DCIT (OSD) RG 10(1), MUMBAI V. HITECH PLAST LTD, MUMBAI

ITA 1331/MUM/2013

• Counselvise Citation: 133119914 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 27-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAVED AKHTAR
• Assessee Lawyers: DALPAT SHAH
• Section: 80IB

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - H BENCH. . . , ! , BEFORE S/SH.I.P.BANSAL, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.1331/MUM/2013, ' ' ' ' # # # # / ASSESSMENT YEAR-2009-10 DCIT 10(3), ROOM NO. 451, 4TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 VS. ' HITECH PLAST LTD. C/130, SOLARIS I, OPP. L & T GATE NO.6, SAKI-VIHAR ROAD, MUMBAI-400072 PAN:AAACH5161N ( %& / APPELLANT) ( '(%& / RESPONDENT) ) * / REVENUE BY : SHRI JAVED AKHTAR '+, ) * / ASSESSEE BY : SHRI DALPAT SHAH ' ' ' ' ) )) ) ,- ,- ,- ,- / DATE OF HEARING : 27-08-2014 ./# ) ,- / DATE OF PRONOUNCEMENT : 27-08-2014 ' ' ' ' , 1961 ) )) ) 254 254 254 254( (( (1 11 1) )) ) ,6, ,6, ,6, ,6, 7 7 7 7 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! ' ' ' ' : CHALLENGING THE ORDER DATED 21.11.2012OF THE CIT(A) -21,MUMBAI ASSESSING OFFICER (AO) HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S 80IB WITHOUT DELIBERATING ON THE SATI SFACTION OF THE PERQUISITE CONDITIONS LAID DOWN IN SUB SECTION (13) OF SECTION 80IB R.W. SUB SEC. ( 10) OF SECTION 80IB OF THE I.T. ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) ERRED IN NOT LOOKING & DELIBERATING INTO THE QUANTUM OF DEDUCTION COMPUTED . 3.THE APPELLANT PRAYS THAT THE ORDER OF LD. CIT (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFER BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR LATER ANY GR OUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF MANUFAC TURING OF PLASTIC CONTAINERS,FILED ITS RETURN OF INCOME ON 24.09.2009 DECLARING TOTAL INCO ME OF RS.7,42,64,030/-.AO FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT,ON 29.12.2010,DETE RMINING THE TOTAL INCOME AT RS. 10,12,78,900/-. EFFECTIVE GROUND OF APPEAL PERTAINS TO CLAIM MADE U /S.80IB OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE HAD 5 UNITS AT VARIOUS LOCATIONS, OUT OF WHICH 3 UNITS WERE ELIGIBLE FOR DEDUCTION U/S.80IB,BEING LOCATED AT BA CKWARD INDUSTRIAL AREA,THAT IT HAD CLAIMED DEDUCTION, MOUNTING TO RS. U/S.80IB(4) OF THE ACT. HE REJECTED THE CLAIM OF THE ASSESSEE OBSERVING THAT THE ASSESSEE HAD CLAIMED IN ITS AUDIT REPORT,I N FORM NO.10CCB, DEDUCTION U/S.80IB(3),THAT THE ASSESSEE HAD AGREED TO RECTIFY THE MISTAKE ONLY AFT ER IT WAS POINTED OUT TO IT DURING THE ASSESSMENT PROCEEDINGS. 2.1. AGAINST THE ORDER OF THE AO ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPEAL AUTHORITY 2 ITA NO. 1331/M/2013 HITECH PLAST LTD. (FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSE SSEE AND THE ASSESSMENT ORDER HE HELD THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S.80IB(4),THA T 3 UNITS WERE IN BACKWARD AREA,THAT IN EARLIER YEARS ALSO ASSESSEE CLAIM WAS ACCEPTED AND ALLOWED, THAT DURING THE YEAR IN THE AUDIT REPORT IN FORM NO.10CCB IT HAD MADE ERROR IN CLAIMING THE BEN EFIT BY MENTIONING SEC.80IB(3) INSTEAD OF 80IB(4),THAT THE ASSESSEE HAD RECTIFIED THE MISTAKE AND FILED NEW FORM NO.10CCB.HE REFERRED TO THE CASE OF VAISHNO INTERNATIONAL OF ITAT, NEW DELH I( ITA/3090/ DEL/ 2009-A.Y.2006-07 WHEREIN IT WAS HELD THAT THE LAPSE ON THE PART OF T HE ASSESSEE IS IN RESPECT OF WRONG MENTIONING OF SECTION THAT SHOULD NOT BE CONSTRUED IN SUCH A WAY DEPRIVED AN ASSESSEE FROM THE LEGITIMATE DEDUCTION. 