Assistant Commissioner of Income-tax, V. M/s. Venkateswara Hatheries (P) Ltd., Pune

ITA 2249/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7159 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-01-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 15-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 80IB; 263; 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! ' # $ , % & BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM !. / ITA NO.2249/PUN/2014 ' ( ( / ASSESSMENT YEAR : 2003-04 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(2), 4 TH FLOOR, C WING, PMT BUILDING, SWARGATE, PUNE. . / APPELLANT V/S M/S. VENKATESHWARA HATCHERIES PVT. LTD., S.NO.114/A/2, PUNE SINHGAD ROAD, PUNE 411030. PAN : AAACV7247H. . / RESPONDENT / APPELLANT BY : SHRI SUHAS KULKARNI. / RESPONDENT BY : SHRI NIKHIL PATHAK ) / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) CENTRAL, PUNE DT.12.09.2014 FOR THE ASSESSMENT YEAR 2003-04. / DATE OF HEARING : 24.01.2017 / DATE OF PRONOUNCEMENT: 31.01.2017 2 ITA NO.2249/PUN/2014 AY.NO.2003-04 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 2.1 ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN POULT RY BUSINESS. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2003-0 4 ON 25.11.2003 DECLARING TOTAL INCOME AT RS.7,39,04,393/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSES SMENT WAS FRAMED U/S 143(3) VIDE ORDER DT.24.02.2006 WHEREIN THE CLA IM OF THE ASSESSEE U/S 80IA AT RS.1,02,21,640/- IN RESPECT OF F EED MILL UNIT AT POONAPALLI, HOSUR, TAMILANADU WAS ALLOWED BY THE AO. LATER, LD.CIT-III, HYDERABAD VIDE ORDER DT.04.10.2007 ISSUE D DIRECTIONS U/S 263 TO AO TO RE-EXAMINE THE ALLOWABILITY OF DEDUCTION U/S 80IA / 80 IB OF THE ACT OF THE FEED MILL UN IT. THEREAFTER ASSESSMENT WAS FRAMED U/S 144 R.W.S. 263 VIDE ORDER DT.31.12.2008 AND THE TOTAL INCOME WAS DETERMINED AT RS.8,46,32,196/-. AGGRIEVED BY THE ORDER OF AO ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.12.09.2014 ALLOWED THE APPEAL OF THE ASSESSEE BY INTER-ALIA HOLDING THAT SINCE THE ORDER PASSED BY LD.CIT-III, HYDERABAD U/S 26 3 HAS BEEN CANCELLED, THE IMPUGNED ORDER PASSED IN CONSEQUENCE TO ORDER U/S 263 HAS NO LEGS TO STAND. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISE D THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING THE APPEAL OF THE ASSESSEE WITHOUT CONSIDERING THE MERIT OF THE CASE. 3 ITA NO.2249/PUN/2014 AY.NO.2003-04 2. THE ORDER OF LD. CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BEFORE US LD. D.R. SUPPORTED THE ORDER OF LD.CIT(A). ON THE OTHER HAND LD.A.R REITERATED THE SUBMISSIONS MADE BEFO RE LD.CIT(A) AND SUBMITTED THAT THE IMPUGNED ORDER WAS PASS ED BY AO CONSEQUENT TO THE ORDER PASSED BY LD. CIT U/S 263 OF THE ACT. HE FURTHER SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1162/HYD/2007 ORDER DT.09.04.2010 HAD CANCELLED THE ORDER OF LD.CIT-III, HYDERABAD PASSED U/S 263 OF T HE ACT AND THEREFORE THE IMPUGNED ORDER PASSED CONSEQUENT TO THE DIRECTIONS U/S 263 WAS RIGHTLY CANCELLED BY LD.CIT(A). HE P LACED ON RECORD THE COPY OF THE AFORESAID DECISION OF THE CO-OR DINATE BENCH OF THE TRIBUNAL. HE THUS SUPPORTED THE ORDER OF LD.CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE IT IS AN UNDISPU TED FACT THAT CIT-III, HYDERABAD PASSED ORDER U/S 263 OF THE A CT WHEREIN HE SET ASIDE THE ORDER PASSED BY AO U/S 143(3) OF THE ACT AND FURTHER DIRECTED THE AO TO RE-EXAMINE THE ISSUE OF ALLOWAB ILITY OF DEDUCTION U/S 80IA / 80IB OF THE ACT. AGAINST THE ORD ER PASSED BY LD.CIT U/S 263, THE ASSESSEE CARRIED THE MATTER BEFO RE THE TRIBUNAL. THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DT.09.04.2010 HAD CANCELLED THE ORDER OF LD. CIT PASSED U/S 263. IN SUCH A SITUATION, WE ARE OF THE VIEW THAT LD.CIT(A) HAD RIGHTLY CANCELLED THE CONSEQUENTIAL ORDER DT.31.12.2008 PASSED B Y AO 4 ITA NO.2249/PUN/2014 AY.NO.2003-04 U/S 144 R.W.S. 263 OF THE ACT. FURTHER, BEFORE US REVE NUE HAS NOT PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE AFORESAID ORDER OF THE TRIBUNAL WHEREBY THE ORDER OF LD. C IT PASSED U/S 263 OF THE ACT WAS SET ASIDE BY THE HIGHER JUDICIAL FORUM. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON T O INTERFERE WITH THE ORDER OF LD. CIT(A). THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 31 ST JANUARY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER % / ACCOUNTANT MEMBER PUNE; ! DATED : 31 ST JANUARY, 2017. YAMINI ) * +#,- .-# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. COMMISSIONER OF INCOME TAX-(A)- CENTRAL, PUNE. COMMISSIONER OF INCOME TAX, CENTRAL, PUNE.. #$% &&'(, * '(, + / DR, ITAT, A PUNE. %-. / / GUARD FILE )' / BY ORDER, // //// // TRUE COPY // T //// TRUE // //COPY // // TRUE COPY // 0 1234 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.