ACIT, UDAIPUR V. M/s. Green Marble House Pvt. Ltd., UDAIPUR

ITA 245/JODH/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7954 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-11-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 29-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K CHOWBE
• Assessee Lawyers: R K POKARNA
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 80HHC; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 245, 272 & 206/JU/2012 ASSESSMENT YEARS: 2000-01, 2001-02 & 2002-03 THE A.C.I.T VS. M/S GREEN MARBLE HOUSE P . LTD CIRCLE - 2 8-D, NEW FATEHPURA, UDAIPUR UDAIPUR PAN NO. AABCG 0935 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. POKARNA DEPARTMENT BY : SHRI R.K. CHOWBE DATE OF HEARING : 16.11.2012 DATE OF PRONOUNCEMENT : 14.12.2012 ORDER PER HARI OM MARATHA, J.M. THESE THREE APPEALS HAVE BEEN FILED BY THE REVENUE AGAINST THE SAME ASSESSEE FOR ASSESSMENT YEARS 2000 -01, 2001-02 & 2002-03. THE FACTS INVOLVED IN THESE THRE E APPEALS ARE SO ENTWINED, THAT IT WOULD BE CONVENIEN T TO DECIDE THEM JOINTLY. THEREFORE, WE PROCEED TO DECI DE THEM BY A COMMON ORDER. FIRST OF ALL WE WILL DISCUS S AND DECIDE THE APPEAL PERTAINING TO ASSESSMENT YEAR 200 1-02. 2 ITA NO. 245/JU/2009 [ASSESSMENT YEAR 2001-02] 2. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A), UDAIPUR, DATED 3.2.2009. 3. THE APPELLANT HAS RAISED THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN : 1. QUASHING THE REOPENING U/S 148 OF THE ACT 2. DELETING THE ADDITION ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80HHC ON EXPORT OF MARBLE BLOCK IGNORING THE FACT THAT IN VIEW OF CIRCULAR NO. 693 DATED 17.11.1994 THERE WAS NO SUBSTANTIAL VALUE ADDITION. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE- COMPANY FILED ITS ORIGINAL RETURN OF INCOME ON 15.9 .2001 DISCLOSING TOTAL INCOME OF RS. 1,30,57,190/-. ASSE SSMENT WAS COMPLETED U/S 143(3) ON 27.2.2004. THE ASSESSE E COMPANY IS ENGAGED IN MINING, TRADING AND EXPORT OF MARBLE BLOCKS. DURING THE YEAR, IT HAS DECLARED TO TAL EXPORT SALES OF RS. 3,65,72,041/- AND HAS DISCLOSED GROSS PROFIT OF RS. 2,32,39,000/- GIVING A PROFIT RATE OF 63.37%. 3 THE ASSESSEE-COMPANY HAS CLAIMED DEDUCTION IN REGAR D TO SALE OF GREEN MARBLE BLOCKS U/S 80HHC OF THE ACT RE AD WITH THE TWELFTH SCHEDULE OF THE ACT. IN THE ORIGIN AL ASSESSMENT ORDER PASSED ON 27.2.2000, THE A.O. HAD ALLOWED THIS DEDUCTION. LATER ON, HE FORMED HIS OP INION THAT THE ASSESSEE WAS NOT ENTITLED TO THE DEDUCTION U/S 80HHC OF THE ACT, AS IT DID NOT EXPORT CUT AND POL ISHED MARBLE BLOCKS, AND THEREFORE, AFTER RECORDING REQUI SITE REASONS, THE A.O. INITIATED ACTION U/S 147 OF THE A CT. A NOTICE U/S 148 DATED 5.3.2008, I.E. FOUR YEARS AFTE R THE END OF THE MONTH [FEB] IN WHICH ORIGINAL ASSESSMENT ORDER WAS PASSED, WAS ISSUED TO THE ASSESSEE-COMPANY. IN REASSESSMENT, THE A.O. WITHDREW THE ALLOWANCE OF DEDUCTION U/S 80HHC OF THE ACT. BEING AGGRIEVED, TH E ASSESSEE TOOK TWO-FOLD ARGUMENTS BEFORE THE LD. CIT (A), FIRSTLY, CHALLENGING THE LEGALITY OF REASSESSMENT I TSELF, WHICH WAS AS PER THE ASSESSEE BASED ON CHANGE OF OP INION OF THE A.O. AND, SECONDLY, CHALLENGING THE ADDITION ON MERITS. THE LD. CIT(A), AFTER FOLLOWING THE DECISI ON OF THE JODHPUR BENCH IN ASSESSEES OWN CASE, ORDER DATED 4 7.4.2006, PASSED IN ITA NO. 385/JU/2006, COPY OF WH ICH IS ENCLOSED AT PAGES 4 AND 5 OF ASSESSEES PAPER BOOK, HAS ALLOWED THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT AND FACTS IN ALL THESE YEARS AND THE EARLIER ASSESSMENT YEARS REMAINING SAME AND