ASE INDUSTRIES, NASHIK V. A.C.I.T. CIR 15(2), MUMBAI

ITA 2253/MUM/2012

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7976 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Wrong claim
• Section: 80IB; 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.2253/M/2012 ASSESSMENT YEAR: 2008-09 ITA NO.02/M/2013 ASSESSMENT YEAR: 2009-10 M/S. ASE INDUSTRIES, SIDDHAI DATE NAGAR, MATE NURSERY ROAD, SAVARKAR NAGAR, GANGAPUR ROAD, NASIK PAN: AAKFA2061P VS. ASST. CIT CIRCLE 15(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SUBODH RATNAPARKHI, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 05.10.2017 DATE OF PRONOUNCEMENT : 20.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY TH E ASSESSEE AGAINST THE ORDERS DATED 20.01.2012 & DATED 15.10.2 012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEARS 2008-09 & 2009-10 RESPECTIVELY. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER: ITA NO.2253/M/2012 & ITA NO.02/M/2013 M/S. ASE INDUSTRIES 2 THE FACTS IN BRIEF ARE THAT ASSESSING OFFICER (HER EINAFTER REFERRED TO AS THE AO) HAS CONDUCTED THE ENQUIRY AT ASSESSMENT STAGE BY WAY OF EXAMINATION OF BOOKS OF ACCOUNT AS WELL A S THIRD PARTY ENQUIRIES UNDER SECTION 131 AND 133(6) OF THE ACT W ITH THE BANK AND CREDITORS OF THE ASSESSEE. THE AO WAS OF A VIEW TH AT ASSESSEE HAS NOT ACTUALLY CARRIED OUT ANY MANUFACTURING ACTIVITI ES AND IT HAS ONLY OUTSOURCED THE PRODUCTION AT NANDESARI. ACCORDINGL Y, AO DENIED THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80I B ON THE GROUND THAT OUTSOURCING IS AGAINST THE SPIRIT OF PROVISION S OF SECTION 80IB OF THE ACT. AO WAS OF A VIEW THAT ASSESSEE HAS MADE A WRONG CLAIM. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS CONFIRMED THE SAME. 4. THE LD. A.R. SUBMITTED THAT THE AO HAS MADE AN E NQUIRY FROM THE BANK AND THERE HAS BEEN MISUNDERSTANDING BETWEE N THE BANK AND THE AO AND PROPER INFORMATION WAS NOT GIVEN TO AO. AO SHOULD HAVE MADE THE FURTHER CLARIFICATION REGARDING CHART ISSUED BY THE ASSESSEE TO THE CREDITOR BUT THE PROPER ENQUIRIES W ERE NOT CONDUCTED. REGARDING NON EXISTENCE OF PURCHASERS IT WAS SUBMIT TED THAT ENTIRE EXCISE OF ENQUIRIES HAVE BEEN CONDUCTED BEHIND THE ASSESSEES BACK AND THE SAME HAS NOT BEEN CONFRONTED TO THE ASSESSE E. THEREFORE, PROPER OPPORTUNITY OF HEARING WAS NOT GIVEN. WITH R EGARD TO DISCREPANCY OF TRANSPORT CHARGES, IT WAS SUBMITTED THAT THE TRANSPORTER IS A HOSTILE WITNESS AND NO MATERIAL HAS BEEN ALLEG ED AGAINST THE ASSESSEE. REGARDING THE ELECTRICITY BILL, THE ASSE SSEE DID NOT REQUIRE ITA NO.2253/M/2012 & ITA NO.02/M/2013 M/S. ASE INDUSTRIES 3 THE CONSUMPTION OF ELECTRICITY. IN RESPECT OF OUTS OURCING PRODUCTION 100% DEDUCTION HAS NOT BEEN ALLOWED BY THE AO THERE FORE, IT MAY BE ALLOWED. 5. ON THE OTHER HAND, THE LD. D.R. SUBMITTED THAT T HE ASSESSEE HAS PRODUCED ONLY ELECTRICITY BILL FOR 8 MONTHS AND ALL THESE MONTHS UNIT CONSUMPTION HAS BEEN NIL. MOREOVER, WHEN ASSESSEE E MPLOYED MORE THAN 20 WORKERS ZERO CONSUMPTION OF ELECTRICITY IN BOTH THE METERS INSTALLED AT THE PREMISES PROVES THAT THERE WAS NO MANUFACTURING ACTIVITY IN THE PREMISES OF THE ASSESSEE. MOREOVER , WAGE REGISTER OF THE ASSESSEE WAS NOT MAINTAINED ON DAY TO DAY BASIS . THEREFORE, REVENUE HAS RIGHTLY DISALLOWED THE CLAIM. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. WE FIND THAT AO HAS MADE AN ENQUIRY REGARDING THE PURC HASERS. THE AO MADE THE ENQUIRY AND FOUND THAT THERE WAS NON EXIST ENCE OF THE PURCHASERS. WE FIND THAT THE AO HAS NOT GIVEN THE C OPY OF THE REPORT TO THE ASSESSEE BEFORE PASSING THE ASSESSMENT ORDER . WE, THEREFORE, ARE OF A VIEW THAT NO ENQUIRY CAN BE MADE IN ABSENC E OF ASSESSEE AND ASSESSEE MUST BE GIVEN OPPORTUNITY TO MEET WITH THE REPORT OF THE AO. WE ALSO FIND THAT ASSESSEE HAS PRODUCED BANK S TATEMENT. THEREFORE, SUFFICIENT ENQUIRY HAS TO BE MADE BEFORE COMING TO THE CONCLUSION. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, WE RESTORE THIS MATTER BACK TO THE FILE OF AO AND AO I S DIRECTED TO GIVE THE INFORMATION WHICH WAS COLLECTED BY AO. IF ANY INFORMATION IS THERE COPY MAY BE SUPPLIED TO THE ASSESSEE. THE AS SESSEE IS DIRECTED ITA NO.2253/M/2012 & ITA NO.02/M/2013 M/S. ASE INDUSTRIES 4 TO GIVE SUFFICIENT EVIDENCE IN RESPECT OF CONSUMPTI ON OF ELECTRICITY, BANK CHEQUES IN RESPECT OF TRANSPORT MATERIALS AND IN RESPECT OF DAILY MASTER REGISTER. ASSESSEE IS DIRECTED TO GIVE EVID ENCE BEFORE THE AO AND THE AO IS DIRECTED TO PASS A FRESH ASSESSMENT O RDER, AS PER LAW. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2017. SD/- SD/- (N.K. PRADHAN) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.