2.2. BEFORE US,DEPARTMENTAL REPRESENTATIVE (DR) ARGUED T HAT THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION,THAT IT HAD REVISED THE AUDIT REPORT,THAT IT OWNED THE MACHINERY WORTH MORE THAN 1 CRORES,IT WAS NOT A SMALL SCALE INDUSTRIES.AUTHORIS ED REPRESENTATIVE(AR) STATED THAT THERE WAS A TYPOGRAPHICAL ERROR IN THE CL.7 OF THE AUDIT REPORT ,THAT WRONG SUB SECTION WAS MENTION IN THE REPORT,THAT THE AO HAD ALLOWED THE DEDUCTION TO THE ASSESSEE UNDER THE SAME SECTION IN THE EARLIER YEARS,THAT MANUFACTURING UNITS WERE FUNCTIONING IN BACKWARD AREAS.HE REFERRED TO THE ASSESSMENT ORDER FOR THE EARLIER YEAR PASSED U/S.143(3)OF THE ACT. 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT OUT OF THE FIVE UNITS THREE UNITS OF THE ASSESSEE WERE LOC ATED IN BACKWARD AREA,THAT IN EARLIER YEAR THE AO HAD ALLOWED THE ASSESSEE DEDUCTION U/S.80IB,THAT HE HAS NOT MENTIONED THE SUB SECTION UNDER WHICH CLAIM MADE BY THE ASSESSEE OR WAS ALLOWED,THA T AS PER THE ADMISSION OF THE ASSESSEE IT IS NOT A SMALL SCALE INDUSTRY,THAT THE AUDIT REPORT OF THE YEAR UNDER APPEAL WAS CORRECTED BY THE ASSESSEE ONLY AFTER THE AO MADE INQUIRES.IN OUR OPI NION,PROVISIONS GOVERNING DEDUCTION/EXEMPTION/REBATE HAVE TO APPLIED,ONCE IT IS PROVED THAT THE ASSESSEE MAKING A CLAIM UNDER A PARTICULAR SECTION HAS FULFILLED ALL THE CO NDITIONS.IT IS THE DUTY OF THE ASSESSEE TO PRODUCE DOCUMENTARY EVIDENCES BEFORE THE AO IN SUPPORT OF I TS CLAIM.ONCE IT FURNISHES THE PROOF,FOR SMALL MISTAKES IT SHOULD NOT BE DEPRIVED OF THE CLAIM THA T IS OTHERWISE GENUINE AND ALLOWABLE.IN THE CASE BEFORE US,IF IN THE EARLIER YEARS ON THE SIMILAR FA CTS THE AO HAD ALLOWED THE DEDUCTION THAN THERE WAS NO JUSTIFICATION FOR DENYING IT IN THE YEAR CON SIDERATION.FROM THE RECORDS IT IS NOT CLEAR THAT WHETHER ANY CLAIM U/S.80IB(4)FOR THE ACT WAS MADE O R NOT OR IF MADE WHETHER IT WAS ELIGIBLE FOR THE SAME OR NOT. THESE FACTS NEEDS FURTHER VERIFICA TION.THEREFORE,IN THE INTEREST OF JUSTICE,WE ARE REMITTING BACK THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION ABOUT ALLOWABILITY OF DEDUCTION U/S.80IB(4)OF THE ACT.HE IS DIRECTED TO A FFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE DECIDING THE ISSUE.EFFECTIVE GROUND OF APPEAL IS ALLOWED IN FAVOUR OF THE AO,IN PART. AS A RESULT, APPEAL FILED BY THE AO S TANDS PARTLY ALLOWED. 8,9 '+, - : ; ) 6 <7 = > ) , ?@ . ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH ,AUGUST 2014 . 7 ) ./# A B' 27 6, , 201 4 / ) 6 C SD/- SD/- . . / I.P. BANSAL) ( ! ! ! ! / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, B' /DATE: 27.08 . 2014. SK 3 ITA NO. 1331/M/2013 HITECH PLAST LTD. 7 7 7 7 ) )) ) ',D ',D ',D ',D E D#, E D#, E D#, E D#, / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / %& 2. RESPONDENT / '(%& 3. THE CONCERNED CIT(A)/ F G , 4. THE CONCERNED CIT / F G 5. DR H BENCH, ITAT, MUMBAI / DH6 ',' , , . . . 6. GUARD FILE/ 6 8 (D, (D, (D, (D, ', ',', ', //TRUE COPY// 7' / BY ORDER, I / ? DY./ASST. REGISTRAR , /ITAT, MUMBAI