JAI JINENDRA COLD STORAGE P. LTD, NAVI MUMBAI V. ITO 10(3)(3), MUMBAI

ITA 2585/MUM/2011

• Counselvise Citation: 258519914 RSA 2011
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Keywords: Opportunity of being heard; Principle of natural justice; Rule of consistency; Period of limitation; Difference of opinion; Change of opinion
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, J, MUMBAI BEFORE SHRI R.S. SYAL (A.M.) AND SHRI D.K.AGARWAL ( JM) ITA NO.2584 AND 2585/MUM/2011 (ASSESSMENT YEARS: 2007-08 AND 2008-09) M/S JAI JINENDRA COLD STORAGE PVT.LTD., E-97, ONION POTATO DIVISION, APMC MARKET YARD, TURBHE, NAVI MUMBAI-400703, PAN: AABCJ0852F INCOME TAX OFFICER 10(3)(3), MUMBAI APPELLANT V/S RESPONDENT DATE OF HEARING : 30.1.2012 DATE OF PRONOUNCEMENT : 8.2.2012 APPELLANT BY : MS. RITIKA AGARWAL RESPONDENT BY : SHRI JITENDRA YADAV O R D E R PER D.K.AGARWAL (JM) THESE TWO APPEALS PREFERRED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 14.2.2011 PASSED BY THE LD. CIT(A) FOR THE ASSESSME NT YEARS 2007-08 AND 2008-09. SINCE FACTS ARE IDENTICA L AND ISSUES INVOLVE ARE COMMON, BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE O F CONVENIENCE. ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 2 ITA NO.2584/MUM/2011(AY:2007-08) 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF COLD STORAGE, HANDLING AND TRADING OF FOOD ARTICLES ETC. IT FILED RETURN DECLARING TOTAL INCOME AT RS.NIL. HOW EVER, THE ASSESSMENT WAS COMPLETED AFTER DISALLOWING DEDUCTIONS UNDER SECTIONS 80IB(11) AND 80IB(11A) OF THE INCOME TAX ACT, 1961 (THE ACT) AT AN INCOME OF RS.51,41,143/- VIDE ORDER DATED 30.12.2009 PASSED U/S 143(3) OF THE ACT, 1961. ON APPEAL, THE LD. CIT (A), WHILE AGREEING WITH THE VIEWS OF THE AO DISMISSED THE ASSESSEES APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 4. GROUND NO.1 READS AS UNDER : 1. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE ORDER PASSED THE AO EVEN THOUGH IT IS BARRED BY LIMITATION HAVING BEEN PASSED AND ISSUED AFTER THE STATUTORY TIME PERIOD. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT SINCE THE ASSESSMENT ORDER ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 3 DATED 30.12.2009 WAS DISPATCHED BY THE DEPARTMENT ON 1.1.2010 WHICH WAS RECEIVED ON 2.1.2010 AS PER POSTAL RECEIPT APPEARING AT PAGE 562 OF THE ASSESSE ES PAPER BOOK, THEREFORE, THE ASSESSMENT ORDER DATED 30.12.2009 IS BARRED BY LIMITATION AS ACCORDING TO THE ACT THE ASSESSMENT ORDER IS REQUIRED TO BE SERVED BY 31.12.2009. SHE FURTHER SUBMITS THAT THE LD. CIT (A) HAS ERRED IN OBSERVING THAT THE ASSESSMENT ORDER HA S BEEN PASSED ON 31.12.2009 AND THE SAME HAS BEEN DISPATCHED UNDER SPEED POST ON 30.12.2009. SHE FURTHER SUBMITS THAT SINCE THE ASSESSMENT ORDER W AS NOT PASSED WITHIN THE TIME LIMIT AS PRESCRIBED UND ER THE ACT, THE ORDER PASSED BY THE AO IS BARRED BY LIMITATION AND MAY BE CANCELLED. THE RELIANCE WAS ALSO PLACED ON THE DECISION OF AL JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF SHANTILAL GODAWAT AND ORS. V. ACIT (2009) 30 DTR 413, WHEREIN IT HAS BEEN HELD THAT THE ASSESSMENT ORDER PASSED ON 28.12.2007 BUT SERVED ON 2.1.2008, BEYOND THE PERIOD OF LIMITATION OF 31.12.2007 WAS BARRED BY LIMITATION AND THUS NON-EST IN LAW. ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 4 6. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE ASSESSMENT ORDER DATED 30.12.2009 WAS PASSED WITHIN TIME LIMIT AND THE POSTAL RECEIPT REFERRED BY HE ASSESSEES COUNSEL IS MERELY A MOVEMENTS OF ARTICLE FROM CHURCHGATE POST OFFICE TO VASHI POST OFFICE WHICH DO NOT SHOW THAT THE SAME WAS ACTUALLY DISPATCHED ON 1.1.2010 AND, THEREFORE, THE ASSESSMENT ORDER PASSED BY THE AO IS WITHIN TIME LIMIT AND HENCE THE GROUND TAKEN BY THE ASSESSEE BE REJECTED. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND THAT THERE IS NO DISPUTE THAT THE IMPUGNED ASSESSMENT ORDER WAS PASSED ON 30.12.2009. IT IS ALSO NOT IN DISPUTE THAT THE SAME WAS RECEIVED BY THE ASSESSEE WITHIN THREE DAYS I.E. ON 2.1.2010. UNDER THE PROVISIONS OF SECTION 153 OF THE ACT IT HAS BEEN MENTIONED THAT THE ORDER OF ASSESSMENT HAS TO BE MADE WITHIN TWENTY ONE MONTHS FROM THE END OF THE RELEVANT ASSESSMENT YEAR I.E. I N THE CASE OF THE ASSESSEE ON OR BEFORE 31.12.2009. I T IS NOT NECESSARY THAT THE ORDER OF THE ASSESSMENT SHOU LD ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 5 BE COMMUNICATED TO THE ASSESSEE OR THAT NOTICE OF DEMAND IN PURSUANCE THEREOF SHOULD BE SERVED ON HI M WITHIN THE ABOVE PERIOD. THE ASSESSEE PLACED NO MATERIAL ON RECORD TO SHOW THAT THE ORDER OF ASSESSMENT WAS NOT PASSED ON 30.12.2009. MERELY BECAUSE ACCORDING TO THE ASSESSEE THAT WAS DISPATCH ED ON 1.1.2010 DOES NOT MEAN THAT THE ASSESSMENT ORDE R WAS PASSED AFTER THE STATUTORY TIME LIMIT PROVIDED UNDER THE ACT. 8. IN B.J. SHELAT V. STATE OF GUJARAT, AIR 1978 SC 1109, IT HAS BEEN HELD (AT PAGE 471) : THE QUESTION AS TO WHEN AN ORDER CAN BE STATED TO HAVE BEEN MADE WAS THE SUBJECT OF CONSIDERATION BY THIS COURT IN GOVERNMENT WOOD WORKSHOP V. STATE OF KERALA [1988] 69 STC 62 ; [1987] 1 KLT 804 IN WHICH THIS COURT STATED, AFTER RELYING ON VARIOUS DECISIONS OF THE SUPREME COURT CULMINATING IN B.J. SHELAT V. STATE OF GUJARAT, AIR 1978 SC 1109, AS FOLLOWS (AT PAGE 69) : 'THE ORDER OF ANY AUTHORITY CANNOT BE SAID TO BE PASSED UNLESS IT IS IN SOME WAY PRONOUNCED OR PUBLISHED OR THE PARTY AFFECTED HAS THE MEANS OF KNOWING IT. IT IS NOT ENOUGH IF THE ORDER IS MADE, SIGNED, AND KEPT IN THE FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANGE AT THE HANDS OF THE AUTHORITY WHO MAY MODIFY IT, OR EVEN DESTROY IT, BEFORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING OR CHANGE OF OPINION. TO MAKE THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERNED, FOR ANY POSSIBLE CHANGE OR ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 6 MODIFICATION THEREIN. THIS SHOULD BE DONE WITHIN THE PRESCRIBED PERIOD, THOUGH THE ACTUAL SERVICE OF THE ORDER MAY BE BEYOND THAT PERIOD .' (EMPHASIS SUPPLIED) RESPECTFULLY FOLLOWING THE SAME AND IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE ORDER PASSED BY THE AO WAS NOT MADE ON 30.12.2009, WE HOLD THAT THE ORDE R PASSED BY THE AO WAS WITHIN THE LIMITATION AND NOT BARRED BY LIMITATION. THE PLEA TAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE IS WITHOUT ANY MERIT, AND, HENCE, THE SAME IS REJECTED. 9. GROUND NO.2 READS AS UNDER : 2. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE AOS ORDER EVEN THOUGH IT WAS WHOLLY IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE SINCE THE AO HAD FAILED TO DEAL WITH THE DETAILED SUBMISSION MADE BY THE APPELLANT ON 22.12.2009 IN RESPONSE TO HIS SHOW CAUSE NOTICE DATED 14.12.2009. 10. AT THE TIME OF HEARING, THE LD. COUNSEL FOR TH E ASSESSEE SUBMIT THAT SHE DOES NOT WANT TO PRESS THE ABOVE GROUND WHICH WAS NOT OBJECTED TO BY THE LD. D R. 11. THAT BEING SO AND IN THE ABSENCE OF ANY OTHER SUPPORTING MATERIALS PLACED ON RECORD BY THE LEARNE D ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 7 COUNSEL FOR THE ASSESSEE, WE REJECT THE ABOVE GROUN D TAKEN BY THE ASSESSEE BEING NOT PRESSED. 12. GROUND NO.3,4,5 READ AS UNDER : 3. BECAUSE, THE LD.CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE ORDER PASSED THE AO WHICH DISALLOWED THE CLAIM OF EXEMPTION FROM TAX U/S 80IB(11) OF THE INCOME TAX ACT, 1961 WHICH WAS A CHANGE OF OPINION FROM HIS PREDECESSOR (AOS). 4. BECAUSE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN DISALLOWING THE CLAIM OF DEDUCTION U/S 80(IB)(11) ALTHOUGH NO DIFFERENT VIEW COULD HAVE BEEN TAKEN IN, VIEW OF THE DOCTRINE OF MERGER WHEREIN FOR THE EARLIER YEARS THE LD. CIT(A) HAD HIMSELF GRANTED PARTIAL DEDUCTION U/S 80IB(11) OF THE ACT. 5. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONCURRING WITH THE AO THAT THE COLD STORAGE PLANT WAS NOT OPERATIONAL BEFORE 1.4.2004 MERELY BECAUSE EXPANSION WAS UNDERTAKEN IGNORING THE FACT THAT THE EXEMPTION U/S 80IB(11) IS AVAILABLE COLD STORAGE FACILITY WISE AND NOT COLD STORAGE PLANT WISE AND ALSO IGNORING THAT HE HAS HIMSELF ACCEPTED THE OPERATIONS OF THE COLD STORAGE IN THE PRIOR YEARS. 