DCIT-AKOLA-CIRCLE, Akola V. M/S LEBEN LABORATORIES PVT. LTD, Akola

ITA 226/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1729 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: C J THAKAR AW SHRI S C THAKAR
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 226/NAG./2014 ( ASSESSMENT YEAR : 200910 ) DY. COMMISSIONER OF INCOME TAX AKOLA CIRCLE, AKOLA 444 001 APPELLANT V/S M/S. LEBEN LABORATORIES PVT. LTD. L4, PHASE III, MIDC, AKOLA 444 101 PAN AAACL2524M RESPONDENT ITA NO. 227/NAG./2014 ( ASSESSMENT YEAR : 201011 ) DY. COMMISSIONER OF INCOME TAX AKOLA CIRCLE, AKOLA 444 001 APPELLANT V/S M/S. LEBEN LABORATORIES PVT. LTD. L4, PHASE III, MIDC, AKOLA 444 101 PAN AAACL2524M RESPONDENT REVENUE BY : SHRI NARENDRA KANE ASSESSEE BY : SHRI C.J. THAKAR A/W SHRI S.C. THAKAR DATE OF HEARING 19.08.2015 DATE OF ORDER 21.08.20 15 M/S. LEBEN LABORATORIES PVT. LTD. 2 O R D E R PER SHAMIM YAHYA, A.M. THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAI NST THE IMPUGNED ORDERS OF EVEN DATE 19 TH DECEMBER 2013, PASSED BY THE LEARNED COMMISSIONER (APPEALS)-I, NAGPUR, FOR THE A SSESSMENT YEAR 200910 AND 201011 RESPECTIVELY. SINCE BOTH THE SE APPEALS PERTAIN TO THE SAME ASSESSEE INVOLVING COMMON ISSUE ARISING OUT OF IDENTICAL SET OF FACTS AND CIRCUMSTANCES, THEREFORE, AS A MATTER OF CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND A RE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. 2. THE SOLE COMMON ISSUE RAISED IN THESE APPEALS IS WH ETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE D ISALLOWANCE OF ` 55,10,279 FOR THE ASSESSMENT YEAR 200910 AND ` 69,09,614 FOR THE ASSESSMENT YEAR 201011 MADE BY THE ASSESSING OFFICER UNDER SECTION 80IB OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SU BMITTED THAT WITH RESPECT TO THE SAME DISALLOWANCE IN EARLI ER YEARS IN ASSESSEES OWN CASE, THIS TRIBUNAL, VIDE ORDER DATED 3 RD APRIL 2013, FOR THE ASSESSMENT YEAR 200506, 200607 AND 200708, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HENCE, TH E LEARNED M/S. LEBEN LABORATORIES PVT. LTD. 3 COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CI T(A) HAS FOLLOWED THE SAME ORDER OF THE TRIBUNAL AS THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE. 4. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE C OULD NOT CONTROVERT THIS SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSE SSEE. 5. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASSESSEE HAS BEEN ALLOWED DEDUCTION UNDER SECTION 80IB FOR EARLIER YEARS. TH IS TRIBUNAL, IN ASSESSEES OWN CASE CITED SUPRA FOR THE ASSESSMEN T YEAR 2005 06, 200607 AND 200708, HAS, INTERALIA, ADJUDICATED T HE ISSUE BY OBSERVING AS UNDER: 8. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ASSESSEE DESERV ES TO SUCCEED IN ALL THESE THREE APPEALS IN RESPECT TO DEDUCTION UNDER SECTION 80IB. THE COPY OF THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 200304 IS PLAC ED AT PAPER BOOK AT PAGES 23 TO 42. AT PAGE 9 OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 200304, COP Y OF WHICH IS PLACED AT 31 OF THE PAPER BOOK, THE A.O. HAS NOTED IN PARA7.1 THAT THE ASSESSEE COMPANY HAS CLAIMED DEDUCTION UNDER SECTION 80IB TO TUNE OF ` 6,02,825, ` 5,55,870 AND ` 8,71,103 IN RESPECT OF UNITIII, UNITIV AND UNITV, RESPECTIVELY AND THEREAFTER DISCUSSING THE ISSUE IN DETAIL, THE TOTAL DEDUCTION ALLOWED BY THE A.O. WAS COMPUTED AT ` 5,12,429. THE COMPUTATION OF DEDUCTION IS TABULATED IN THE ORDER OF THE A.O. AT PA GE 14. COPY OF THE SAME IS PLACED AT PAGE36 OF THE PAPER BOOK. SIMILARLY WE NOTED THAT DEDUCTION UNDER SECTION 80IB WAS ALLOWED FOR ASSESSMENT YEAR 200405 AT ` 5,12,429. FROM THIS FACT ALONE, IT EMERGES THAT ALLOWBIL ITY OF DEDUCTION UNDER SECTION 80IB FOR UNITV, HAS ALREADY M/S. LEBEN LABORATORIES PVT. LTD. 4 BEEN DISCUSSED WHILE COMPLETING ASSESSMENT UNDER SECTION 143(3) IN RESPECT TO UNITV. IT IS FURTHER SEEN THAT IN THE REMAND REPORT, COPY OF WHICH IS PLACED AT PAGE S 57 TO 59 AND AT PAGE59 OF THE REMAND REPORT, IN PARA 3, IT HAS BEEN STATED THAT THE ASSESSEE HAS FURNISHED EVIDENCE OF BATCHWISE COMPUTATION INCLUDING THE REQUISITION SLIPS, CONSUMPTION OF RAW MATERIAL AND RA W MATERIAL STOCK ETC. THESE ARE ALL INTERNAL PRODUCTIO N RELATED DOCUMENTS. THESE DOCUMENTS INDICATE THAT THE UNIT HAD COMMENCED THE COMMERCIAL PRODUCTION W.E.F. 8.3.2002 I.E., BEFORE 31.3.2002. THUS, ONE OF THE CONDITIONS OF PROVISIONS OF SECTION 80IB(3) OF THE ACT REGARDING COMMENCEMENT OF THE MANUFACTURING / PRODUCTION OF ARTICLES HAS APPARENTLY BEEN FULFILLED B Y THE ASSESSEE. FROM THIS FACT, IT ESTABLISHES THAT THE COMMENCEMENT OF PRODUCTION OF UNITV WAS COMMENCED W.E.F. 8.3.2002, WHICH FALLS UNDER ASSESSMENT YEAR 2002 03. HOWEVER, NO DEDUCTION WAS CLAIMED IN RESPECT OF UNITV FOR ASSESSMENT YEAR 200203 AS THERE WAS NO SALE DURING THIS YEAR. NEXT YEAR I.E., IN ASSESSMENT YEAR 200304, THE SALE OF PRODUCTION WAS AFFECTED AND ACCORDINGLY DEDUCTION UNDER SECTION 80IB WAS ALLOWED BY ASCERTAINING THAT CONDITIONS ARE SATISFIED. 9. NOW FOR SUBSEQUENT YEAR I.E. FOR ASSESSMENT YEAR 200506 TO ASSESSMENT YEAR 200708, WHICH ARE UNDER CONSIDERATION HERE BEFORE US, WITHDRAWAL OF DEDUCTION UNDER SECTION 80IB, IN OUR CONSIDERED VIEW, IS NOT JUSTIFIED. THEREAFTER, THE TRIBUNAL HAS REFERRED TO SEVERAL CASE LAWS AND CONCLUDED AS UNDER: 12. THE RATIO OF THESE DECISION ARE SQUARELY APPLICABLE ON T HE FACTS OF THE PRESENT CASE AS ON ACCOUNT OF CERTAIN DEFICIENCIE S, THE A.O. CONCLUDED THAT THE DEDUCTION UNDER SECTION 80IB WAS NOT ALLOWABLE FOR ASSESSMENT YEAR 200506 ONWARDS, WHEREAS THE DEDUCTION UNDER SECTION 80IB IN RESPECT TO UNITV HAS ALREADY BEEN GRANTED WHILE PASSING THE ASSESSMENT ORDER UNDER SECTION 143(3). THEREFORE, IF THE ORDER OF THE A.O. FOR M/S. LEBEN LABORATORIES PVT. LTD. 5 ASSESSMENT YEAR 200304 OR 200405 WAS WRONG, THEN THOSE ORDERS WERE TO BE RECTIFIED FIRST, AND HEREAFTER THE DED UCTION UNDER SECTION 80IB COULD HAVE BEEN WITHHELD FOR ASSESSMENT YEAR 200506 ONWARDS. ACCORDINGLY, WE HELD THAT THE DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB FOR ASSESSMENT YEAR 200506 TO 200708 WERE NOT CORRECT. ACCORDINGLY, WE DIRECT THE A.O. TO ALLOW THE DEDUCTION UNDER SECTION 80IB FOR THESE THREE YEARS. SINCE THE SAME ISSUE HAS BEEN DECIDED IN FAVOUR OF TH E ASSESSEE BY THE TRIBUNAL IN ASSESSEES OWN CASE, WE DO NOT FIND ANY REASON TO DEVIATE FROM THE SAME. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE HON'BLE JURISDICTIONAL HIGH COURT HA S REVERSED THE SAID ORDER OF THE TRIBUNAL. ACCORDINGLY, RESPECTFULLY FO LLOWING THE PRECEDENT AS ABOVE, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE LEARNED CIT(A) WHICH WE HEREBY UPHOLD. THE GROUNDS OF A PPEAL RAISED BY THE REVENUE FOR ASSESSMENT YEAR 200910 AND 201011 ARE DISMISSED. 6. IN THE RESULT, REVENUES APPEALS FOR A.Y. 200910 AND 20 1011 STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.08.2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER NAGPUR, DATED: 21.08.2015 M/S. LEBEN LABORATORIES PVT. LTD. 6 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR