The ACIT,Vapi Circle, Vapi V. M/s. Auto-Tuf Safety Glass, Nani Daman

ITA 1861/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89360 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: M K PATEL
• Section: 143(3); 80IB; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER ITA NO . 1861 /AHD/201 1 A. Y. 200 8 - 0 9 ACIT, VAPI . VS M/S. AUTO TUF SAFETY GLASS, PLOT NO.57/1 (3 - A) & 57/1, BHENSL ORE, DUNETHA, VIA: NANI DAMAN. PAN: AA JFA 8986C (APPELLANT) (RESPONDENT) REVENUE BY : S HRI P.L. KUREEL SR. D.R. , ASSESSEE(S) BY : SHRI M.K. PATEL , A.R. / DATE OF HEARING : 2 3 / 0 4 /201 5 / DATE OF PRONOUNCEMENT: 30 / 0 4 /201 5 / O R D E R PER SHRI S.S. GODARA , JUDICIAL MEMBER TH IS REVENUE S APPEAL FOR A.Y. 200 8 - 0 9 , ARISE S FROM ORDER OF THE CIT (A) VALSAD DATED 31.5 . 2011 PASSED I N CASE NO. VLS/149/10 - 11 DELETING SECTION 80IB DEDUCTION DISALLOWANCE OF RS.1,35,15,461/ - IN PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT IN SHORT THE ACT . 2. THE ASSESSEE - FIRM FILED ITS RETURN ON 29.9.2008 ADMITTING NI L INCOME. IT CLAIMED SECTION 80IB DEDUCTION OF RS.1,35,15,461/ - . THE SAME WAS PROCESSED. THE ASSESSING OFFICER TOOK UP SCRUTINY. HE INTER ALIA NOTICED THAT SIMILAR DEDUCTION CLAIMED IN ASSESSMENT YEARS ITA NO. 1861 /AHD/201 1 M/S. AUTO TUF SAFETY GLASS FOR A.Y. 2008 - 0 9 - 2 - TO 2006 - 07 AND 2007 - 08 STOOD DECLINED ON THE GROUND TH AT THE CHIEF INSPECTOR FACTORIES HAD ISSUED A LICENSE ON ONLY ON 3.6.2004; NOT ON OR BEFORE 31.3.2004 WHEREAS IT MANUFACTURING ACTIVITY HAD COMMENCED ON 26.3.2004 PRIOR TO THAT OF THE LICENSE DATE. THE ASSESSEE PLEADED THAT THE TRIBUNAL HAD ALREADY ALLOWED ITS VERY CLAIM OF DEDUCTION IN SAID ASSESSMENT YEARS, ALL NECESSARY CONDITIONS U/S.80IB STOOD FULFILLED AND GETTING A FACTORY LICENSE BEFORE 31.3.2004 WAS NOT A CONDITION PRECEDENT SO AS TO AVAIL THE IMPUGNED DEDUCTION. THE ASSESSING OFFICER COULD NOT AGR EE. HE FRAMED ASSESSMENT ON 30.11.2010 DISALLOWING THE ASSESSEE S DEDUCTION CLAIM BY REITERATING THE AFORESAID REASONS. 3. THE CIT(A) HAS ACCEPTED THE ASSESSEE S CONTENTION BY PLACING RELIANCE ON THE TRIBUNAL ORDER FOR ASSESSMENT YEAR 2006 - 07 AND 2007 - 08 ON THE VERY ISSUE. THEREFORE THE REVENUE IS IN APPEAL. 4. WE HAVE HEARD BOTH SIDES AND GONE THROUGH THE RELEVANT FINDINGS. THE REVENUE IS FAIR ENOUGH NOT TO DISPUTE THE FACTS NARRATED HEREINABOVE AND NO DISTINCTION IS INVOLVED IN THE TRIBUNAL S ORDER IN ASSESSEE S OWN CASE IN PRECEDING ASSESSMENT YEAR. A CO - ORDINATE BENCH IN ITA 1356/AHD/2009 DECIDED ON 28.8.2009 HOLDS THAT THIS IRREGULARITY IS RELEVANT ONLY FOR THE PURPOSE OF THE CONSEQUENCES FLOWING UNDER THE FACTORIES ACT AND NOT UNDER THE PROVISIONS O F INCOME TAX LAW PRESCRIBING SECTION 80IB DEDUCTION WHICH DOES NOT DISTINGUISH BETWEEN LAWFUL OR UNLAWFUL PRODUCTION. THE REVENUE AT THIS STAGE QUOTES HON BLE JURISDICTIONAL HIGH COURT ITA NO. 1861 /AHD/201 1 M/S. AUTO TUF SAFETY GLASS FOR A.Y. 2008 - 0 9 - 3 - DECISION IN CIT VS. JOLLY POLYMERS (2012) 342 ITR 87 DECIDING THE VERY QUESTION AGAINST THE ASSESSEE. HOWEVER, WE FIND THAT THE PRESENT ASSESSEE BASED IN DAMAN UNION TERRITORY COMES UNDER THE TERRITORIAL JURISDICTION OF HON BLE BOMBAY HIGH COURT WHICH HAS ALREADY DECIDED THE ISSUE AGAINST THE REVENUE IN INCOME TAX APPEAL (L) NO.1622 OF 2012 CIT VS. JOLLY POLYMERS IN ORDER DATED 21 ST FEBRUARY, 2013. THEREFORE, THE ASSESSEE S CASE IS COVERED BY THE HON BLE JURISDICTIONAL HIGH COURT BASED IN BOMBAY AS PER SECTION 269(VI) OF THE ACT. THE REVENUE S ARGUMENTS FAIL ON LEGALITY AS WE LL AS ON MERITS. 5. THE REVENUE S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON THIS DAY, THE 30 TH APRIL, 201 5 AT AHMEDABAD. SD/ - SD/ - ( PRAMOD KUMAR ) ( S.S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED / 0 4 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD