M/s. Tonira Pharma Ltd., Baroda V. The Income tax Officer,Ward-4(4), Baroda

ITA 2565/AHD/2009

• Counselvise Citation: 256520514 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-10-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 09-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S V AGRAWAL

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI D.K.TYAGI, JM AND A. MOHAN ALANKAMON Y, AM. M/S TONIRA PHARMA LTD. PLOT NO.23-24, GIDC ESTATE, NANDESARI, BARODA. VS. INCOME-TAX OFFICER, WARD 4(4), BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S. V. AGRAWAL, AR RESPONDENT BY:- SHRI SAMIR TEKRIWAL, SR.DR DATE OF HEARING : 31/10/2011 DATE OF PRONOUNCEMENT :31.10.2011 O R D E R PER D. K. TYAGI, JUDICIAL MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING AG AINST THE ORDER OF LD. CIT(A) DATED 29.8.2008 RAISING FOLLOWING GROUND :- (1) THE LD. CIT(A) III, BARODA HAS ERRED IN CONFIRMING DISALLOWANCE U/S 35D OF RS.2,78,917/- (CLAIMED RS.4 ,40,917) LESS ALLOWED BY A.O. RS.1,62,000/-. 2. THIS APPEAL HAS BEEN FILED LATE BY THE ASSESSEE. CONDONATION PETITION HAS BEEN FILED WHICH IS SUPPORTED BY AN AF FIDAVIT. ITA NO.2565/AHD/2009 ASST. YEAR :2003-04 ITA NO.2565/AHD/2009 ASST. YEAR 2003-04 2 3. AFTER HEARING BOTH THE PARTIES, THE DELAY WAS CO NDONED AND THE APPEAL WAS ADMITTED FOR HEARING. 4. AT THE TIME OF HEARING THE LD. COUNSEL OF THE AS SESSEE AT THE OUTSET SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.3 883, 3884 & 3885/AHD/2004 ASST. YEARS 1998-99, 2000-01 & 2001-0 2, ACCORDING TO WHICH THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVATION :- 4. THE LD. COUNSEL OF THE ASSESSEE EXPLAINED THAT THE CLAIM OF RS.4,40,917/- WAS FOR THE INCREASE IN PUBLIC ISSUE FOR EXTENSION OF OLD PROJECT AND IT WAS BEING CLAIMED FROM ASST. YEAR 19 96-97. IT HAS NOTHING TO DO WITH THE SETTING UP OF INDUSTRIAL UNDERTAKING ON 1.10.1999. IN ANY CASE, THERE WAS AN INCREASE IN THE CAPITAL OF RS.51 8.42 LACS AS PER THE REVISION CLAIM OF THE ASSESSEE VIDE LETTER DATED 26 .10.2004 AND BORROWINGS FROM BANK OF RS.132.62 LACS AGGREGATING TO RS.651.04 LACS. 2.5% THEREOF WORKS OUT TO RS.16,27 LACS AND 1/5 TH THERE OF SHOULD HAVE BEEN ALLOWED EVEN AS PER THE CIT(A)S WORKING AS AG AINST RS.16.27 LACS WHICH IS 1/10 TH OF CAPITAL AMOUNT. THERE IS THUS SOME MISUNDERSTAN DING ON THE FACTS AND CIRCUMSTANCES OF THE CASE. WE, THE REFORE, SET ASIDE THE ORDERS OF THE CIT(A) AS WELL AS THAT OF THE AO AND REMIT THE MATTER BACK TO THE FILE OF THE AO TO CONSIDER THE CLAIM OF THE ASSESSEE AFTER OBTAINING THE EXACT DETAILS OF EXPENDITURE VIS--VIS 35D CLAI M OF THE ASSESSEE WHETHER FROM ASST. YEAR 1996-97 OR 2000-01 OR BOTH AND CONSIDER THE CLAIM OF THE ASSESSEE IN THE RIGHT PERSPECTIVE. 5. IN THE RESULT, THE APPEALS STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2565/AHD/2009 ASST. YEAR 2003-04 3 5. IN VIEW OF THE ABOVE, THE MATTER IS RESTORED BAC K TO THE FILE OF AO TO CONSIDER THE CLAIM OF ASSESSEE AS PER ABOVE DIRE CTION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 31.10.2011. SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICI AL MEMBER AHMEDABAD, MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 31/10/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER 31/10/2011 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..