SIMILAR. HE HAS OBSERVED THAT N O NEW FACTS WERE BROUGHT ON RECORD BY THE A.O. THEREFORE , THE LD. CIT(A) HAS ACCEPTED BOTH LEGAL AS WELL AS MERI TORIOUS GROUNDS AND HAS ALLOWED THE APPEAL OF THE ASSESSEE. NOW THE REVENUE IS AGGRIEVED AND HAS COME IN APPEAL BEF ORE US. 5. AFTER CONSIDERING BOTH THE SIDES, WE ARE CONVINC ED THAT THERE IS NO ERROR IN THE FINDING OF THE LD. CI T(A). THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED B Y VARIOUS DECISION OF THE JODHPUR BENCH OF THIS TRIBUNAL, WHO HAVE RENDERED A DECISION IN FAVOUR OF THE ASSESSEE UNDER IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE. IN I TA NO. 385/JU/2006, 487/JU/2007 AND 484/JU/2007 IN ASSESSE ES OWN CASE, PERTAINING TO ASSESSMENT YEARS 1999-2000 AND 2004-05, COPIES OF WHICH ARE ENCLOSED IN THE PAPER BOOK 5 FURNISHED BY THE ASSESSEE, THIS BENCH HAS TAKEN A V IEW THAT THE ASSESSEE-COMPANY IS ELIGIBLE FOR DEDUCTION U/S 80HHC OF THE ACT. THE A.O. DID NOT BRING ANY FURTH ER MATERIAL ON RECORD TO FORM HIS DIFFERENT OPINION AN D THUS THE REOPENING IS BASED ON MERE CHANGE OF OPINION ON SAME SET OF FACTS, WHICH IS NOT PERMISSIBLE UNDER THE LA W. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KELVIN ATOR OF INDIA LIMITED REPORTED IN [2010] 320 ITR 561 [SC] H AS CATEGORICALLY HELD, THAT NO-DOUBT AFTER 1.4.1989, T HE POWER OF REOPENING OF AN ASSESSMENT HAS BEEN WIDENE D BUT THE CHANGE OF OPINION CANNOT, PER SE, BE MADE A R EASON TO REOPEN AN ALREADY COMPLETED ASSESSMENT ORDER. T HE A.O. HAS POWER TO REASSESS BUT NO POWER OF REVIEW. THE CONCEPT OF CHANGE OF OPINION IS AN INBUILT CHECK OF ABUSE OF POWER BY THE A.O. THERE BEING NO TANGIBLE MATER IAL TO COME TO A CONCLUSION THAT THERE HAS BEEN ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE LIVE LINK WITH FORMATION OF BELIEF OF A.O. THEREFORE, WE ARE CONV INCED THAT THERE IS NO MERIT IN THE GROUNDS RAISED BY THE REVENUE. THE LD. CIT(A) HAS FOLLOWED TRIBUNALS ORD ER IN 6 ASSESSEES OWN CASE AND HAS ALLOWED ITS APPEALS. HE NCE, BY RESPECTFULLY FOLLOWING THE TRIBUNAL ORDERS, AND IN VIEW OF THE FOREGOING DISCUSSION, WE CANNOT ALLOW THE GR OUNDS RAISED BY THE REVENUE BEFORE US. THEREFORE, WE CONF IRM THE FINDING OF THE LD. CIT(A). ACCORDINGLY, BOTH T HE GROUNDS RAISED IN THIS APPEAL STAND DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ITA NO. 272/JU/2012 [ASSESSMENT YEAR 2000-01] 7. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A) DATED 3.2.2009. 8. GROUNDS RAISED IN THIS YEAR ARE EXACTLY IDENTICA L TO THE GROUNDS RAISED IN ASSESSMENT YEAR 2001-02 IN IT A NO. 245/JU/2012 AS ABOVE. THEREFORE, WITH SIMILAR REASO NINGS, WE DISMISS THIS APPEAL OF THE REVENUE HOLDING THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80HHC OF THE ACT. 7 ITA NO. 206/JU/2012 [ASSESSMENT YEAR 2002-03] 9. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A) DATED29.1.2010. 10. IN THIS YEAR, THE GROUND RAISED IS ONLY ON MERI TS ON ALLOWABILITY OF DEDUCTION U/S 80HHC OF THE ACT. AS WE HAVE ALREADY TAKEN A VIEW THAT THE ASSESSEE-COMPANY IS ELIGIBLE FOR DEDUCTION U/S 80HHC OF THE ACT, WITH S IMILAR REASONING, WHICH WE HAVE TAKEN WHILE DECIDING MERIT S OF ABOVE APPEAL WE CANNOT ALLOW THIS APPEAL OF THE REV ENUE EITHER. HENCE, THIS APPEAL OF THE REVENUE STANDS DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 8 10. TO SUM UP, ALL THE THREE APPEALS OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 14.12.2012. SD/- SD/- (R.C. SHARMA) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH DECEMBER, 2012 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR