DCIT 3(2), MUMBAI V. PARKAR MARKWEL INDUSTREIS P. LTD, MUMBAI

ITA 134/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3318 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-06-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Keywords: Rule of consistency
• Section: 10B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL C CC C BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , ! ! ! ! ' ' ' ' , . BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI SANJAY ARORA SANJAY ARORA SANJAY ARORA SANJAY ARORA, AM , AM , AM , AM & && & SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ./ I.T.A I.T.A I.T.A I.T.A. NO. . NO. . NO. . NO. 132, 133 & 134/MUM/2012 132, 133 & 134/MUM/2012 132, 133 & 134/MUM/2012 132, 133 & 134/MUM/2012 ( #$ #$ #$ #$ % % % % / ASSESSMENT YEAR: 2005-06) ( #$ #$ #$ #$ % % % % / ASSESSMENT YEAR: 2007-08) & ( #$ #$ #$ #$ % % % % / ASSESSMENT YEAR: 2008-09) DY. COMMISSIONER OF INCOME-TAX, 3(2), ROOM NO. 608, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 $ $ $ $ / VS. M/S PARKER MARKWEL INDUSTRIES P. LTD., PLOT NO. EL-26, MIDC TTC, INDUSTRIAL AREA, MAHAPE, NAVI MUMBAI-400709 & ./ ' ./ PAN/GIR NO. :AAACM9967D ( &( / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( )*&( / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) &( &( &( &( + + + + / APPELLANT BY : SHRI A. C. TEJPAL )*&( )*&( )*&( )*&( , ,, , + + + + /RESPONDENT BY : SHRI RAHUL K. HALKANI $ $ $ $ , ,, , - - - - / DT. OF HEARING : 26 TH JUNE 2013 .% .% .% .% , ,, ,- - - - / DT.OFPRONOUNCEMENT: 3 RD JULY 2013 / / O R D E R PER BENCH: THESE THREE APPEALS BY THE REVENUE ARE DIRECTED AG AINST THE THREE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX(APPEA LS) FOR THE ASSESSMENT YEARS 2005-06, 2007-08 & 2008-09 RESPECT IVELY. 2. THE REVENUE HAS RAISED THE SOLITARY COMMON GROUN D IN THESE APPEALS ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN HO LDING THAT THE NEW INDUSTRIAL UNDERTAKING HAD BEEN ESTABLISHED BY THE COMPANY ITA NO.132, 133 & 134/M/2012 M/S PARKER MARKWEL INDUSTRIES P. LTD. . 2 WITHOUT APPRECIATING THAT THE UNIT IN RESPECT OF WH ICH DEDUCTION U/S 10B HAS BEEN CLAIMED HAS COME UP BY PARTIAL CON VERSION OF THE EXISTING UNIT WHERE ASSETS OF THE OLD UNIT INCL UDING BUILDING, PLANT AND MACHINERY HAD BEEN TRANSFERRED TO THE NEW UNIT, MANUFACTURED PRODUCT OF EXISTING UNIT AND HAS NOT M ADE 100% EXPORT OF ITS PRODUCT. 3. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS CLAIM ED DEDUCTION U/S 10B OF THE INCOME TAX ACT, IN RESPECT OF 100% EXPORT OR IENTED UNIT (EOU). THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER ON THE REASON THAT AN IDENTICAL CLAIM HAS ALREADY BEEN REJECTED F OR THE ASSESSMENT YEAR 2004-05. ON APPEAL THE COMMISSIONER OF INCOME TAX(A PPEALS) HAS ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THA T FOR THE ASSESSMENT YEAR 2004-05, THE CLAIM OF THE ASSESSEE WAS ALLOWED . 4. WE FURTHER NOTE THAT FOR THE ASSESSMENT YEAR 200 4-05 AND 2006-07, THIS TRIBUNAL VIDE ORDER DATED 12.10.2012 IN ITA NO . 2637 & 2638/M/2009 HAS CONSIDERED AND DEALT WITH THIS ISSUE IN PARA 4 & 5 AS UNDER: 4. CONSIDERING THE ABOVE FACTS THAT THE ORDERS OF AUTHORITIES BELOW ARE NOT SELF-CONTAINED AND ALSO THE FACT THAT THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2004-05 IS NOT CORRECTLY PASSED IN THE NAME OF THE ASSESSEE COMPANY, IT WAS SUBMITTED BY L D. REPRESENTATIVES OF BOTH PARTIES THAT ORDERS OF AUTH ORITIES BELOW BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF ASSESSING OFFICER TO PASS FRESH ASSESSMENT ORDER IN THE NAME OF THE PRESENT ASSESSEE AND ALSO CONSIDERING SUCH EVIDENCES AS MAY BE FURNISHED BY A SPEAKING ORDER. SINCE THE AUTHORITIE S BELOW, FOR ASSESSMENT YEAR 2006-07, HAVE FOLLOWED THE ORDER FO R ASSESSMENT YEAR 2004-05, IT WAS SUBMITTED BY LD. REPRESENTATIV ES OF PARTIES THAT THE ISSUE INVOLVED FOR ASSESSMENT YEAR 2006-07 MAY ALSO BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR PASSI NG FRESH ASSESSMENT ORDER AS PER LAW. 5. IN VIEW OF ABOVE, WE SET ASIDE THE ORDERS OF AU THORITIES BELOW FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION A ND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION TO PASS ITA NO.132, 133 & 134/M/2012 M/S PARKER MARKWEL INDUSTRIES P. LTD. . 3 FRESH ASSESSMENT ORDERS AFTER GIVING DUE OPPORTUNIT Y OF HEARING TO THE ASSESSEE AND ALSO CONSIDERING SUCH EVIDENCES AS MAY BE PLACED BEFORE HIM AS PER LAW. 5. SINCE THE AUTHORITIES BELOW HAVE DECIDED THE ISS UE OF DEDUCTION U/S 10B ON THE BASIS OF RESPECTIVE ORDERS FOR THE ASSES SMENT YEAR 2004-05, WHICH HAS BEEN SET ASIDE BY THIS TRIBUNAL TO THE FI LE OF THE AO WITH THE DIRECTIONS TO PASS FRESH ASSESSMENT AFTER GIVING DU E OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY TO MAINTAIN TH E RULE OF CONSISTENCY, WE SET ASIDE THIS ISSUE IN ALL THREE APPEALS OF THE REVENUE TO THE RECORD OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH IN THE TERMS AS DIRECTED BY THE TRIBUNAL FOR THE ASSESSMENT YEARS 2004-05 & 2006-07. 6. IN THE RESULT, THE APPEALS OF THE REVENUE ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 3 RD JULY 2013 SD/- SD/- ( ) ( SANJAY ARORA ) ACCOUNTANT MEMBER ( ' ) # (VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 3 RD JULY 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER