DCIT, Jaipur V. M/S TAB INDIA GRANITEDS PVT. LTD., Jaipur

ITA 1415/JPR/2010

• Counselvise Citation: 141523114 RSA 2010
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 15-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 115JB; 10B; 54; 154

Judgement Text

1 ITA 1415-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 1415/JP/2010 ASSTT. YEAR : 2004-05. THE DCIT, CIRCLE-2, VS. M/S. TAB INDIA GRANITES PVT. LTD., JAIPUR. S-205, SECOND FLOOR, SANGAM TOWER CHURCH ROAD, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY KUMAR RESPONDENT BY : SHRI P.C. PARWAL ORDER DATE OF ORDER : 08/07/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2004-05. 2. THE DEPARTMENT IS OBJECTING IN ALLOWING DEDUCTIO N UNDER SECTION 10B AT RS. 3,65,75,325/- AS AGAINST RS. 2,17,18,157/- COMPUTED BY AO UNDER SECTION 115JB WITHIN THE MEANING OF CLAUSE (II) OF EXPLANATION TO SUB SE CTION 115JB. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMP ANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORTING OF GRANITE AND OTHER NA TURAL STONE SLABS AND TILES. THE ASSESSEE FILED THE RETURN OF INCOME AFTER CLAIMING EXEMPTION U/S 10B AT RS. 2,17,18,157/-. THE AO OBSERVED THAT THE ASSESSEE HAD CONSIDERED TH E EXEMPTION UNDER SECTION 10B AT RS. 3,65,75,325/- FOR THE PURPOSE OF COMPUTATION OF THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT, WHEREAS AS PER CORRECT COMPUTATION, THE EXEMPTION UNDER SECTION 10B SHOULD 2 HAVE BEEN TAKEN AT RS. 2,11,71,765/-. ACCORDINGLY, IN HIS ORDER PASSED UNDER SECTION 154 OF THE ACT, THE AO REDUCED THE CLAIM OF EXEMPTION U NDER SECTION 10B WHILE COMPUTING THE BOOK PROFIT. 4. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT ISSUE S QUARELY COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR S 2005-06 AND 2006-07. COPIES OF THE ORDERS WERE FILED. IT WAS FURTHER SUBMITTED THAT I N ANY CASE THIS IS A DEBATABLE ISSUE AND, THEREFORE, THE SAME COULD NOT HAVE BEEN RECTIFIED B Y PASSING ORDER UNDER SECTION 154 IN VIEW OF THE DECISION OF HONBLE APEX COURT IN CASE OF VOLKART BROTHERS, 82 ITR 50 (SC). THE LD. CIT (A) NOTED THAT ISSUE IS SQUARELY COVERE D BY THE DECISION OF TRIBUNAL FOR SUBSEQUENT TWO YEARS. THEREFORE, FOLLOWING THE SAME , THE LD. CIT (A) ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. IT WAS FURTHER OBSERVED BY LD. CIT (A) THAT EVEN AND OTHERWISE ON A DEBATABLE ISSUE THE RECTIFICATION UNDER SECTION 1 54 CANNOT BE MADE. THEREFORE, FOR THIS REASON ALSO THE LD. CIT (A) DIRECTED THE AO TO DELE TE THE IMPUGNED ADJUSTMENT MADE BY HIM. 5. THE LD. D/R PLACED RELIANCE ON THE ORDER OF AO. 6. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). COPIES OF THE ORDERS OF THE TRIBUNAL FOR SUBSEQUENT TWO YEARS WERE ALSO FILED. 7. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A), FIRSTLY, THE ISSUE IS S QUARELY COVERED BY THE DECISION OF TRIBUNAL IN CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEARS 2005-06 AND 2006-07. APPEALS FOR THESE TWO YEARS WERE DECIDED IN ITA NO.1473/JP/2008 FOR A.Y. 2005-06 VIDE ORDER DATED 31.7.2009 AND FOR A.Y. 2006-07 THE APPEAL WAS DECID ED IN ITA NO. 961/JP/2009 VIDE 3 ORDER DATED 30.4.2010. THE FACTS ARE IDENTICAL, TH EREFORE, THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION FOLLOWING THE ORDERS OF THE T RIBUNAL. EVEN AND OTHERWISE, THE ISSUE IS HIGHLY DEBATABLE, THEREFORE, NO ADJUSTMENT CAN B E MADE UNDER SECTION 154. THEREFORE, ON THIS ACCOUNT ALSO WE HOLD THAT LD. CIT (A) WAS J USTIFIED IN DIRECTING TO DELETE THE ADJUSTMENTS. ACCORDINGLY WE CONFIRM THE ORDER OF LD . CIT (A). 8. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMI SSED. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08- 07-2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- THE DCIT, CIRCLE-2, JAIPUR. M/S. TAB INDIA GRANITES PVT. LTD., JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 1415/JP/2010.) BY ORDER, AR ITAT JAIPUR.