The ACIT, Circle-5, Ahmedabad V. Omni Lens Pvt.Ltd., Ahmedabad

ITA 1728/AHD/2012

• Counselvise Citation: 172820514 RSA 2012
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 03-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# $ ,%& % ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 1728/AHD/2012 2005-06 ACIT CIRCLE-5 AHMEDABAD M/S.OMNI LENS PVT.LTD. 5/A, SAMRUDDHI, OPP.SAKAR-III NR.OLD HIGH COURT NAVRANGPURA AHMEDABAD PAN: AAACO1725F 2. 1729/AHD/2012 2007-08 -DO-REVENUE -DO-ASSESSEE 3. 1730/AHD/2012 2009-10 -DO- -DO- REVENUE BY : SHRI T.SANKAR, SR.D.R. ASSESSEE BY : SHRI JIGAR M.PATEL, A.R. #( ) & / / / / DATE OF HEARING : 28/09/2012 +', ) & / DATE OF PRONOUNCEMENT : 5/10/12 %- / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : ALL THESE THREE APPEALS HAVE BEEN FILED BY THE REVE NUE ARISING FROM THE ORDERS OF LD.CIT(A)-XI AHMEDABAD IDENTICAL LY DATED 3/4-5-2012. REVENUE HAS RAISED A COMMON GROUND IN THESE THREE YEARS IN RESPECT OF A DISALLOWANCE OF DEDUCTION CLAIMED U/S. 80-IB OF THE I.T.ACT. OUR ATTENTION WAS DRAWN ON THE FINDINGS OF LD.CIT(A ) WHICH WERE BASED UPON THE VIEW ALREADY TAKEN IN THE PAST IN ASSESSEE S OWN CASE. IT WAS ITA NOS.1728,1729 & 1730/AHD/2012 ACIT VS. M/S.OMNI LENS PVT.LTD. ASST.YEARS 2005-06, 2007-08 & 2009-10 - 2 - INTIMATED TO LD.CIT(A) THAT IN A.Y. 2008-09 THE ORD ER OF LEARNED CIT(APPEALS) WAS APPROVED BY ITAT AHMEDABAD D BEN CH VIDE ORDER DATED 30/03/2012. THE LD.CIT(A) HAS EXAMINED THAT ORDER AND THEREAFTER GIVEN HIS FINDING AS FOLLOWS:- 5.2. IT IS SEEN THAT SIMILAR ISSUE WAS DECIDED BY ME IN FAVOUR OF THE APPELLANT IN THE A.Y. 2008-09 IN APPEAL NO.CIT( A)- XI/327/ACIT CIR-5/10-11 DATED 23.11.2011. THE DECI SION TAKEN BY ME WAS CONFIRMED BY THE HONBLE ITAT IN ITA NO.276/ AHD/2012 A.Y. 2008-09 DTD. 30/3/2012. THE RELEVANT PARA OF THE HON'BLE ITATS ORDER IS REPRODUCED AS UNDER:- WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGMENT CITED BY THE LD.A.R. WE FIND THAT THIS I SSUE HAS BEEN DECIDED BY LD.CIT(A) AS PER PARA 3.2 OF HIS ORDER W HICH IS REPRODUCED BELOW: 2. NOW BEFORE US, THAT ORDER OF THE TRIBUNAL TITLED AS ACIT (OSD) CIRCLE-5 VS. OMNI LENS PVT.LTD. BEARING ITA NO.276 /AHD/2012 FOR A.Y. 2008-09 [ITAT D BENCH AHMEDABAD] ORDER DATED 30.3.2012 IS PLACED ON RECORD AND WE HAVE NOTED THAT VIDE PARAGR APH NO.7, THE RELIEF GRANTED BY THE LD.CIT(A) WAS CONFIRMED IN THE FOLLO WING MANNER:- 7. WE FIND THAT A CLEAR FINDING IS GIVEN BY LD. CIT (A) THAT THE A.O. HAS ALLOWED DEDUCTION U/S 80-IB TO THE ASSESSEE IN ASSE SSMENT YEAR 2004-05 AS PER THE ORDER PASSED BY HIM IN THAT YEAR U/S 143(3) AND THE SAME CLAIM WAS AGAIN ALLOWED TO THE ASSESSEE FOR ASSESSMENT YEAR 2 006-07 FOR WHICH ALSO, THE ASSESSMENT WAS COMPLETED U/S 143(3). HE HAS FOL LOWED THE JUDGEMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (SUPRA) AND HELD THAT TH