT. LTD ABOVE, IT CANNOT ALSO BE SAID THAT THERE WAS ACTUAL LY A 'TRANSFER' OF PLANT AND MACHINERY PREVIOUSLY USED FOR ANY PURPOSE TO THE ASSESSEE COMPANY. THE CONTENTION RAISED BY THE LEAR NED CIT(A) THAT THE ASSESSEE COMPANY DOES NOT MANUFACTURE / PR ODUCE ANY ARTICLES OR THINGS, IS ALSO FOUND BE NOT FACTUALLY CORRECT. WE ARE, THEREFORE, OF THE CONSIDERED OPINION THAT THE GROUN DS ON THE BASIS OF WHICH THE LOWER AUTHORITIES HAVE DENIED THE BENE FITS UNDER SECTION 10B OF THE ACT TO THE ASSESSEE COMPANY ARE UNTENABLE. ON THE OTHER HAND, WE FEEL THAT THE FACTS OF THE CASE CLEARLY SUGGEST THAT THE ASSESSEE COMPANY FULFILLS ALL THE CONDITIO NS AS LAID DOWN IN SECTION 10B OF THE ACT AND IS, THUS, ELIGIBLE FO R THE EXEMPTION UNDER THAT SECTION. WE ORDER ACCORDINGLY AND REVERS E THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE. 4. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBU NAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 , WE UPHOLD THE ORDER OF THE LEARNED CIT(A) FOR BOTH THESE ASSE SSMENT YEARS AND DISMISS THE APPEAL OF THE REVENUE. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. KOLKATA, THE 17 TH DAY OF AUGUST, 2017. SD/- SD/- [N.V. VASUDEVAN] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOU NTANT MEMBER DATED : .08.2017 {SC SPS} 4 I.T.A. NO. 1327/KOL/2015 ASSESSMENT YEAR: 2002-03 & I.T.A. NO. 1328/KOL/2015 ASSESSMENT YEAR: 2004-05 M/S. INDO TOSSA PVT. LTD COPY OF THE ORDER FORWARDED TO: 1. INCOME TAX OFFICER, WARD-6(2), KOLKATA P-7, CHOWRINGHEE SQUARE 6 TH FLOOR KOLKATA- 700 069 2. M/S. INDO TOSSA PVT. LTD 2, NC DUTTA SARANI, 8 TH FLOOR, KOLKATA 700 001 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES