N Core Cables, Daman V. The ACIT, Vapi Circle, Vapi

ITA 2169/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5954 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Wrong claim
• Section: 80IB; 271(1)(c); 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.2169/AHD/2014 ( / ASSTT YEAR :2007-08) N CORE CABLES, GALA NO. 7, PLOT NO. 10, PREMIER INDUSTRIAL AREA, KACHIGAM, DAMAN-396210 VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, VAPI CIRCLE,VAPI PAN : AAEFN7954N (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI M.K. PATEL, A.R / RESPONDENT BY: SHRI K. MADHUSUDAN, SR. D.R / DATE OF HEARING 27-04-2017 /DATE OF PRONOUNCEMENT 01-05-2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2 007-08 IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-VAPI DATED 10.04.2014 ARISING OUT OF THE ORDER U/S. 271(1)(C) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT) DATED 29.03.20 12 FRAMED BY THE ACIT, CIRCLE VAPI. SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMING PENA LTY OF RS. 21,19,870/- IMPOSED U/S. 271(1)(C) BY THE LEARNED ASSESSING OFFICER. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A PARTNERSHIP FORM ENGAGED IN BUSINESS INSULATED CABLE WITH PVC TAPE. RETURN OF INCOME WAS FILED ON 26.10.2007 AT NIL INCOME AFTER CLAIMING DEDUCTION U /S. 80IB OF THE INCOME ITA.NO.2169/AHD/2014 ASSESSMENT YEAR 2007-08 - 2 OF THE ACT AT RS. 62,92,890/-. ASSESSMENT U/S. 143( 3) OF THE ACT WAS COMPLETED ON 13.12.2009 BY LEARNED ASSESSING OFFICE R AFTER DENYING THE DEDUCTION U/S. 80IB OF THE ACT AND ASSESSED THE INC OME AT RS. 62,97,890/-. 3. THE APPEAL BEFORE COMMISSIONER OF INCOME TAX (AP PEALS) AGAINST QUANTUM ADDITIONS COULD NOT BRING ANY RELIEF TO THE ASSESSEE. SUBSEQUENT THERETO, PENALTY PROCEEDINGS U/S 271(1)(C) WAS INIT IATED AND AFTER HEARING THE ASSESSEE ON MERITS AS WELL AS ON LEGAL ASPECT PENAL TY OF RS. 21,19,870/- WAS LEVIED FOR THE WRONG CLAIM OF DEDUCTION U/S. 80IB A T RS. 62,97,890/-. AGGRIEVED ASSESSEE COME IN APPEAL BEFORE COMMISSION ER OF INCOME TAX (APPEALS) AGAINST THE PENALTY ORDER U/S. 271(1)(C) BUT COULD NOT SUCCEED. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE TRIB UNAL. 4. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE IS REFER TO THE ORDER OF ITAT/AHD FOR ASSESSMENT YEAR 2007-08 VIDE ITA NO. 7 1/AHD/2011 DATED 24.01.2014 IN ASSESSEES OWN CASE, WHEREIN COORDINA TE BENCH AFTER APPRECIATING THE FACTS AND SIMILAR ISSUES FOR ASSE SSMENT YEAR 2005-06 AND 2006-07 WHICH WERE RESTORED BACK TO THE FILE OF LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) DECIDED TO RESTORE THE QUANTUM ISSUE FOR ASSESSMENT YEAR 2007-08 RELATING TO THE CLAIM OF ASSESSEE FOR DEDUCTION U/S. 80IB OF THE ACT TO THE FILE OF LEARNED COMMISSIONER OF INCOME T AX(APPEALS) FOR LEGAL ADJUDICATION AND TO DECIDE AFRESH. LEARNED COUNSEL ALSO REFERRED TO THE DECISION OF COORDINATE BENCH IN THE CASE OF ASSESSE E FOR A.Y. 2004-05 IN ITA NO. 4144/AHD/2008 DATED 18.03.2011 WHEREIN PENALTY IMPOSED U/S. 271(1)(C), WAS DELETED FOR THE ADDITION RELATING TO WRONG CLAIM OF DEDUCTION U/S. 80IB OF THE ACT, BY FOLLOWING THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF RELIANCE PETRO PRODUCT LTD. 322 ITR 158. L EARNED COUNSEL FURTHER REFERRED TO THE ORDER OF COORDINATE BENCH DEALING W ITH APPEAL OF THE REVENUES AGAINST PENALTY DELETED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS). COORDINATE BENCH VIDE ITA NO. 225/AHD/2013 DATED 13 .10.2013 DELETED THE ITA.NO.2169/AHD/2014 ASSESSMENT YEAR 2007-08 - 3 PENALTY U/S. 271(1)(C) FOR THE ASSESSMENT YEAR 2006 -07. LEARNED COUNSEL REQUESTED FOR DELETING THE PENALTY FOR THE ASSESSME NT YEAR 2007-08 ALSO ON THE BASIS OF ABOVE REFERRED DECISIONS OF COORDINATE BEN CH. 5. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENT ATIVE VEHEMENTLY ARGUED SUPPORTING THE ORDER OF LOWER AUTHORITIES. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. GRIEVANCE OF THE ASSESSEE IN THIS APPEAL AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMING PEN ALTY OF RS. 2,19,870/- U/S. 271(1)(C) OF THE ACT. 7. WE OBSERVE THAT THE IMPUGNED PENALTY HAS BEEN IM POSED BY LEARNED ASSESSING OFFICER ON THE BASIS OF ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMING THE ACTION OF ASSESSING OFF ICER DENYING DEDUCTION U/S. 80IB OF THE ACT. WE FURTHER OBSERVE THAT AGAIN ST THE QUANTUM ADDITION ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL AND V IDE ITA NO. 71/AHD/2011 FOR ASSESSMENT YEAR 2007-08 AND COORDINATE BENCH H AS SET ASIDE THE QUANTUM ISSUE BACK TO THE FILE OF LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) FOR LEGAL ADJUDICATION AND PASSING FRE SH APPELLATE ORDER. FURTHER LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ALSO REFERRED IN RELIED ON THE DECISION OF COORDINATE BENCH IN ITA N O. 4144/AHD/2008 AND 225/AHD/2013 DATED 18.03.2011 AND 31.10.2013 WHEREI N PENALTY U/S. 271(1)(C) HAS BEEN DELETED. 8. WE ARE HOWEVER OF THE CONSIDERED OPINION THAT FA CTS OF EACH YEAR ARE DIFFERENT AND ALSO THE CLAIM OF SECTION 80IB IS ALL OWED ON THE FULFILLMENT OF CERTAIN CONDITIONS AS PER THE LAW, AND THE FACTS AR E TO BE EXAMINED FOR EACH YEAR SEPARATELY. IN THIS APPEAL ISSUE RELATES TO AS SESSMENT YEAR 2007-08 WHEREIN LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS CONFIRMED THE ACTION OF LEARNED ASSESSING OFFICER DENYING DEDUCTI ON U/S. 80IB AT RS. ITA.NO.2169/AHD/2014 ASSESSMENT YEAR 2007-08 - 4 62,97,890/- FURTHER COORDINATE BENCH HAS NOT ALLOW ED THE ISSUES RELATED TO APPEAL OF CLAIMING DEDUCTION U/S. 80IB(10) BUT HAS RESTORED THE ISSUE TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR LEGAL ADJUDICATION AND THE FRESH ORDER OF LEARNED COMMISSIONER OF INCO ME TAX(APPEALS) IN COMPLIANCE TO THE ORDER OF THE TRIBUNAL IS STILL A WAITED. 9. WE ARE THEREFORE OF THE VIEW THAT IN THE GIVEN FACTS AND CIRCUMSTANCES AND ON PERUSAL OF THE ORDER OF THE TRIBUNAL FOR ASS ESSMENT YEAR 2007-08, WE FIND ITS JUSTIFIED TO SET ASIDE THE ISSUE OF PENALT Y U/S. 271(1)(C) BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR DECIDING AFRESH IN LIGHT OF ADJUDICATION OF THE QUANTUM ISSUE OF ALLOWABILIT Y OF DEDUCTION U/S. 80IB OF THE ACT. NEEDLESS TO MENTION THAT A PROPER OPPOR TUNITY OF BEING HEARD IS TO BE PROVIDED TO ASSESSEE. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 1ST MA Y, 2017 AT AHMEDABAD. SD/- SD/- (SHRI MAHAVIR PRASAD) JUDICIAL MEMBER (SHRI MANISH BOARD) ACCOUNTANT MEMBER