DCIT, Circle - 3, Kolkata, Kolkata V. M/s. Brahmanand Himghar Ltd., Kolkata

ITA 1789/KOL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6646 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Assessee Lawyers: M SATNALIWALA
• Keywords: Additional evidence
• Section: 80IB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : KOLKATA ( ) . . , , , , ) [BEFORE HONBLE SRI B.R. MITTAL, J.M. & HONBLE SRI AKBER BASHA, A.M.] ! ! ! ! / I.T.A NOS. 1788 & 1789/KOL/2010 '# $% / ASSESSMENT YEARS : 2003-2004 & 2004-2005 DEPUTY COMMISSIONER OF INCOME TAX, -VS.- M /S. BRAHMANAND HIMGHAR LTD., KOLKATA CIRCLE-3, KOLKATA (PAN : AABCB 4299 A) ( &' /APPELLANT ) ( ()&' / RESPONDENT ) FOR THE APPELLANT : SHRI P.P. SARKAR, D.R. FOR THE RESPONDENT : SHRI M. SATNALIWALA, A.R. / ORDER PER SHRI B. R. MITTAL, JUDICIAL MEMBER/ . . , : THESE TWO APPEALS HAVE BEEN FILED BY THE DEPARTMEN T FOR ASSESSMENT YEARS 2003-04 AND 2004-05 AGAINST TWO ORDERS OF LD. COMMISSIONER OF I NCOME TAX (APPEALS)-I, KOLKATA BOTH DATED 09.07.2010 ON COMMON GROUNDS (EXCEPT DIFFEREN CE IN AMOUNT, I.E. RS.21,86,836 IN ASSESSMENT YEAR 2003-04 AND RS.50,88,295/- IN ASSES SMENT YEAR 2004-05) ON FOLLOWING GROUNDS :- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A.) HAS ERRED IN ACCEPTING ADDITIONAL EVIDENCE IN CONTRAVEN TION OF THE PROVISIONS OF RULE 46A OF THE I.T. RULE, 1962. (2) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A.) WAS NOT JUSTIFIED IN HOLDING THAT THE PROVISIONS OF SEC TION 80IB(11) OF THE ACT IS APPLICABLE AND NOT THE PROVISIONS OF SECTION 80IB(5)(II) OF THE ACT AS APPLIED BY THE AO. (3) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A.) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.21,86,836/-(AY 2003-04) AND RS.50,88,295/- (AY 2004-05) MADE BY TH E AO APPLYING THE PROVISIONS OF SECTION 80IB(5)(II) OF THE ACT. 2. AT THE TIME OF HEARING, LD. DEPARTMENTAL REPRESE NTATIVE RELIED ON THE ORDERS OF THE ASSESSING OFFICER. HE ALSO COULD NOT SUBSTANTIATE G ROUND NO. 1 OF BOTH THE APPEALS TO ESTABLISH ITA NOS.1788 & 1789/KOL./2010 2 THAT LD. CIT(APPEALS) HAS ACCEPTED THE ADDITIONAL E VIDENCES IN CONTRAVENTION OF THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962. 3. ON THE OTHER HAND, LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESS EE IS RUNNING COLD STORAGE FOR PRESERVATION OF POTATOES AND HAD BEEN CLAIMING REBATE UNDER SECT ION 80IB OF THE ACT. LD. AR SUBMITTED THAT AS PER SECTION 80IB OF THE ACT, THE ASSESSEE IS ENT ITLED TO 100% DEDUCTION FOR FIRST FIVE YEARS AS PER SECTION 80IB(11) OF THE INCOME TAX ACT. HE SUBM ITTED THAT THE ASSESSING OFFICER HAS DENIED THE 100% DEDUCTION TO THE ASSESSEE AS PER SE CTION 80IB(5)(II) OF THE INCOME TAX ACT, WHICH PROVIDES DEDUCTION @ 100% FOR FIRST THREE YEA RS AND THEREAFTER @ 30%. HE SUBMITTED THAT THE SAID SECTION 80IB(5) APPLIES TO AN INDUSTR IAL UNDERTAKING OTHER THAN THE UNDERTAKINGS, WHICH ARE COVERED BY SECTION 80IB(11). LD. AR SUBMI TTED THAT SECTION 80IB(11) PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED, INTER ALIA, IN SUB-SECTION (5) AND IN CASE INDUSTRIAL UNDERTAKING IS DERIVING PROFIT FROM BUSINESS OF SET TING UP AND OPERATING COLD CHAIN FACILITY FOR AGRICULTURAL PRODUCE, THE UNDERTAKING IS ENTITLED F OR 100% DEDUCTION FOR FIVE ASSESSMENT YEARS AND THEREAFTER 30% (AS THE ASSESSEE IS A COMPANY) O F THE PROFIT AND GAIN DERIVED FROM OPERATION OF SUCH FACILITY. LD. AR SUBMITTED THAT THE ORDER O F THE LD. CIT(APPEALS) BE CONFIRMED. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES AND THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGH T OF SECTION 80IB OF THE INCOME TAX ACT. WE AGREE WITH THE LD. AR THAT SECTION 80IB(11) PROVIDE S THAT NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (II) OF SUB-SECTION 2 OF SECTION 80IB, THE A MOUNT OF DEDUCTION, IN THE CASE OF INDUSTRIAL UNDERTAKING DERIVING PROFIT FROM THE BUSINESS OF SE TTING UP AND OPERATING COLD CHAIN FACILITY FOR AGRICULTURAL PRODUCT, THE DEDUCTION @ 100% IS ALLOW ABLE FOR FIRST FIVE YEARS. THE DEPARTMENT HAS NOT DISPUTED THAT THE ASSESSMENT YEARS UNDER CO NSIDERATION FALLS WITHIN FIVE YEARS BEGINNING WITH THE INITIAL ASSESSMENT YEARS. THE DEPARTMENT H AS ALSO NOT DISPUTED THE FACT THAT THE ASSESSEE IS DERIVING INCOME FROM THE BUSINESS OF SE TTING UP AND OPERATING COLD CHAIN FACILITY TO PROVIDE STORAGE OF POTATOES, WHICH IS AN AGRICULTUR AL PRODUCT. HENCE, WE HOLD THAT THE LD. CIT(APPEALS) HAS RIGHTLY HELD THAT THE ASSESSEE IS ENTITLED FOR 100% DEDUCTION IN BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION AS PER SECTION 80IB(11) OF THE ACT. ACCORDINGLY, WE UPHOLD THE ORDERS OF LD. CIT(APPEALS) IN DELETING T HE ADDITION OF RS.21,86,836/- FOR ASSESSMENT YEAR 2003-04 AND OF RS.50,88,295/- FOR ASSESSMENT Y EAR 2004-05. IN VIEW OF THE ABOVE, THE ITA NOS.1788 & 1789/KOL./2010 3 GROUNDS OF APPEAL TAKEN BY THE DEPARTMENT ARE REJEC TED BY CONFIRMING THE ORDERS OF LD. CIT(APPEALS) FOR BOTH THE ASSESSMENT YEARS UNDER CO NSIDERATION. 5. IN THE RESULT, BOTH THE APPEALS OF THE DEPARTMEN T, I.E. FOR ASSESSMENT YEARS 2003-04 AND 2004-05 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.05.2011. SD/- SD/- [AKBER BASHA/ ] [ B.R. MITTAL / . . ] ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ DATED : 13/ 05/ 2011 COPY OF THE ORDER FORWARDED TO: 1. M/S/ BRAHMANAND HIMGHAR LTD., 36A, BENTINCK STREET, 2 ND FLOOR, KOLKATA- 69 2 DCIT, CIRCLE-3, KOLKATA, 8/2, ESPLANADE EAST, DWARL I HOUSE, 2 ND FLOOR, KOLKATA-69, 3. COMMISSIONER OF INCOME-TAX (APPEALS)- , KOLKATA 4 CIT, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSIS TANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.