13. BRIEF FACTS OF THE ABOVE ISSUE ARE THAT THE AO NOTED THAT AS PER THE AUDIT REPORT IN FORM NO.10CC B THE DATE OF COMMENCEMENT OF OPERATION BY THE UNDERTAKING IS MENTIONED AS 1.1.2003 AND THE INITI AL YEAR FROM WHICH DEDUCTION IS BEING CLAIMED AS ASSESSMENT YEAR 2004-05 WITHOUT SEPARATELY ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 8 SPECIFYING THE DATE OF COMMENCEMENT OF OPERATION UNDER CLAUSE (11) AND (11A) OF SECTION 80IB. THE ASSESSEE CLAIMED THAT ITS BUSINESS WAS SET UP FROM 1.1.2003 WHEREAS THE OPERATIONS COMMENCED FROM APRIL 2003 AND THEREFORE THE FIRST YEAR OF CLAIM U/ S 80IB WAS ASSESSMENT YEAR 2004-05. THE AO HIGHLIGHTED THAT IN THE AUDIT REPORT IN FORM 10CC B THE DATE OF COMMENCEMENT OF OPERATION IS MENTIONED AS 1.1.2003 I.E. ASSESSMENT YEAR 2003-04 WHILE IN AUDIT REPORT FOR THE ASSESSMENT YEAR 2005-06 THE INITIAL YEAR OF CLAIM OF DEDUCTION IS STATED AS ASSESSMENT YEAR 2005-06 AND, HENCE, IN THE AOS OPINION THE INITIAL ASSESSMENT YEAR IS 2005-06 FO R CLAIM OF DEDUCTION U/S 80IB, THE SAME FALLS BEYOND THE PERIOD (I.E. AFTER 1.4.2004) AND HENCE THE DEDUCTIO N IS NOT ADMISSIBLE U/S 80IB. THE AO FURTHER NOTED THAT THE ASSESSEE HAD MADE ADDITION TO ASSETS DURING T HE YEAR TO THE BUILDING AND COOLING UNIT WHICH IS CLAI MED TO BE EXPANSION OF THE EXISTING COLD STORAGE FACILI TY. AS PER PLAN SUBMITTED TO TOWN PLAN AUTHORITY THE APPROVAL WAS TAKEN FOR CONSTRUCTING THREE INTEGRATE D FACILITIES CONSISTING OF STORAGE, COLD STORAGE AND DEEP FREEZER WHICH IS INTERCONNECTED AND THE ASSESSEE HA D ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 9 COMPLETED ONLY A PART OF THE ORIGINAL PLAN. THE COMPLETE INTEGRATED UNIT IS STILL TO BE COMPLETED. THE ASSESSEE HAS MADE ANOTHER FACILITY OPERATIONAL DURI NG THE YEAR AND IT HAS INTEGRATED THE SECOND FACILITY WITH FIRST HAVING COMMON INFRASTRUCTURE FACILITY ARE INTERCONNECTED AND HENCE IN HIS OPINION ALL UNITS ARE PART OF COLD STORAGE UNIT WHICH IS INCOMPLETE. THE AO FURTHER OBSERVED THAT AS PER DRAWING PLAN THERE IS ONE MORE FACILITY YET TO BE INTEGRATED AND THUS COLD STORAGE FACILITY IS NOT COMPLETED AS ON DATE. THE ASSESSEE COULD NOT FURNISH THE BREAK UP OF REVENUE RELATED BY THE COLD CHAIN FACILITY OPERATIONAL BEF ORE 1.4.2004 AND THE SECOND FACILITY ADDED DURING THE YEAR. THE AO STATED THAT OPERATION OF COLD CHAIN FACILITY IN PART IS NOT CONCEIVED BY SECTION 80I B(11) SINCE THE UNDERTAKING HAS TO BE SET UP AND OPERATED BEFORE 1.4.2004 WHILE IN THIS CASE IT WAS YET NOT COMPLETED. THE AO ALSO NOTED THAT IN THE RETURN FO R THE ASSESSMENT YEAR 2006-07 THE ASSESSEE HAD SHOWN WORK-IN-PROGRESS OF UNIT-2 WHICH IS NOW SHOWN AS ADDITION TO FIXED ASSET. THE ASSESSEE IS HAVING SIN GLE BLOCK O LAND ON WHICH IT IS CONSTRUCTING THE COLD STORAGE FACILITY HAVING MULTIPLE UNITS, HAVING COMM ON ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 10 BOOKS OF ACCOUNTS, COMMON COMPUTERIZED BILLING, COMMON OPERATIONAL FACILITIES AS WHOLE AND HENCE TH E AO WAS OF THE OPINION THAT DESPITE HAVING RENTAL INCOME IN PRIOR YEARS FOR PARTIAL COMPLETED FACILIT IES, THE ASSESSEE COMPANY IS STILL IN PROCESS OF ESTABLISHING THE COLD STORAGE CAPACITY AND PROJECT IS STILL INCOMPLETE. THE AO REFERRING TO THE PROVISIO NS OF SECTION 80IB (11) AND 80IB(14)(AA) AND THE DECISI ON OF THE TRIBUNAL OF AGRA BENCH IN THE CASE OF ITO V /S AMBIKA SHEET GRAHA (P) LTD.IN ITA NO.342/AG/2004, DATED 25.4.2008, HELD THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB (11) OF THE ACT. O N APPEAL, THE LD. CIT(A) WHILE AGREEING WITH THE VIE WS OF THE AO UPHELD THE DISALLOWANCE OF DEDUCTION MADE BY THE AO. 14. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THIS IS THE FOURTH YEAR OF CLAIMING DEDUCTION UNDER SECTION ASSESSMENT SECTION 80IB(11) AND SECOND YEAR OF CLAIMING DEDUCTION U/S 80IB(11A) OF THE ACT. IN THE ASSESSMENT ORDERS PASSED U/S 143(3) FOR THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 THE AO HAS ACCEPTED THE FACT ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 11 OF SETTING UP OF COLD CHAIN FACILITY AND ALLOWED DEDUCTION. FURTHER THE LD. CIT(A) HAS CONFIRMED T HE ORDERS PASSED BY THE AO. DURING THE YEAR THE ASSESS EE HAS COMPLETED EXPANSION OF THE EXISTING COLD CHAIN PLANT BY MAKING OPERATIONAL ADDITIONAL CHAMBERS THA T RESULTED IN ADDITION TO PLANT AND MACHINERY AND THE BUILDING IN THE FIXED ASSET SCHEDULE. THE AO HAS DENIED THE EXEMPTION OF CLAIM OF TAX EXEMPTION ON THE GROUND THAT THE ENTIRE PLANT WAS MADE OPERATION AL IN THE IMPUGNED ASSESSMENT YEAR AND HENCE THE ASSESSEE IS DISQUALIFIED FOR THE CLAIM. SHE FURTHER SUBMITS THAT THE TRIBUNAL IN THE ASSESSEE OWN CASE IN M/S JAI JINENDRA COLD STORAGE PVT.LTD. V/S ITO IN ITA NO.325/MUM/2010, ITA NO.1237 AND 1238/MUM/2010, (AYS: 2004-05 TO 2006-07) DATED 11.2.2011 APPEARING AT PAGES 228 TO 230 OF THE ASSESSEES PAPER BOOK H AS ALLOWED THE SIMILAR CLAIM TO THE ASSESSEE. SHE, THEREFORE, SUBMITS THAT THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS AS PROVIDED UNDER THE PROVISIONS OF SECTION 80IB(11) OF THE ACT, THEREFORE, THE CLAIM OF THE ASSESSEE BE ALLOWED. ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 12 15. ON THE OTHER HAND, THE LD.DR WHILE RELYING ON THE ORDER OF THE AO AND LD. CIT(A) FURTHER SUBMITS THAT SINCE THE AO FOR THIS YEAR EXAMINED THE ISSUE IN DETAIL AND HELD THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB (11) WHICH HAS ALSO BEEN UPHELD BY THE LD. CIT(A), THEREFORE, FOR THE REASONS AS MENTIONED IN THE ASSESSMENT YEAR, THE ASSESSEE IS N OT ENTITLED TO THE DEDUCTION U/S 80IB(11) OF THE ACT A ND THE ORDER PASSED BY THE AO AND CONFIRMED BY THE LD . CIT(A) BE UPHELD. 16. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE AO HAS ALLOWED DEDUCTION U/S 80IB (11) FOR THE ASSESSMENT YEARS 2004-05,2005-06 AND 2006-07. MERELY BECAUSE THE ASSESSEE HAS COMPLETED EXPANSION OF THE EXISTIN G COLD CHAIN PLANT BY MAKING OPERATIONAL ADDITIONAL CHAMBERS THAT RESULTED IN ADDITION TO PLANT AND MACHINERY AND THE BUILDING IN THE FIXED ASSET SCHEDULE DOES NOT MEAN THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IB(11) OF THE ACT. WE ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 13 FURTHER FIND THAT THE TRIBUNAL IN ASSESSEES OWN C ASE (SUPRA) VIDE PARAGRAPH 7 OF HIS ORDER HAS HELD AS UNDER : 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. THE MEMORANDUM EXPLAINING THE PROVISIONS AT PAGE 4 OF THE PAPER BOOK READ AS UNDER: UNDER THE EXISTING PROVISIONS OF SECTION 80-IA, A FIVE YEAR TAX HOLIDAY IN RESPECT OF PROFITS AND GAI NS OF AN ASSESSEE OPERATING A COLD STORAGE IN AN INDUSTRIALLY BACKWARD STATE OR IN AN INDUSTRIALLY BACKWARD DISTRICT, IF IT BEGINS TO OPERATE THE COLD STORAGE PLANT BEFORE THE 31ST MARCH, 2000, IS ALLOWED WITH A FURTHER DEDUCTION OF 25% OF PROFITS OF SUCH BUSINESS [30% IN THE CASE OF COMPANIES] FOR THE NEXT FIVE YEARS. THE COMPLEX FOOD CHAIN FROM THE PRODUCER TO THE CONSUMER, INVOLVES VARIOUS INTERMEDIARIES FOR HANDLING AND PROCESSING. THE LOSS AND WASTAGE OF PERISHABLE AGRICULTURAL PRODUCE , VEGETABLES AND SIMILAR COMMODITIES CONTINUES TO BE HIGH. IN ORDER TO MINIMIZE SUCH LOSS AND TO ENSURE SMOOTH AND UNIFORM DISTRIBUTION OF AGRICULTURAL AND PROCESSED PRODUCTS, IT IS PROPOSED TO PROVIDE 100% TAX HOLIDAY FOR A PERIOD FIVE YEARS AND 25% [30% IN CASE OF COMPANIES] DEDUCTION FROM PROFITS DERIVED FROM OPERATING A COLD CHAIN FACILITY WHICH STARTS OPERATING AFTER THE 1ST DAY OF APRIL, 1999, IS PROPOSED TO BE ALLOWED FOR A FURTHER PERIOD OF FIVE YEARS. THE PROPOSED AMENDMENT WILL TAKE EFFECT FROM THE 1ST DAY OF APRIL, 2000, AND WILL, ACCORDINGLY, APPL Y IN RELATION TO ASSESSMENT YEAR 2000- 2001 AND SUBSEQUENT YEARS. THE ABOVE CLEARLY SHOWS THAT DEDUCTION IS MEANT FOR AGRICULTURAL AND PROCESSED PRODUCTS. NATURALLY THE PROCESSING PRODUCTS OF EDIBLE ITEMS WOULD ALSO BE COVERED BY THIS PROVISION. IN OUR VIEW, ITEMS ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 14 LIKE BUTTER, PARATHA BOX WHICH IS MADE OF FLOUR AND KNOWN AS PRESERVED EATABLES OR TOMATO PUREE, DEFINITELY CAN BE CALLED PROCESSED AGRICULTURAL PRODUCTS AND, THEREFORE, SAME WOULD BE COVERED U/S.80IB(11). AT THE SAME TIME, ITEMS LIKE MEDICINES WOULD NOT BE COVERED BY THIS PROVISION, BECAUSE MEDICINES HAVE NOTHING TO DO WITH AGRICULTURE. THEREFORE, WE SET ASIDE THE ORDER O THE LD. CIT[A] AND DIRECT THE AO TO ALSO ALLOW DEDUCTION IN RESPECT OF PROCESSED FOODS OR OTHER PROCESSED PRODUCTS WHICH ARE OF EDIBLE NATURE LIKE LONI BOX, PULP, PARATHA BOX, KHAWA ETC. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGH T ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) AND KEEPING IN V IEW THE RULE OF CONSISTENCY, SET ASIDE THE ORDERS PASS ED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE AO TO FOLLOW THE ORDER PASSED BY THE TRIBUNAL (SUPRA) AND ALLOW DEDUCTION U/S 80IB (11) OF THE ACT AS PER DIRECTI ONS GIVEN BY THE E TRIBUNAL (SUPRA) WE HOLD AND ORDER ACCORDINGLY. THE GROUNDS TAKEN BY THE ASSESSEE ARE , THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 17. GROUND NOS.6 AND 7 READ AS UNDER : 6. BECAUSE THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN SUSTAINING THE DISALLOWANCE OF THE CLAIM OF EXEMPTION U/S 80IB (11A) OF THE ACT HOLDING THAT THE APPELLANT HAS ONLY TRADED IN FRUITS AND VEGETABLES AND NOT PROCESSED THE SAME, IGNORING THE PLETHORA OF EVIDENCE FILED IN THIS REGARD. ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 15 7. BECAUSE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT ALL DETAILS AS REQUIRED IN THE REPORT IN FORM 10CCB BY THE AUDITOR HAVE NOT BEEN FINISHED, THEREBY JUSTIFYING THE DISALLOWANCE OF DEDUCTION U/S 80IB(11) & (11A) IGNORING THE FACT THAT THERE IS NO REQUIREMENT OF SPECIFYING THE SUB-SECTION WISE AMOUNT OF CLAIM. MOREOVER, THE SEPARATE PROFIT AND LOSS ACCOUNT WAS MAINTAINED AND SUBMITTED BEFORE THE LD.AO FOR PROFITS OF BOTH THE BUSINESSES. 18. BRIEF FACTS OF THE ABOVE ISSUE ARE THAT THE AO OBSERVED THAT AS PER THE DETAILS AVAILABLE IN THE R ETURN OF INCOME AND FORM 3CD IT IS NOTED THAT THERE IS NO WEIGHT WISE SHORT FALL ACCOUNTED FOR DUE TO WASTAG E ETC. BY WAY OF REMOVAL OF SEEDS, SKIN OR NON CONSUMABLE PART OF FRUITS AND VEGETABLE IN THE ITEM S PROCESSED, SINCE THE FIGURES OF PURCHASE, SALES AND CLOSING STOCK ARE PERFECTLY MATCHING. THE AO ALSO NOTED THAT MANGO PULP PURCHASE DID NOT FALL UNDER T HE CATEGORY OF FRUITS/VEGETABLE. THE AO ALSO NOTED TH AT IN THE FROZEN FOODS ONLY TRADING HAS BEEN DONE. TH E AO FURTHER NOTED THAT THE BLAST FREEZER I.E. THE ONLY PLANT AND MACHINERY CLAIMED TO BE USED FOR FOOD PROCESSING UNIT IS ADDED IN ASSESSMENT YEAR 2006-07 WHILE THE DATE OF COMMENCEMENT OF OPERATION BEING ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 16 1.1.2003 WITH INITIAL YEAR 2004-05 CANNOT BE CLAIM ED. THE AO ASKED THE ASSESSEE TO PROVE UNIT-WISE/ ACTIV ITY WISE BOOKS OF ACCOUNTS IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED BEFORE THE AO THAT SINCE THERE I S COMMONALITY IN BOOKS OF ACCOUNTS AND THE FINANCIAL TRANSITIONS IT IS DIFFICULT TO SEGREGATE THE REVEN UE AND COST WITH PRECISION VIDE ASSESSEES LETTERS DATED 16.11.2009 AND 23.11.2009. THE AO AFTER REFERRING THE PROVISIONS OF SECTION 80IA(VIII) AND THE TAX AU DIT REPORT IN FORM NO.10CCB HELD THAT THE DEDUCTION UND ER SECTION 80IB(11A) IS ALSO NOT ADMISSIBLE TO THE ASSESSEE. ON APPEAL, THE LD. CIT(A) OBSERVED THAT THE AO RAISED AN IMPORTANT POINT REGARDING THE NON RECORDING OF LOSS WHEN PROCESSING IS CLAIMED BY THE ASSESSEE. FOR EXAMPLE, IN THE CASE OF CARROT CLAIME D TO HAVE BEEN PROCESSED THE PURCHASES ARE 300 KGS. AS WELL AS THE SALES AND CLOSING STOCK ARE 130+17 0 KGS. MEANING THEREBY THAT THERE IS NO PRODUCTION LO SS. THE APPELLANT EVEN WITH REFERENCE TO THE LEDGER ACCOUNT PRODUCED BEFORE HIM FAILED TO EXPLAIN AS TO HOW IN PROCESSING THERE IS NO LOSS ON ACCOUNT OF PEELING, SKINNING ETC.. THEREFORE, THE LD. CIT(A) W HILE AGREEING WITH THE VIEWS OF THE AO THAT THE QUANTIT Y ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 17 DETAILS AS MENTIONED IN FORM 10CCB ARE NOT AS PER T HE REQUIREMENT GIVEN THEREIN WHICH HAS BEEN DISCUSSED IN DETAIL IN THE ASSESSMENT ORDER, CONFIRMED THE ORDE R PASSED BY THE AO. 19. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE AO AND THE LD. CIT(A) IN SUPPO RT OF THE ASSESSEES CLAIM U/S 80IB(11A), RELIED ON TH E FOLLOWING DOCUMENTS APPEARING AT PAGES 338 TO 531 OF THE ASSESSEES PAPER BOOK:- I) A COPY OF PROCESS CHART PREPARED AND A COPY OF PROCESS CHART PREPARED AND EXPLAINED BY SHRI. HARSHAD DOSHI, CIVIL ENGINEER. II) A COPY OF LETTER DATED 9/11/2009 FILED BEFORE THE LD. ITO WARD 10(3)(3) MENTIONING THE FACT OF VISUALIZING THE VIDEO SHOOTING. III) COPY OF VAT AUDIT REPORT REQUIRED UNDER MAHARASHTRA VALUE ADDED TAX ACT, 2002 FOR ASSESSMENT YEAR 2007-08, ASSESSMENT YEAR 2008-09 IV) COPY OF FPO LICENSE ISSUED BY THE GOVERNMENT OF INDIA DATED 17.12.2004. V) COPY OF TRADE MARK CERTIFICATE OBTAINED UNDER THE TRADE MARK ACT, 1999 DATED 28.10.2005. VI) COPY OF FDA LICENSE ISSUED BY FOODS AND DRUGS ADMINISTRATION OF MAHARASHTRA DATED 19.7.2004. ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 18 VII) COPY OF PACKING MATERIAL RECEIVED FOR PACKING THE PROCESSED FRUITS AND VEGETABLES. VIII)COPIES OF LEDGER ACCOUNTS FOR PURCHASES MADE ALONG WITH SAMPLES BILLS. IX) COPIES OF SAMPLE PURCHASE BILLS WITH RESPECT TO PURCHASE OF FIXED ASSETS IN RESPECT OF FOOD DIVISION. X) COPY OF LEDGER ACCOUNT OF LABOUR/PROCESSING EXPENSES INCURRED DURING THE PERIOD; SHE, THEREFORE, SUBMITS THAT IN THE LIGHT OF THE ABOVE DOCUMENTARY EVIDENCE THE CLAIM MADE BY THE ASSESSEE U/S 80IB(11A) BE ALLOWED. THE RELIANCE WAS ALSO PLACED ON FOLLOWING DECISIONS : I) CHILLIES EXPORTS HOUSE LTD. V/S CIT (1997) 225 ITR 814 (SC) II) CIT V/S ORICON P.LTD. (1985) 151 ITR 296(BOM) III) CIT V/S STERLING FOODS (GOA) (1995) 213 ITR 851 (BOM). IV) G.A. RENDERIAN LTD. V/S CIT (1984) 145 ITR 387 (CAL) V) CIT V/S ASHWINKUMAR GORDHANBHAI AND BROS. PVT. LTD. (1995) 212 ITR 614 (GUJ) VI) ADDL.CIT V/S FARRUKHABAD COLD STORAGE (P.) LTD. (1977) 107 ITR 816 (ALL) 20. ON THE OTHER HAND, THE LD. DR SUBMITS THAT IN VIEW OF THE REASONS RECORDED BY THE AO AT PAGES 6 T O ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 19 10 OF THE ASSESSMENT ORDER, THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION U/S 80IB(11A) OF THE ACT AND THE LD. CIT(A) WAS FULLY JUSTIFIED IN CONFIRMING TH E ORDER PASSED BY THE AO AND THEREFORE, THE ORDER PASSED BY THE AO BE UPHELD. 21. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(11A) ON THE GROUND THAT THE ASSESSEE IS ALSO DERIVING PROFIT FROM THE BUSINESS OF PROCESSING, PRESERVING AND PACKING OF FRUITS AND VEGETABLES ENTITLED TO DEDUCTION U/S 80IB(11A) OF THE ACT WHICH WAS DENIED BY THE REVENUE AUTHORITIES ON THE GROUND THAT THE ASSESSEE HAS ONLY TRADED IN FRUITS AND VEGETABLES AND NOT PROCESSED THE SAME. W E FURTHER FIND THAT FOR CLAIMING DEDUCTION U/S 80IB (11A), THE ASSESSEE IS REQUIRED TO FULFILL CERTAIN CONDITIONS. ACCORDING TO SAMPATH IYENGARS LAW OF INCOME TAX, 11 TH EDITION AT PAGE 7101 IN PARAGRAPH 37, THE POLICY AND ITS IMPLEMENTATION IS AS UNDER: 37. POLICY AND ITS IMPLEMENTATION-THE ENTIRE SCHEME COVERED BY SECTION 8O-IB(11A) RELATES TO SERVICES IN CONNECTION WITH PRESERVATION OF FOOD ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 20 GRAINS PROMOTED BY THE GOVERNMENT OF INDIA UNDER TFC-14/99-VOLUME III, DATED 4TH JULY, 2000 FOLLOWING THE NATIONAL POLICY IN RESPECT OF HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS. IT RELATES TO BOTH CONSTRUCTION CONTRACT AND THE PRESERVATION CONTRACTS ARISING OUT OF A SCHEME SPONSORED BY THE GOVERNMENT OF INDIA ADMINISTERED BY AN AGENCY OF THE STATE GOVERNMENT. IT IS PART OF THE CENTRAL SCHEME UNDER THE IMPLEMENTATION OF FOOD CORPORATION OF INDIA IN PURSUANCE OF THE NATIONAL POLICY FOR HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS. SECTION 80-IB(11A) TARGETS FOR RELIEF FOR THE BUSINESS OF PROCESSING PRESERVATION AND PACKAGING OF FRUITS AND VEGETABLES AS NEWLY ADDED FROM AY 2005-2006, WHILE THE RELIEF HAS BEEN AVAILABLE WITH EFFECT FROM 1.4.2002 FOR ALL UNDERTAKING, WHICH HAVE BEGUN TO OPERATE ON OR AFTER 1ST APRIL, 2001 FOR ANY INCOME FROM THE INTEGRATED BUSINESS OF HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS USING THE VERY LANGUAGE OF THE POLICY. BOTH THE CONSTRUCTION AS WELL AS THE PRESERVATION CONTRACT ARE SUBJECT TO AN AGREEMENT WITH CENTRAL OR STATE WAREHOUSING CORPORATION IN PURSUANCE OF THE POLICY AND THE OTHER PAPERS ISSUED FROM TIME TO TIME BY THE GOVERNMENT. BENEFIT OF DEDUCTION UNDER SUB-SECTION (11A) OF SECTION 80-LB HAS BEEN EXTENDED WITH EFFECT FROM 1.4.2010 THAT IS AY 2010-2011 BY THE FINANCE (NO.2) ACT, 2009 TO THE BUSINESS OF PROCESSING, PRESERVATION AND PACKAGING OF MEAT AND MEAT PRODUCTS OR POULTRY OR MARINE OR DAIRY PRODUCTS TO THE SAME EXTENT AND SUBJECT TO THE SOME CONDITIONS AS PREVAILING IN SUB-SECTION PRIOR TO TH IS AMENDMENT. WE FURTHER FIND THAT IN THE PAPER BOOK, THE ASSESS EE HAS FILED VARIOUS DOCUMENTS APPEARING AT PAGES 338 TO 531 OF THE ASSESSEES PAPER BOOK. HOWEVER, THER E ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 21 IS NO MATERIAL ON RECORD TO SHOW AS TO WHETHER THE AO WHILE COMPLETING THE ASSESSMENT HAS EXAMINED ALL TH E CONDITIONS U/S 80IB(11A) AND THE AFORESAID EVIDENCE S SUBMITTED BY THE ASSESSEE. IN THIS VIEW OF THE MAT TER, WE ARE OF THE VIEW THAT IN THE INTERESTS OF JUSTIC E THE MATTER SHOULD GO BACK TO THE FILE OF THE AO AND ACCORDINGLY, WE SET ASIDE THE ORDERS PASSED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEND BACK T HE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AF RESH IN THE LIGHT OF OUR OBSERVATIONS HEREINABOVE AND ACCORDING TO LAW INCLUDING THE DECISIONS (SUPRA) RE LIED ON BY THE LD. COUNSEL FOR THE ASSESSEE AND THE DECISION OF THE HONBLE SUPREME COURT IN DELHI COLD STORAGE P. LTD. V/S CIT (1991) 191 ITR 656 (SC) AF TER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE AR E, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES . ITA NO. 2585/MUM/2011 (AY: 2008-09) 22. GROUND NO.1 READS AS UNDER : 1. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE ORDER PASSED BY THE AO ALTHOUGH HE DID NOT POSSES JURISDICTION IN OUR CAS E ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 22 AS THE SAME VESTED WITH THE LD.ITO WARD 10(3)-3 WHO HAD PASSED THE ORDER ALSO FOR AY 2007-08. 23. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09 WAS PASSED BY THE ITO 10(3)(4) WHEREAS THE JURISDICTION OF THE ASSESSEE W AS WITH ITO 10(3)(3) AS PER THE ASSESSMENT ORDER OF T HE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2007-08. SHE FURTHER SUBMITS THAT IN THE ABSENCE OF ANY ORDER PASSED U/S 127 OF THE ACT, THE IMPUGNED ASSESSMENT ORDER PASSED BY THE AO IS WITHOUT ANY JURISDICTION AND HENCE THE SAME BE QUASHED. 24. ON THE OTHER HAND, THE LD. DR SUPPORTS THE ORDERS OF THE AO AND THE LD. CIT(A). 25. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND THAT THE LD. CIT(A) HAS REJECTED TH E ASSESSEES GROUND ON THE PLEA THAT SINCE THE JURISDICTION HAS PROPERLY BEEN ASSIGNED BY THE INC OME TAX AUTHORITIES TO THE RANGE, HENCE, THE OBJECTION OF THE APPELLANT IS MIS-FOUNDED AND HENCE REJECTED. IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 23 RECORD BY THE LD. COUNSEL FOR THE ASSESSEE AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A), THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, REJECTED. 26. GROUND NO.2 READS AS UNDER : 2. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE AOS ORDER EVEN THOUGH IT WAS WHOLLY IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE SINCE THE AO HAD FAILED TO DEAL WITH THE DETAILED SUBMISSION MADE BY THE APPELLANT ON 12.8.2010 IN RESPONSE TO HIS SHOW CAUSE NOTICE DATED 29.7.2010. 27. AT THE TIME OF HEARING, THE LD. COUNSEL FOR TH E ASSESSEE SUBMIT THAT SHE DOES NOT WANT TO PRESS THE ABOVE GROUND WHICH WAS NOT OBJECTED TO BY THE LD. D R. 28. THAT BEING SO AND IN THE ABSENCE OF ANY OTHER SUPPORTING MATERIALS PLACED ON RECORD BY THE LEARNE D COUNSEL FOR THE ASSESSEE, WE REJECT THE ABOVE GROUN D TAKEN BY THE ASSESSEE BEING NOT PRESSED. 29. GROUND NO.3,4,5 READ AS UNDER : 3. BECAUSE, THE LD.CIT(A) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE ORDER PASSED THE AO WHICH DISALLOWED THE CLAIM OF EXEMPTION FROM TAX U/S 80IB(11) OF THE INCOME TAX ACT, 1961 WHICH WAS A CHANGE OF OPINION FROM HIS PREDECESSOR (I.E.AOS). 4. BECAUSE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN DISALLOWING THE CLAIM OF DEDUCTION U/S 80(IB)(11) ALTHOUGH NO DIFFERENT VIEW COULD HAVE ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 24 BEEN TAKEN IN, VIEW OF THE DOCTRINE OF MERGER WHEREIN FOR THE EARLIER YEARS THE LD. CIT(A) HAD HIMSELF GRANTED PARTIAL DEDUCTION U/S 80IB(11) OF THE ACT. 5. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONCURRING WITH THE AO THAT THE COLD STORAGE PLANT WAS NOT OPERATIONAL BEFORE 1.4.2004 MERELY BECAUSE EXPANSION WAS UNDERTAKEN IGNORING THE FACT THAT THE EXEMPTION U/S 80IB(11) IS AVAILABLE COLD STORAGE FACILITY WISE AND NOT COLD STORAGE PLANT WISE AND ALSO IGNORING THAT HE HAS HIMSELF ACCEPTED THE OPERATIONS OF THE COLD STORAGE IN THE PRIOR YEARS. 30. AT THE TIME OF HEARING, BOTH THE PARTIES HAVE AGREED THAT THE FACTS OF THE PRESENT ISSUE RAISED IN THE ABOVE GROUNDS ARE SIMILAR TO THE FACTS OF THE ISSUE INVOLVED IN GROUNDS NOS.3,4, AND 5 IN ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2007-08, THEREFORE, THE PLEA TAKEN BY THEM IN THAT APPEAL M AY BE CONSIDERED WHILE DECIDING THE ABOVE GROUNDS TAK EN BY THE ASSESSEE. 31. AFTER HEARING THE RIVAL PARTIES AND PERUSING TH E MATERIAL AVAILABLE ON RECORD AND IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY T HE REVENUE WE KEEPING IN VIEW OF OUR FINDINGS RECORDED IN THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2007-08 IN PARAGRAPHS 16 OF THIS ORDER DIRECT THE AO ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 25 TO ALLOW THE SAME AS PER DIRECTIONS GIVEN BY THE TRIBUNAL (SUPRA). WE HOLD AND ORDER ACCORDINGLY. T HE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 32. GROUND NOS.6 AND 7 READ AS UNDER : 6. BECAUSE THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN SUSTAINING THE DISALLOWANCE OF THE CLAIM OF EXEMPTION U/S 80IB (11A) OF THE ACT HOLDING THAT THE APPELLANT HAS ONLY TRADED IN FRUITS AND VEGETABLES AND NOT PROCESSED THE SAME, IGNORING THE PLETHORA OF EVIDENCE FILED IN THIS REGARD. 7. BECAUSE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT ALL DETAILS AS REQUIRED IN THE REPORT IN FORM 10CCB BY THE AUDITOR HAVE NOT BEEN FINISHED, THEREBY JUSTIFYING THE DISALLOWANCE OF DEDUCTION U/S 80IB(11) & (11A) IGNORING THE FACT THAT THERE IS NO REQUIREMENT OF SPECIFYING THE SUB-SECTION WISE AMOUNT OF CLAIM. MOREOVER, THE SEPARATE PROFIT AND LOSS ACCOUNT WAS MAINTAINED AND SUBMITTED BEFORE THE LD.AO FOR PROFITS OF BOTH THE BUSINESSES. 33. AT THE TIME OF HEARING, BOTH THE PARTIES HAVE AGREED THAT THE FACTS OF THE PRESENT ISSUE RAISED IN THE ABOVE GROUNDS ARE SIMILAR TO THE FACTS OF THE ISSUE INVOLVED IN GROUNDS NOS.6 AND 7 IN ASSESSEE S APPEAL FOR THE ASSESSMENT YEAR 2007-08, THEREFORE, THE PLEA TAKEN BY THEM IN THE SAID ASSESSMENT YE AR ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 26 MAY BE CONSIDERED WHILE DECIDING THE ABOVE GROUNDS OF APPEAL. 34. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. IN THE ABSENCE OF ANY DISTINGUISHING FEATU RE BROUGHT ON RECORD BY THE PARTIES AND KEEPING IN V IEW THAT THE FACTS THE PLEA TAKEN BY THE ABOVE PARTIES ARE SIMILAR TO THE FACTS OF THE ABOVE ISSUES INVO LVED IN GROUND NOS.6 AND 7 FOR THE ASSESSMENT YEAR 200 7- 08, WE RESTORE THIS ISSUE TO THE FILE OF THE AO TO FOLLOW OUR FINDINGS RECORDED IN THE PARAGRAPH 21 O F THIS ORDER. WE HOLD AND ORDER ACCORDINGLY. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 35. IN THE RESULT, THE ASSESSEES APPEALS STAND PAR TLY FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH FEB., 201 2. SD SD (R.S. SYAL) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 8TH FEBRUARY, 2012 SRL: ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 27 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 28 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, J, MUMBAI BEFORE SHRI R.S. SYAL (A.M.) AND SHRI D.K.AGARWAL ( JM) ITA NO.2584 AND 2585/MUM/2011 (ASSESSMENT YEARS: 2007-08 AND 2008-09) M/S JAI JINENDRA COLD STORAGE PVT.LTD., E-97, ONION POTATO DIVISION, APMC MARKET YARD, TURBHE, NAVI MUMBAI-400703, PAN: AABCJ0852F INCOME TAX OFFICER 10(3)(3), MUMBAI APPELLANT V/S RESPONDENT CORRIGENDUM IN THE ORDER PASSED BY THE ITAT, MUMBAI BENCHES J MUMBAI IN THE ABOVE APPEALS IN ITA NO.2584 AND 2585/MUM/2011 FOR ASSESSMENT YEARS 2007-08 AND 2008 -09 DATED 8.2.2012, IN PARAGRAPH 35 AT PAGE NO.26 FOR IN THE RESULT, THE ASSESSEES APPEALS STAND PARTLY FOR STA TISTICAL PURPOSE READ IN THE RESULT, THE ASSESSEES APPEALS STAND PARTLY ALLOWED FOR STATISTICAL PURPOSE. SD SD (R.S. SYAL) (D.K.AGARW AL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 29TH TH FEBRUARY, 2012 ITA NO.2584 AND 2585/MUM/2011 (AY: 2007-08 AND 2008-09) 29 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY OR DER TRUE COPY ASSTT.REGISTRAR, IT AT, MUMBAI