Bhupinder Kaur, Dharampur V. DCIT, Circle, Shimla

ITA 1490/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5138 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 10B; 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHES A, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 1490/CHD/ 2017 ASSESSMENT YEAR: 2014-15 MRS. BHUPINDER KAUR, VS THE DCIT, PROP. M/S P.A. PINIONS, CIRCLE, KASAULI ROAD, DHARAMPUR, SHIMLA. DISTT. SOLAN. PAN : AASPP4053G (A PPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACHIN JAIN RESPONDENT BY : SMT CHANDER KANTA, ADDL. CIT DATE OF HEARING : 07.02.2018 DATE OF PRONOUNCEMENT : 13.03.2018 ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 19.09.2017 OF CIT(A) SHIMLA PERTAINING TO 2014-15 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONFIRMIN G THE DISALLOWANCE OF DEDUCTION U/S 80IC AMOUNTING TO RS.70,88,567/- AND NOT ALLOWING THE DEDUCTION AS CLAIMED BY THE APPELLANT. 2. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS OF APPEALS; THE APPELLANT DISPUTES THE QUANTUM OF DISALLOWANCE OF DEDUCTION U/S 80IC. 2. BOTH THE PARTIES AT THE TIME OF HEARING, ST ATED THAT THE LEGAL ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF M/S STOVE CRAFT & OTHERS DATED 28.11.2017. ACCORDINGL Y, IT WAS A COMMON PRAYER THAT THE ISSUE MAY BE REMANDED TO THE AO WITH A DIRECTION TO GRANT NECESSARY RELIEF IN TERMS OF THE DIRECTION OF THE HONBLE HIGH COURT CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 3. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. WE HAVE SEEN THAT THE ASSESSEE IN THE YEAR UNDER CONSI DERATION CLAIMED 100% DEDUCTION OF ITS ELIGIBLE PROFITS ON ACCOUNT OF SUBSTANTIAL EXPANSIO N HAVING BEEN CARRIED OUT IN 2005-06 ASSESSMENT YEAR. RELYING UPON THE DECISION OF THE I TAT IN THE CASE OF M/S HYCRON LTD., THE AO RESTRICTED IT TO 25%. IT IS SEEN THAT BY V IRTUE OF THE AFORESAID DECISION OF THE HON'BLE HIGH COURT, THE ISSUE IS NO LONGER RES-INTE GRA. ITA 1490/CHD/2017. A.Y. 2014-15 PAGE 2 OF 2 4. IT IS SEEN THAT THE JURISDICTIONAL HIGH COURT IN THE AFORESAID DECISION CONSIDERED THE FACTS OF THE SPECIFIC CASE IN PARA 51 AND CONSIDERI NG THE SAME CAME TO THE FOLLOWING CONCLUSION:- 55. THUS, IN VIEW OF THE ABOVE DISCUSSION, THESE APPEAL S ARE ALLOWED AND ORDERS PASSED BY THE ASSESSMENT OFFICER AS WELL AS THE APP ELLATE AUTHORITY AND THE TRIBUNAL IN THE CASE OF EACH ONE OF THE ASSESSEES, ARE QUASHED AND SET ASIDE, HOLDING AS UNDER: (A) SUCH OF THOSE UNDERTAKINGS OR ENTERPRISES WHICH WER E ESTABLISHED, BECAME OPERATIONAL AND FUNCTIONAL PRIOR TO 07/01/2003 AND HAVE UNDERTAKEN SUBSTANTIAL EXPANSION BETWEEN 07/01/2003 UPTO 01/04 /2012, SHOULD BE ENTITLED TO BENEFIT OF SECTION 80-IC OF THE ACT, FOR THE PER IOD FOR WHICH THEY WERE NOT ENTITLED TO THE BENEFIT OF DEDUCTION UNDER SECTION 80-IB. (B) SUCH OF THOSE UNITS WHICH HAVE COMMENCED PRODUCTION AFTER 07/01/2003 AND CARRIED OUT SUBSTANTIAL EXPANSION PRIOR TO 01/04/20 12, WOULD ALSO BE ENTITLED TO BENEFIT OF DEDUCTION AT DIFFERENT RATES OF PERCE NTAGE STIPULATED UNDER SECTION 80-IC. (C) SUBSTANTIAL EXPANSION CANNOT BE CONFINED TO ONE EXP ANSION. AS LONG AS REQUIREMENT OF SECTION 80-IC (8) (IX) IS MET, THERE CAN BE NUMBER OF MULTIPLE SUBSTANTIAL EXPANSIONS. (D) CORRESPONDINGLY, THERE CAN BE MORE THAN ONE INITIAL ASSESSMENT YEARS. (E) WITHIN THE WINDOW PERIOD OF 07/01/2013 UPTO 01/04/2 012, AN UNDERTAKING OR AN ENTERPRISE CAN BE ENTITLED TO DEDUCTION @100% FOR A PERIOD OF MORE THAN FIVE YEARS. (F) ALL THIS, OF COURSE, IS SUBJECT TO A CAP OF TEN YEARS. [SECTION 80-IC(6)]. (G) UNITS CLAIMING DEDUCTION UNDER SECTION 80-IC SHALL NOT BE ENTITLED TO DEDUCTION UNDER ANY OTHER SECTION, CONTAINED IN CHAPTER VI-A OR SECTION 10A OR 10B OF THE ACT [SECTION 80-IB(5)]. 4.1 ACCORDINGLY, IN VIEW OF THE LEGAL MANDATE OF TH E JURISDICTIONAL HIGH COURT BY ALLOWING APPEAL OF THE ASSESSEE, THE IMPUGNED ORDER IS SET ASIDE DIRECTING THE AO TO GRANT NECESSARY RELIEF IN ACCORDANCE WITH LAW IN THE LIGH T OF THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF M/S STOVE CRAFT & OTHERS (CITE D SUPRA). NEEDLESS TO SAY THAT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE SHALL BE GRANTED BY THE AO BEFORE THE PASSING OF THE ORDER. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03. 2018. SD/- SD/- ( DR.B.R.KUMAR) ( DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.