E A.O. CANNOT WITHDRAW RELIEF TO A NEW INDUSTRIAL UNDERTAKING WHI CH HAS ALREADY BEEN GRANTED WITHOUT DISTURBING SUCH RELIEF FOR EARLIER YEARS. CONSIDERING THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN TH E ORDER OF LD. CIT(A) BECAUSE THE LD. D.R. OF THE REVENUE COULD NOT SHOW THAT SUCH RELIEF WAS NOT ITA NOS.1728,1729 & 1730/AHD/2012 ACIT VS. M/S.OMNI LENS PVT.LTD. ASST.YEARS 2005-06, 2007-08 & 2009-10 - 3 - ALLOWED BY THE A.O. IN EARLIER YEARS OR TO SHOW THA T SUCH RELIEF ALTHOUGH ALLOWED BUT WAS SUBSEQUENTLY WITHDRAWN. REGARDING T HIS CONTENTION OF THE LD. D.R. THAT NO EVIDENCE WAS FURNISHED BY THE ASSE SSEE BEFORE THE A.O. IN RESPECT OF PUTTING UP OF NEW UNIT IN ASSESSMENT YEA R 2001-02, WE FIND THAT AS PER THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143(3) FOR THE ASSESSMENT YEAR 2004-05 AND ASSESSMENT YEAR 2006-07 , DEDUCTION WAS ALLOWED BY THE A.O. TO THE ASSESSEE U/S 80-IB. THE A.O. HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT FOR THE UNIT ESTABLISH ED BY THE ASSESSEE IN ASSESSMENT YEAR 1994-95, ASSESSEE WAS GETTING DEDUC TION U/S 80-1A UP TO ASSESSMENT YEAR 2004-05. IF THIS BE SO, THEN FOR NE W UNIT ONLY, DEDUCTION WAS ALLOWED BY THE A.O. U/S 80-IB IN ASSESSMENT YEA R 2006-07. THIS GOES TO SHOW THAT THIS FACT WAS VERY MUCH AVAILABLE IN T HE RECORD OF THE DEPARTMENT THAT THE ASSESSEE HAS ESTABLISHED A NEW UNIT IN ASSESSMENT YEAR 2001-02 AND IN RESPECT OF THIS UNIT, DEDUCTION WAS ALLOWED BY THE A.O. TO THE ASSESSEE U/S 80-IB IN ASSESSMENT YEAR 2006-07 A LSO. HENCE, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LD. D.R. WE , THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 3. WE HEREBY CONFIRM THE RELIEF GRANTED BY THE LD.C IT(A), HOWEVER, WE DEEM IT PROPER TO EXPUNGE THE REMARKS OF THE ASS ESSEE MADE AT PARAGRAPH NO.3.3 IN A LETTER REPRODUCED VIDE PARAGR APH NO.5.1 BY LD.CIT(A). RESULTANTLY, ALL THE GROUNDS RAISED BY THE REVENUE ARE HEREBY DISMISSED. 4. IN THE RESULT, ALL THE THREE APPEALS OF THE REVE NUE ARE DISMISSED. SD/- SD/- ( .'# $ ) ( ) %& ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 05/ 10 /2012 ...#, .#../ T.C. NAIR, SR. PS ITA NOS.1728,1729 & 1730/AHD/2012 ACIT VS. M/S.OMNI LENS PVT.LTD. ASST.YEARS 2005-06, 2007-08 & 2009-10 - 4 - %- ) /0 1%0, %- ) /0 1%0, %- ) /0 1%0, %- ) /0 1%0,/ COPY OF THE ORDER FORWARDED TO : 1. 23 / THE APPELLANT 2. /423 / THE RESPONDENT 3. 5 / CONCERNED CIT 4. 5() / THE CIT(A)-XI, AHMEDABAD 5. 089 /# , , / DR, ITAT, AHMEDABAD 6. 9 :( / GUARD FILE. %-# %-# %-# %-# / BY ORDER, 40 / //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 3.10.12 (DICTATION-PAD 2 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 4.10.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S5.10.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.10.12 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