Balaji Polymers, SILVASSA V. The Income tax Officer,Ward-3, Vapi

ITA 2623/AHD/2009

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85556 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 22-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K SINGH SR DR
• Section: 80IB

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2623/AHD/2009 [ASSTT.YEAR : 2005-2006] BALAJI POLYMERS S.NO.132/1/4 B/H. PRINCE PLASTIC ATHAL, SILVASSA PIN : 396 230. /VS. ITO, WARD-3 VAPI. ITA NO.2211/AHD/2010 [ASSTT.YEAR : 2006-2007] ITO, WARD-3 VAPI. /VS. BALAJI POLYMERS S.NO.132/1/4 B/H. PRINCE PLASTIC ATHAL, SILVASSA PIN : 396 230. ( (( ( -. -. -. -. / APPELLANT) ( (( ( /0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 ) / ASSESSEE BY : SHRI TUSHAR HEMANI + 2 3 ) / REVENUE BY : SHRI M.K. SINGH, SR.DR 5 2 &(* / DATE OF HEARING : 8 TH DECEMBER, 2014 678 2 &(* / DATE OF PRONOUNCEMENT : 09-01-2015 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE APPEALS BY THE ASSESSEE AND THE REVENUE OF THE ASSTT.YEAR 2005-06 AND 2006- 07 ARE DIRECTED ITA NO.2623/AHD/2009 - 2 -2- AGAINST THE ORDER OF THE CIT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.2623/AHD/2009 A.Y.2005-06 (ASSESSEES APPE ALS) 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THE LD.CIT(A) HAS GROSSLY ERRED IN LAW AND THE FACTS IN DISALLOWING AVAILABILITY OF 80IB DEDUCTION OF THE I T ACT, 1961 TO THE FIRM ON CERTAIN ASSUMPTION. 2. THE LD.CIT(A) HAS DISALLOWED 80IB DEDUCTION BECA USE OF PRODUCTION OF SMALL QUANTITY BY THE FIRM IN THE FIN ANCIAL YEAR 2003- 04 WHICH IS NOT FAIR. START OF PRODUCTIONS SUFFICI ENT TO SATISFY ONE OF THE CONDITION OF 80IB BENEFITS AND PRODUCTION SHOUL D START BEFORE 31.3.2004. 3. THE LD.CIT(A)HAS NOT JUSTIFIED THE DISALLOWANCE OF 80IB BENEFITS ON THE GROUND OF FACTORY LICENCE WAS NOT O BTAINED BY THE FIRM. THE FACTORY ACT IS AN INDEPENDENT ACT AND BE NEFITS OF 80IB CANNOT BE DENIED BY TAKING THE SHELTER OF VIOLATION OF OTHER LAWS AND ACTS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS REGARDING CLAIM OF D EDUCTION UNDER SECTION 80IB OF THE ACT. HE SUBMITTED THAT THE DEDUCTION W AS DISALLOWED BY THE REVENUE ON THE PLEA THAT THE ASSESSEE HAS NOT SECUR ED PRODUCTION LICENSE BEFORE THE COMMENCEMENT OF THE PRODUCTION. HE SUBM ITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECIS ION OF ITAT, AHMEDABAD IN ASSESSEES OWN CASE FOR THE SUBSEQUENT ASSTT.YEAR 2007-08 AND THE REVENUES APPEAL IN ITA NO.464/AHD/2011 DAT ED 22/7/2011 WHEREIN THE ISSUE IS DECIDED IN FAVOUR OF THE ASSES SEE. HE SUBMITTED THAT THE ASSESSEE IS WITHIN THE TERRITORIAL JURISDICTION OF THE HONBLE BOMBAY HIGH COURT, BEING A UNIT SITUATED AT SILVASSA AND T HEREFORE, THE DECISION OF THE HONBLE BOMBAY HIGH COURT ON IDENTICAL FACTS IN CIT VS. JOLLY ITA NO.2623/AHD/2009 - 2 -3- POLYMERS IN ITA(L) NO.1622/AHD/2012 ORDER DATED 21. 2.2013 IS BINDING ON THE AHMEDABAD TRIBUNAL. THE LEARNED DR HAS RELI ED ON THE ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ISSUE OF DEDUC TION UNDER SECTION 80IB OF THE ACT IS COVERED IN FAVOUR OF THE ASSESSE E WITH THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT, AHMEDABAD IN ASS ESSEES OWN CASE IN SUBSEQUENT ASSTT.YEAR 2007-08 DATED 22.7.2011 (SUPR A) WHEREIN IT WAS HELD THAT THE ASSESSEE HAS OBTAINED FACTORY LICENSE SUBSEQUENTLY, AND HAS COMMENCED ITS ACTIVITIES WITHIN THE ASSTT.YEAR 2004 -05, THOUGH NOT SIGNIFICANTLY. THE TRIBUNAL IN THIS CASE HAS FOLLO WED THE DECISION OF THE ITAT, MUMBAI BENCH IN ITO VS. JOLLY POLYMERS IN ITA NO.2763/AHD/2010 A.Y.2007-08 DATED 18.3.2011 WHEREI N THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. WE FIND THAT TH E ORDER OF THE ITAT, MUMBAI IN ITO VS. JOLLY POLYMERS DATED 18.3.2011 (S UPRA) HAS BEEN CONFIRMED BY THE HONBLE BOMBAY HIGH COURT IN CIT V S. JOLLY POLYMERS VIDE ORDER DATED 21.2.2013 (SUPRA). IT IS WELL SET TLED THAT SINCE THE ASSESSEE FALLS IN SILVASSA, WITHIN THE TERRITORIAL JURISDICT ION OF HONBLE BOMBAY HIGH COURT, THE DECISION OF THE HONBLE BOMBAY HIGH COURT IS BINDING ON THE ITAT, AHMEDABAD, AND ACCORDINGLY, WE DECIDE IN FAVOUR OF THE ASSESSEE AND THE GROUNDS OF THE APPEAL OF THE ASSES SEE ARE ALLOWED. ITA NO.2211/AHD/2010 A.Y.2006-07 (REVENUES APPEA L) 5. THE ONLY GROUND RAISED IN THIS APPEAL OF THE REV ENUE IS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AN D IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF DEDUCTION U/S.80IB AMOUNTING TO RS.21,24,793/-. ITA NO.2623/AHD/2009 - 2 -4- 6. BOTH PARTIES BEFORE US SUBMITTED THAT THE ISSUE IN THE REVENUES APPEAL IS IDENTICAL WITH THE ISSUE OF DEDUCTION UND ER SECTION 80IB IN THE ASSESSEES APPEAL FOR THE EARLIER ASSTT.YEAR 2005-0 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE FACTS AND CIRCUMSTANCES FOR THIS ASSTT.YEAR 2006- 07 ARE IDENTICAL WITH THE FACTS OF THE CASE OF THE ASSESSEE FOR EARLIER ASSTT.YEAR 2005-06. FOR THE REASONS RECORDED WHIL E ALLOWING THE APPEAL OF THE ASSESSEE FOR THE EARLIER ASSTT.YEAR 2005-06, IN THE FOREGOING PARAS OF THIS ORDER, WE HOLD THAT THERE IS NO MERIT IN THE G ROUND OF APPEAL OF THE REVENUE, WHICH IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE FOR A.Y.20 05-06 IS ALLOWED AND THE APPEAL OF THE REVENUE FOR A.Y.2006-07 IS DISMIS SED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD