Appeal details
Counselvise Citation
164120514 RSA 2009
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 7 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
21-12-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
22-11-2011
Assessment Year
2006-2007
Appeal Filed On
20-05-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 1641/ AHD/2009 (ASSESSMENT YEAR 2006-07) ITO, VAPI WARD 4, DAMAN VS. M/S. AJANTA PACKAGING OIDC, PLOT NO.C-5, MAHATMA GANDHI UDHYOG NAGAR, DABHEL, DAMAN PAN/GIR NO. : AAFFA8512L (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI ALOOK JOHRI CIT DR RESPONDENT BY: SHRI TUSHAR P HEMANI, AR DATE OF HEARING: 22.11.2011 DATE OF PRONOUNCEMENT: 21.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) VALSAD DATED 26.02.2009 FOR THE ASSESSMENT YEAR 200 6-07. 2. GROUND NO. 1 OF THE REVENUES APPEAL IS AS UNDER : L. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) HAS ERRED IN DELETING THE DISALLOWA NCE MADE OF RS.2,65,12,176/-MADE ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80IB OF THE ACT. BY DENYING THE DEDUCTION U/S. 80IB OF THE I.T.ACT. 3. BRIEF FACTS TILL THE ASSESSMENT STAGE ON THIS IS SUE ARE NOTED BY LD. CIT(A) IN PARA 5-5.2 OF HIS ORDER WHICH ARE REPRODU CED BELOW: 5. IN GROUND NO. 1 TO 3 THE APPELLANT HAS RAISED I TS CONTENTION THAT THE ASSESSING OFFICER HAS ERRED IN NOT ALLOWIN G DEDUCTION U/S. I.T.A.NO. 1641 /AHD/2009 2 801B ON THE GROUND THAT THE APPELLANT HAS FILED ITS RETURN OF INCOME AFTER THE TIME LIMIT SPECIFIED U/S. 139(1) OF THE A CT. 5.1 I HAVE PERUSED THE FACTS OF THE CASE. THE APPEL LANT HAS FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON ON 20.12.2006 WHICH ACCORDING TO THE ASSESSING OFFICER IS AFTER D UE DATE SPECIFIED U/S. 139(1). DURING THE COURSE OF ASSESSMENT PROCEE DINGS THE APPELLANT WAS ASKED TO SHOW CAUSE AS TO WHY DEDUCTI ON U/S. 801B SHOULD NOT BE DISALLOWED AS THE APPELLANT HAS FAILE D TO FILE ITS RETURN OF INCOME ON OR BEFORE DUE DATE. THE APPELLANT PROD UCED BEFORE THE ASSESSING OFFICER COPY OF CBDT ORDER U/S. 119 DATED I 3.10.2006 EXTENDING THE TIME LIMIT OF FILING OF RETURN OF INC OME UP TO 31,12.2006 IN THE CASE OF INCOME TAX ASSESSEE IN TH E STATE OF GUJARAT. THE APPELLANT SUBMITTED BEFORE THE ASSESSI NG OFFICER THAT THEY ARE ASSESSED BY INCOME TAX OFFICER VAPI WARD-4 . VAPI UNDER THE JURISDICTION OF OFFICE OF CIT VALSAD AND BOTH VAPI AND VALSAD THE CONTROLLING OFFICES ARE SITUATED IN THE STATE OF GU JARAT. THE APPELLANT ALSO SUBMITTED BEFORE THE ASSESSING OFFIC ER THAT THE CBDT IN EXERCISE OF THE POWERS CONFERRED BY SECTION 119(1) AND (2)(A) OF THE ACT VIDE ITS ORDER NO. 1 13/38/2006-T PL(PT.) DATED 24.10.2006 EXTENDED THE DUE DATE FOR FILING THE RET URN OF INCOME FOR CORPORATE ASSESSEE FROM 31.10.2006 TO 30.11.200 6 BY CATEGORICALLY EXCLUDING COMPANIES ASSESSED OR ASSES SABLE IN THE STATE OF GUJARAT AS THEY WERE ALREADY COVERED BY TH E EARLIER ORDER DATED 13.10.2006. THUS IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT A COMBINED READING OF BOTH THE CBDT OR DERS MAKES IT CLEAR THAT THE WORD INCOME TAX ASSESSEE WOULD MEAN INCOME TAX ASSESSEE ASSESSED OR ASSESSABLE IN THE STATE OF GUJ ARAT. 5.2 THE ASSESSING OFFICER SEEMS TO HAVE NOT A CCEPTED THE CONTENTION OF THE APPELLANT. THE OBSERVATION OF THE ASSESSING OFFICER IS REPRODUCED FROM THE ASSESSMENT ORDER AS UNDER- THE ASSESSEE 'S SUBMISSION IS PERUSED AND IS NOT T ENABLE AS THE CIRCULAR QUOTED IS PERUSED CAREFULLY AND THERE IS NO MENTION OF EXTENSION OF FILING OF RETURN FOR THE AS SESSES OF DAMAN THE EXTENSION OF FILING RETURN OF INCOME IS A PPLICABLE TO THE ASSESSEE FROM GUJARAT ONLY. DAMAN A UNION TE RRITORY IS A SEPARATE ENTITY AND INCOME TAX OFFICE IS SITUA TED AT DAMAN AND FACTORY OF THE ASSESSEE HAS ALSO BEEN SET UP IN DAMAN ITSELF. THE ' BOARD HAS NOT EXTENDED DUE DALE IN DAMAN. ' I.T.A.NO. 1641 /AHD/2009 3 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) WHO HAS HELD THAT IN HIS OPINION, THE AS SESSEE CAN BE CONSIDERED AS INCOME TAX ASSESSEE IN THE STATE OF G UJARAT AND, THEREFORE, BOARDS CIRCULAR DATED 13.10.2006 EXTENDING THE DUE DATE FOR FILING OF RETURN OF INCOME UP TO 31.12.206 IN CASE OF INCOME TAX ASSESSEE IN THE STATE OF GUJARAT IS BINDING ON THE A.O. AND, THEREF ORE, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80-IB. NOW, THE REVENUE IS IN APPEAL BEFORE US. 5. IT WAS THE SUBMISSION BY THE LD. D.R. OF THE REV ENUE THAT THE ASSESSEE IS BASED IN DAMAN AND NOT IN GUJARAT AND H ENCE, THE BOARDS CIRCULAR EXTENDING THE DATE OF FILING OF RETURN OF INCOME UP TO 31.12.2006 IS NOT APPLICABLE IN THE PRESENT CASE. IT IS ALSO SUBMITTED BY HIM THAT THE CADRE CONTROLLING AUTHORITY IS FOR INTERNAL CONTROL OF THE DEPARTMENT AND NOT TO BE USED BY THE ASSESSEE FOR THE PURPOSE OF D ECIDING AS TO WHETHER THE ASSESSEE IS BEING ASSESSED IN THE STATE OF GUJA RAT OR NOT. IT IS ALSO SUBMITTED THAT BOARDS CIRCULAR IS FOR THE STATE OF GUJARAT AND NOT FOR CADRE CONTROLLING AUTHORITY, AHMEDABAD. 6. AS AGAINST THIS, IT IS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASS ESSEE BY THE TRIBUNAL DECISION RENDERED IN THE CASE OF ITO VS PACKWELL PA CKAGING IN I.T.A.NO. 1634/AHD/2009 DATED 21.01.2011. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD. A.R. BEFORE DEA LING WITH THE VARIOUS OBJECTIONS BY THE LD. D.R., WE FEEL IT PROPER THAT WE SHOULD FIRST DECIDE APPLICABILITY OF THE TRIBUNAL DECISION CITED BY THE ASSESSEE. WE FIND THAT IN THAT CASE ALSO, ASSESSEE WAS ASSESSED BY THE ITO WAPI WARD 4, DAMAN AS IN THE PRESENT CASE. IN THAT CASE ALSO, THE RET URN OF INCOME WAS FILED BY THE ASSESSEE ON 01.12.2006 AND IT WAS THE CASE OF T HE A.O. THAT THE SAME I.T.A.NO. 1641 /AHD/2009 4 IS BEYOND THE DUE DATE SPECIFIED U/S 139(1) OF THE INCOME TAX ACT, 1961 AND, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DE DUCTION U/S 80-IB OF THE ACT. HENCE, IT IS SEEN THAT FACTS ARE IDENTICAL IN BOTH THE CASES. IN THAT CASE, THE ISSUE IN DISPUTE WAS DECIDED BY THE TRIBU NAL IN FAVOUR OF THE ASSESSEE AND THE RELEVANT PARA OF THE TRIBUNAL DECI SION IS PARA 7 WHICH IS REPRODUCED BELOW: WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE DO NOT FIND MERIT IN THE APPEAL OF THE REVENUE. THE FACTS NOTED IN THE IMPUGNED ORDER HAVE NOT BEEN DISPUTED. IT IS NOT IN DISPUTE THAT THE CBDT CONSIDERING THE REPORTS ON DISRUPTION CAUSED DUE TO HEAVY RAINS AND FLOODS IN THE STATE OF GUJARAT EXTENDED THE DUE DAT E FOR FILING OF RETURN FROM 31-10-2006 TO 31-12-2006 IN THE CASE OF INCOME TAX ASSESSEES IN THE STATE OF GUJARAT. THE ASSESSMENTS FRAMED IN THE CASES OF THE ASSESSEES WHO CARRIED ON BUSINESS IN D AMAN ARE ASSESSED OR ASSESSABLE IN THE STATE OF GUJARAT BY I NCOME TAX OFFICE SITUATED AT VAPI. THE ASSESSEE ALSO EXPLAINE D THAT DUE TO DIFFERENT CATEGORY OF AO, STATUS, INCOME AND IN CAS ES OF NON- COOPERATE, THE ASSESSEES HAVING INCOME OF MORE THAN RS.5 LACS ARE ASSESSED AT VAPI AND THE SMALL ASSESSEES ARE ASSESS ED AT THE OFFICE AT VAPI, WARD -4, DAMAN. IT IS NOT IN DISPUTE THAT THE OFFICE OF INCOME TAX OFFICE, VAPI, WARD-4, DAMAN FALLS WITHIN THE JURISDICTION OF INCOME TAX OFFICER, VAPI WHO IS IN JURISDICTION OF CIT, VALSAD AND CCIT, SURAT AND CCIT, AHMEDABAD WHI CH ARE SITUATED IN THE STATE OF GUJARAT. THE PAN AND TAN D ETAILS SUBMITTED BY THE ASSESSEE CLEARLY INDICATED THAT TH E JURISDICTION OF THE ASSESSEE LIES AT GUJARAT ONLY. EVEN THE LEARNED CIT(A) WHO DECIDED THE APPEAL OF ASSESSEE AT DAMAN IS SITUATED AT VALSAD (GUJARAT). THE COPY OF THE ACKNOWLEDGEMENT OF RETUR N IS FILED IN THE PAPER BOOK TO SHOW THAT RETURN IS FILED IN THE OFFICE OF INCOME TAX OFFICE, VAPI, WARD-4, DAMAN ON 01-12-2006 AND T HE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE IS AL SO DESIGNATED AS INCOME TAX OFFICER, VAPI, WARD-4, DAMAN. THE CONTEN TION OF THE ASSESSEE, IS THEREFORE, CORRECT THAT FOR ALL PURPOS ES THE ASSESSEE IS ASSESSED AT VAPI (STATE OF GUJARAT). THE JURISDICTI ON OF THE ASSESSING AUTHORITY AT DAMAN AND CONCURRENTLY AT VA PI WHICH ADMITTEDLY FALLS IN THE JURISDICTION OF STATE OF GU JARAT AS NOTED ABOVE. FOR ALL PRACTICAL INTENT AND PURPOSES THE CA SES OF DAMAN FALLS IN THE JURISDICTION OF VAPI AND VALSAD. THERE FORE, THE ASSESSEE I.T.A.NO. 1641 /AHD/2009 5 IS RIGHTLY HELD TO BE ASSESSED WITHIN THE JURISDICT ION OF STATE OF GUJARAT. THUS, THE CIRCULAR OF CBDT APPLIES TO THE CASE OF THE ASSESSEE ALSO. THE LEARNED CIT(A) ON PROPER APPRECI ATION OF THE FACTS AND CBDT CIRCULAR AND THE BENEFICIAL PROVISIO NS EXTENDED TO THE ASSESSEE, RIGHTLY ALLOWED THE APPEAL OF THE ASS ESSEE BY GRANTING DEDUCTION U/S 80 IB OF THE IT ACT. NO INFIRMITY IS POINTED OUT IN THE ORDER OF THE LEARNED CIT(A). WE, THEREFORE, DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. THE SAME IS ACC ORDINGLY DISMISSED. 8. SINCE THE IDENTICAL ISSUE HAS BEEN DECIDED BY TH E TRIBUNAL IN FAVOUR OF THE ASSESSEE AND NO CONTRARY DECISION HAS BEEN B ROUGHT TO OUR NOTICE, WE FEEL THAT NO INTERFERENCE IS CALLED FOR IN THE O RDER OF LD. CIT(A) ON THIS ISSUE. REGARDING VARIOUS ARGUMENTS RAISED BY THE L D. D.R., WE WOULD LIKE TO OBSERVE THAT THE SAME ARE NOT RELEVANT IN V IEW OF THIS FACT THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF T HE ASSESSEE BY THE TRIBUNAL DECISION NOTED ABOVE. WE, THEREFORE, REJE CT THIS GROUND OF THE REVENUE. 9. GROUNDS NO.2 & 3 ARE INTERCONNECTED, WHICH ARE A S UNDER: 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN LAW , THE ID. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S 80IB OF THE I.T.ACT OF RS.97,082/-MADE U/S 40A(IA). 3.ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN LAW , THE ID. CIT (A) HAS ERRED IN ALLOWING DEDUCTION U/S. 80IB ON THE DI SALLOWANCE U/S. 40(A)(IA), AS THE DISALLOWANCE BEING TECHNICAL IN N ATURE AND ASSESSEE IS ENTITLED TO DEDUCTION OF SUCH DISALLOWA NCE IN NEXT YEAR ON PAYMENT BASIS. THIS WOULD LEAD TO DOUBLE BENEFIT TO THE ASSESSEE. 10. IN THIS ASPECT, LD. D.R. SUPPORTED THE ASSESSME NT ORDER WHEREAS THE LD. A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LD. CIT(A). IT WAS ALSO SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF T HE ASSESSEE BY THE TRIBUNAL DECISION RENDERED IN THE CASE OF RAMESH IN DUSTRIES VS ITO RENDERED IN I.T.A.NO. 3131/AHD/2008 DATED 21.01.201 1 WHEREIN IT WAS I.T.A.NO. 1641 /AHD/2009 6 HELD THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/ S 80-IB ON THE ENHANCED INCOME AFTER MAKING DISALLOWANCE U/S 40(A)(IA). H E SUBMITTED A COPY OF THIS TRIBUNAL DECISION. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD. A.R. OF THE ASSE SSEE. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY THE TRIBUNAL AT PARA 10 O F THE TRIBUNAL ORDER, WHICH IS REPRODUCED BELOW: 10. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSE D THE MATERIAL ON RECORD. THE ISSUE IS DIRECTLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S CHIRAG PLAST IN ITA NO.2415/AHD/2009 ASST. YEAR 2006-07 PR ONOUNCED ON 23 RD OCTOBER, 2009 WHEREIN WAS HELD AS UNDER :- '5. REGARDING GROUND NO. 2, WE ARE OF THE CONSIDERE D VIEW THAT EVEN IF ADDITION IS SUSTAINED, THEN ASSESSEE W OULD BE ENTITLED TO DEDUCTION UNDER SECTION 80IB AS IT WOUL D BE ONLY THE BUSINESS PROFIT. SECTION 40(A)(IA) FALLS IN CHA PTER (IV) AND UNDER 'THE HEAD COMPUTATION OF BUSINESS INCOME.' AN Y ADDITION PROPOSED BY THE ASSESSING OFFICER BY INVOK ING A PROVISION FALLING IN CHAPTER (IV) UNDER THE 'HEAD COMPUTATION OF BUSINESS INCOME, PARTICULARLY BETWEE N SECTION 28 TO 43D, WOULD BE MADE UNDER THE 'HEAD IN COME FROM BUSINESS AND PROFESSION' AND NOT UNDER THE HEA D 'INCOME FROM OTHER SOURCES', UNLESS SPECIFICALLY SO PROVIDED. ACCORDINGLY, THOUGH PROPOSED BY THE ASSES SING OFFICER ON THE GROUND THAT TDS HAS NOT BEEN PAID TO THE ACCOUNT OF THE CENTRAL GOVERNMENT WITHIN TIME IS IN ORDER, BUT ASSESSEE IS ENTITLED TO DEDUCTION UNDER SECTION 80IB THEREON AS IT WOULD BE ONLY A PAN OF BUSINESS PROFI T. THE ARGUMENT OF THE LEARNED DR THAT ASSESSEE MAY CLAIM BENEFIT AGAIN ON PAYMENT BASIS IS PREMATURE AND ACADEMIC AS THERE ARE ENOUGH LEGAL RECOURSES OPEN TO PREVENT SUCH CLA IMS. AS A RESULT WE DO NOT FIND ANY FORCE IN THIS GROUND RAIS ED BY THE REVENUE. THE SAME IS DISMISSED.' I.T.A.NO. 1641 /AHD/2009 7 SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE ARE T HE SAME, FOLLOWING ABOVE DECISION WE, UPHOLD THE ORDER OF ID . CIT(A) AND DISMISS THE GROUND RAISED BY THE REVENUE. 12. SINCE IN THE PRESENT CASE, THIS ISSUE IS SQUARE LY COVERED IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL DECISION, WE DO NOT F IND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE ALSO BECAUSE NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE. THESE GRO UNDS OF THE REVENUE ARE ALSO REJECTED. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 14. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 19/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.21.12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 21/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.21/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21/12/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..
