Shri Maheshkuamr Chhatbar,HUF, Ahmedabad V. The CIT-Ahmedabad-III, Ahmedabad

ITA 1732/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5614 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-07-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 16-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: M J SHAH
• Keywords: Additional evidence
• Section: 143(3); 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) ITA.NO.1732/AHD/2008 AND 1090/AHD/2008 [ASSTT. YEAR: 2003-2004 AND 2002-2003] SHRI MAHESH S. CHHATBAR (HUF) PROP: OF METABUILD HARDWARE MFG. CO., 27, RAJDHANI BUNGALOWS, RAMWADI, ISANPUR, AHMEDABAD. VS. COMMISSIONER OF INCOME-TAX-III AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHELLEY JINDAL ASSESSEE BY : SHRI M.J. SHAH O R D E R PER G.D. AGRAWAL, VICE-PRESIDENT: THESE ARE TWO APPEALS BY THE ASSESSEE ONE AGAINST THE ORDER OF THE CIT-III, AH MEDABAD DATED 28-3-2008 AND ANOTHER AGAINST THE ORDER OF THE CIT(A)-XII, AH MEDABAD DATED 16.01.2007. SINCE ASSESSEE BEING SAME AND ISSUES ARE COMMON, BO TH THE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE. 2. AT THE TIME OF HEARING BEFORE US, IT WAS POINTED OUT BY THE LEARNED COUNSEL THAT THE APPEAL FOR A.Y.2002-2003 VIDE ITA NO.1090/AHD/2008 IS LATE BY 236 DAYS. HE HAD FILED PETITION FOR CONDONATION OF DELAY, DULY SUPPORTED WITH THE AFFIDAVIT OF MAHESHKUMAR S. CHHATBAR, K ARTA OF HUF. CONSIDERING THE EXPLANATION GIVEN AT THE TIME OF HEARING, AFFID AVIT OF THE KARTA OF HUF AND THE ARGUMENTS OF BOTH THE SIDES, WE DEEM IT PROPER TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE APPEAL FOR A.Y.2002-2003 VIDE ITA NO.1090/AHD/2 008 IS AGAINST THE ORDER OF THE CIT(A)-XII, AHMEDABAD. THE ONLY GROUND IN T HIS APPEAL IS AGAINST THE ITA.NO.1732/AHD/2008 AND 1090/AHD/2008 -2- DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB OF THE ACT AT RS.99,060/-. THAT THE APPEAL FOR A.Y.2003-2003, VIDE ITA NO.1732/AHD/ 2008 IS AGAINST THE ORDER OF CIT-III, AHMEDABAD PASSED UNDER SECTION 26 3 OF THE ACT. IN THIS ORDER UNDER SECTION 263, THE CIT SET ASIDE THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 7-3-2006 IN WHICH THE AO ALLOWED THE D EDUCTION UNDER SECTION 80IB TO THE ASSESSEE. THE ONLY BASIS FOR DISALLOWA NCE OF DEDUCTION UNDER SECTION 80IB IN A.Y.2002-03 IS THE CERTIFICATE OF T HE MANAGER, DISTRICT INDUSTRIES CENTRE (DIC), AHMEDABAD AS PER WHICH THE DATE OF COMMENCEMENT OF THE PRODUCTION OF THE ASSESSEE COMPANY WAS 3-3-2 003. THE CIT ALSO HELD THE ASSESSMENT ORDER FOR A.Y.2003-2004 TO BE ERRONE OUS ON THE BASIS OF THE CERTIFICATE OF THE MANAGER OF DIC. THAT THERE WAS SOME MISTAKE IN THE ABOVE CERTIFICATE ISSUED BY THE MANAGER OF THE DIC AND TH E ASSESSEE HAD POINTED OUT SUCH MISTAKE BEFORE THE GENERAL MANAGER, DIC, AHMED ABAD AND THE GM VIDE HIS CERTIFICATE DATED 26-4-2010 HAS CERTIFIED THAT THE UNIT OF THE ASSESSEE STARTED COMMERCIAL PRODUCTION IN JULY, 2001. THE LEARNED C OUNSEL FOR THE ASSESSEE REQUESTED FOR ADMISSION OF THE ABOVE CERTIFICATE OF THE GENERAL MANAGER, DIC AS AN ADDITIONAL EVIDENCE. HE ALSO SUBMITTED THAT THE ORDER OF THE CIT AS WELL AS THE AO MAY BE SET ASIDE AND RESTORED BACK TO THE FILE OF THE CIT AND THE AO FOR RECONSIDERATION AFTER CONSIDERING THE CERTIFICA TE OF THE GENERAL MANAGER, DIC. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE AO AS WELL AS THE CIT(A) FOR A.Y.2002-2003 AND THE ORDER OF THE CIT PASSED ORDER UNDER SECTION 263 FOR A.Y.2003-2004. HE ALSO OBJE CTED TO THE ADMISSION OF ADDITIONAL EVIDENCE. 5. WE HAVE CONSIDERED THE ARGUMENTS OF BOTH THE SID ES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE ASSESS MENT ORDER FOR A.Y.2002- 2003 AS WELL AS THE ORDER OF THE CIT PASSED UNDER S ECTION 263 OF THE ACT FOR A.Y.2003-2003 ARE BASED UPON THE CERTIFICATE OF THE MANAGER, DIC, AHMEDABAD WHICH CERTIFIED THE DATE OF COMMENCEMENT OF THE PRODUCTION AS 3- ITA.NO.1732/AHD/2008 AND 1090/AHD/2008 -3- 3-2003. THE ASSESSEE HAS PRODUCED BEFORE US, THE C ERTIFICATE DATED 26-4-2010 ISSUED BY THE GENERAL MANAGER, DIC, AHMEDABAD WHICH READS AS UNDER: DT.26/04/2010 TO WHOM SO EVER IT MAY CONCERN THIS IS TO CERTIFY THAT M/S.META BUILD HARDWARE MFG . CO., LOCATED AT 61, 62, 81, 81, 83, RAMESHWAR IND. ESTATE, NR. JAY CHEM ICALS, CANAL ROAD, ODHAV, AHMEDABAD 382 415 HAS BEEN ISSUED EM PART II ACKNOWLEDGEMENT VIDE NO.24 007 12 03460 DTD.14/5/20 08 AS A SMALL MANUFACTURING UNIT UNDER THE MSME ACT 2006. AS PR THE DOCUMENT FURNISHED BY THE UNIT, UNIT WAS ALSO REGISTERED AS AN SSI UNDER ERSTWHILE SSI REGISTRATION POLICY OF DC(SSI), ACCORDING TO WH ICH THE UNITS PRODUCTION COMMENCED ON 03/03/2003. HOWEVER, THE U NIT HAS SATISFIED THE UNDERSIGNED, BY PRODUCING RELEVANT DOCUMENTS; T HAT THE UNIT STARTED COMMERCIAL PRODUCTION IN JULY, 2001. 6. IN OUR OPINION, THE ABOVE CERTIFICATE IS A CRUCI AL DOCUMENT WHICH IS RELEVANT TO DECIDE THE ELIGIBILITY OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB. WE THEREFORE DEEM IT PROPER TO ADMIT THE ABO VE CERTIFICATE AS AN ADDITIONAL EVIDENCE. ADMITTEDLY, THIS CERTIFICATE WAS NOT BEFORE THE LOWER AUTHORITIES AND THE MATTER NEEDS TO BE EXAMINED AFR ESH IN THE LIGHT OF THE ABOVE CERTIFICATE. WE THEREFORE SET ASIDE THE ORDER OF T HE CIT PASSED UNDER SECTION 263 FOR A.Y.2003-2004 AND RESTORE THE MATTER BACK T O HIS FILE FOR RE- ADJUDICATION. THE ASSESSEE IS DIRECTED TO FURNISH THE ABOVE CERTIFICATE BEFORE THE CIT AND THEREAFTER THE CIT WILL RE-ADJUDICATE T HE MATTER IN ACCORDANCE WITH LAW. 7. SIMILARLY, THE ORDERS OF THE CIT(A) AS WELL AS T HE AO ARE SET ASIDE FOR A.Y.2002-2003 AND THE MATTER IS RESTORED BACK TO TH E FILE OF THE AO FOR RE- ADJUDICATION ON THE ISSUE OF ALLOWABILITY OF DEDUCT ION UNDER SECTION 80IB. THE ITA.NO.1732/AHD/2008 AND 1090/AHD/2008 -4- ASSESSEE IS DIRECTED TO FURNISH THE CERTIFICATE BEF ORE THE AO AND THEREAFTER THE AO WILL RE-ADJUDICATE THE ISSUE IN ACCORDANCE WITH THE LAW. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 22 ND JULY, 2010. SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 22-07-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD