Ramniklal Gordhandas Kotecha, Rajkot V. Asstt. Commr. of Income Tax, Circle-2(1), Rajkot

ITA 207/RJT/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3077 (ITAT-RAJKOT)
• Duration Of Justice: 5 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 14-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion
• Section: 148; 10AA

Judgement Text

ITA Nos.207 & 208/RJT/2017 A. Ys. : 2009-10 & 2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA Nos.207 & 208/RJT/2017 Assessment Years: 2009-10 & 2012-13 Ramniklal Gordhandas Kotecha, vs. The Asstt. Commissioner of 271, Taxshila Society, Income Tax, Near Phulchhab Chowk, Circle – 2(1), Rajkot. Rajkot. [PAN – AESPK 8341 L] (Appellant) (Respondent) Appellant by : None Respondent by : Shri B.D. Gupta, Ld. Sr. D.R. Date of hearing : 01.08.2022 Date of pronouncement : 26.08.2022 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : These two appeals are filed by the assessee against two different orders, both dated 31.03.2017, passed by CIT(A)-2, Rajkot for the Assessment Years 2009-10 & 2012-13. 2. The assessee has raised the following grounds of appeal: ITA No.207/RJT/2017 Assessment Year: 2009-10 “1. The grounds raised in this appeal are without prejudice to one another. 2[A] The reopening proceedings are bad in law and without jurisdiction and deserves to be quashed. 2[B] Without prejudice the reopening proceedings are based only on change of opinion and deserves to be quashed. ITA Nos.207 & 208/RJT/2017 A. Ys. : 2009-10 & 2012-13 2 2[C] The reopening proceedings has been initiated in an automatic manner making same bad in law and a nullity. 2[D] There being no under assessment and escapement of income the reopening proceedings deserves to be quashed. 2[E] Without prejudice it is contended that since the assessee had disclosed all material facts in the assessment the reopening proceedings are not justifiable and not sustainable. 3[A] The Ld. A.O. grievously erred in law and on facts in disallowing the claim of the appellant u/s.10A in respect of export on H-Form basis. On the facts and circumstances of the case it is contended that the claim of the appellant was well founded and was in accordance with law and ought to have been allowed as claimed in the return of income. 3[B] The Ld. A.O. grievously erred in law and on facts in ignoring the contentions of the assessee made at the time of assessment proceedings & the Ld. CIT(A) erred in ignoring the contentions put forth in the appeal proceedings while rejecting the claim of the assessee u/s.10A. 3[C] The Ld. CIT(A) in this regard proceeded on erroneous presumptions and premises while rejecting the claim of the assessee. 3[D] The Ld. A.O. grievously erred in law and on facts in relying upon the various decisions of courts & tribunals when the same were not applicable to the case of the assessee and could not support the case of the Revenue. 3[E] The Ld. A.O. grievously erred in law and on facts in ignoring the provisions of law in this regard and proceeded on erroneous presumptions and premises when the same was not in accordance with law. 4[A] The Ld. A.O. grievously erred in law and on facts in disallowing the deduction u/s.10A in respect of excise refund, though, the same was business profits of the assessee from CEZ entitled to deduction u/s.10A and the Ld. CIT(A) erred in law and on facts in accepting the plea of the A.O. in this regard. 4[B] The Ld. CIT(A) grievously erred in law and on facts in ignoring the decisions in case of Dharampal Premchand Ltd. (SLP filed before the honourable Supreme Court in the case of Dharampal Premchand Ltd. dismissed by order dtd. 22/02/2010} of the Delhi High Court, subsequently affirmed by the honourable Supreme ITA Nos.207 & 208/RJT/2017 A. Ys. : 2009-10 & 2012-13 3 Court and proceeded on erroneous presumptions and premises in this regard.” ITA No.208/RJT/2017 Assessment Year: 2012-13 “1. The grounds raised in this appeal are without prejudice to one another. 2. The Ld. A.O. grievously erred in law and on facts in disallowing the claim of the appellant u/s.10AA in respect of export of H-Form basis. On the facts and circumstances of the case it is contended that the claim of the appellant was well founded and was in accordance with law and ought to have been allowed as claimed in the return of income. 3. The Ld. A.O. grievously erred in law and on facts in ignoring the contentions of the assessee made at the time of assessment proceedings & appeal proceedings while rejecting the claim of the assessee u/s.10AA. 4. The Ld. CIT(A) in this regard proceeded on erroneous presumptions and premises while rejecting the claim of the assessee. 5. The Ld. CIT(A) grievously erred in law and facts in ignoring the various decisions relied upon by the appellant, including those of the jurisdictional Gujarat High Court, when the same was binding upon him and the facts obtained in the said decisions were similar to those of the assessee’s case. 6. The Ld. A.O. grievously erred in law and on facts in relying upon the various decisions of courts & tribunals when the same were not applicable to the case of the assessee and could not support the case of the Revenue. 7. On the facts and the circumstances of the case, it is contended that the deduction u/s.10AA in respect of H-Form sales ought to be allowed as claimed by the appellant. 8. The Ld. AO grievously erred in law and on facts in ignoring the provisions of law in this regard and proceeded on erroneous presumptions and premises when the same was not in accordance with law.” 3. The assessee is manufacturer of agricultural parts and agricultural items/equipments and exports the same outside India. The assessee carries on the business in the name and style of Indokoyo Power Products, as a proprietary ITA Nos.207 & 208/RJT/2017 A. Ys. : 2009-10 & 2012-13 4 concern. The assessee filed return of income on 30.09.2009 thereby showing total income of Rs.43,83,970/-. The case was reopened for assessment under Section 147 of the Income Tax Act, 1961 after giving reasons. Notice under Section 148 of the Income Tax Act, 1961 was issued on 12.02.2014. The assessee filed details before the Assessing Officer thereby challenging the reopening proceedings and there is no change of opinion and no escarpment of income or under-assessment of tax was recorded. The Assessing Officer recomputed the deduction under Section 10A of the Act and made disallowance of Rs.23,52,401/-. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. At the time of hearing none appeared on behalf of the assessee despite giving several notices. The Ld. AR also has not appeared before us despite taking note of the last date of hearing. Therefore, we are proceeding on the basis of the submissions made by the assessee before the Assessing Officer as well as before the CIT(A) which are reproduced in respective orders. 6. The Ld. DR relied upon the assessment order and the order of the CIT(A). 7. We have heard the Ld. DR and perused all the relevant material available on record. The assessee has challenged the re-opening proceedings thereby stating that there is change of opinion while reopening the assessment made under Section 143(3) of the Act. It is pertinent to note that in the original assessment the Assessing Officer has made requisite enquiry related to the claim of deduction under Section 10AA of the Act. There was observation of the Assessing Officer in other order dated 28.12.2011 that the assessee is claiming exemption under Section 10AA of the Act. As the assessee has not filed revised return for availing such claim, the claim of exemption under Section 10AA of the Act is not considered. Hence, the assessee’s claim of exemption under Section 10AA of the Act as per the original return is to be considered. As per the conditions laid down in Section 10A, profit on export related to turnover is to be considered and thus the Assessing Officer vide order dated 28.12.2011 proceeded to finalise the assessment thereby not entertaining the claim under Section 10AA of the Act. While reopening the reasons ITA Nos.207 & 208/RJT/2017 A. Ys. : 2009-10 & 2012-13 5 recorded clearly on the basis of the same issue which was already decided by the Assessing Officer in the original assessment dated 28.12.2011. Thus, the reopening proceeding itself is bad in law and, therefore, ground nos.1&2[A] to 2[E] are allowed. 8. As regards to ground nos.3[A] to 3[E], the same pertains to merit of the case. Since the issue related to validity of the assessment order has already been decided, the same is not required to be adjudicated as such but from the perusal of the records it can be seen that the Excise Duty which was termed as incentive by the Assessing Officer as well as the CIT(A) is not an incentive but the refund as per norms of the duty draw back envisaged under the Act has been claimed by the assessee and, therefore, the Assessing Officer cannot make adjustment on the same basis. Ground nos.3[A] to 3[E] are allowed. Thus, both the appeals of the assessee are allowed. 9. In the result, both the appeals filed by the assessee are allowed. Order pronounced in the open Court on this 26 th day of August, 2022. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 26 th day of August, 2022 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Rajkot Bench, Rajkot