The DCIT, Mehsana Circle, Mehsana V. M/s. Jyot Overseas Pvt.Ltd., Mehsana

ITA 2713/AHD/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6425 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 24-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 30-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: JAIMINE SHAH
• Keywords: Reopening of assessment; Rule of consistency; Difference of opinion; Tax effect; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI BHAVNESH SAINI,JM & SHRI A N PAHUJA,AM ITA NO.2713/AHD/2009 WITH CO NO.245/AHD/2009 (ASSESSMENT YEAR:-2001-02) DEPUTY COMMISSIONER OF INCOME-TAX, MEHSANA CIRCLE, MEHSANA V/S M/S JYOT OVERSEAS PVT. LTD., 11, VIDHYANAGAR TWIN BUNGALOWS, NAGALPUR, MEHSANA PAN: AAACJ 4894 L [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI B L YADAV, SR. DR ASSESSEE BY:- SHRI JAIMINE SHAH, AR O R D E R A N PAHUJA: THE APPEAL BY THE REVENUE AND THE CORRESPONDING CROSS-OBJECTION[CO] FILED BY THE ASSESSEE AGAINST AN ORDER DATED 17-07-2009 OF THE LD. CIT(APPEALS), GANDHINAGAR FOR THE ASSESSMENT YEAR 2001-02, RAISE THE FOLLOWING GROUNDS :- ITA NO.2713/AHD/2009 1 THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE DI SALLOWANCE OF RS.31,26,768/- U/S 80IA OF THE I.T. ACT. 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3 IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEAR NED CIT(A) MAY BE SET ASIDE AND THAT F THE AO BE RESTORED TO THE ABOV E EXTENT . CO NO.245/AHD/2009 1. THAT THE APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF LEARNED CIT(A) FOR A.Y.2001-02 WHICH IS REOPENED, A SSESSMENT U/S 143(3) R.W.S. SEC. 147 WHEREAS THE LEARNED CIT(A) X X HAS PASSED FIRST ORDER AGAINST THIS ISSUE VIDE HIS ORDER DATED 19.12.06 FOR A.Y.2003-04 AND CONSIDERING THE SAME, THE APPEAL FI LED BY THE DEPARTMENT BE DISMISSED. 2 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 2 2. THAT THE LEARNED CIT(A) HAS ALSO REFERRED THE DE CISION OF HON'BLE SUPREME COURT IN THE CASE OF ASPINWALL & CO. VS. CI T REPORTED IN 251 ITR PAGE 323 AND, CONSIDERING THE SAME ALSO THE APPEAL OF THE APPELLANT WAS ALLOWED AND CONSIDERING THE SAME, THE APPEAL FILED BY THE DEPARTMENT BE DISMISSED. 3. ON IDENTICAL FACTS AND SAME SET OF CIRCUMSTANCES THE APPEAL OF THE APPELLANT WAS ALLOWED FOR A.Y. 1999-2000 AND CONSID ERING THE SAME ALSO THE APPEAL OF THE DEPARTMENT BE DISMISSED . 4. THAT THE REOPENING OF ASSESSMENT ITSELF IS BAD I N LAW, ILLEGAL AND VOID AND THEREFORE ON THIS GROUND THE APPEAL OF THE DEPARTMENT BE DISMISSED. THE REOPENING WAS MADE MERELY ON CHANGE OF OPINION AND NOT ON THE BASIS OF ANY MATERIALS. EVEN IN THE ASSESSMENT ORDER THE LEARNED AO HAS ALSO NOT REPRODUCED THE RE ASONS RECORDED FOR INITIATING PROCEEDINGS U/S 147 BY ISSUING NOTIC E U/S 148 AND ON THIS GROUND, THE APPEAL OF THE DEPARTMENT BE DISMIS SED. 5. YOUR CROSS OBJECTOR CRAVES LEAVE TO ADD, ALTER A NY OF THE GROUNDS TILL THE APPEAL IS FINALLY HEARD AND DECIDED. 2. AT THE OUTSET, THE BENCH REJECTED THE REQUEST F OR ADJOURNMENT AND DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE, CONSIDERING THE NATURE OF ISSUE INVOLVED IN THE APPEAL OF THE REVENUE AND THE LEAR NED AR ON BEHALF OF THE ASSESSEE HAVING WITHDRAWN THE CO. 3. ADVERTING NOW TO GROUND NO.1 IN THE APPEAL OF T HE REVENUE, FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT R ETURN DECLARING INCOME OF RS.6,58,719/- FILED BY THE ASSESSEE-COMPA NY, ENGAGED IN MANUFACTURING VARIOUS PRODUCTS FROM ISABGOL AND ALS O ACTING AS COMMISSION AGENT, WAS PROCESSED U/S 143(1) OF THE I NCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT]. THEREA FTER, ASSESSMENT WAS REOPENED U/S 147 OF THE ACT WITH THE ISSUE OF A NOTICE U/S 148 OF THE ACT ON 10.1.2008. DURING THE COURSE OF REASSESS MENT PROCEEDINGS, THE ASSESSING OFFICER[AO IN SHORT] NOT ICED THAT THE ASSESSEE CLAIMED DEDUCTION OF RS.31,26,768/-U/S 80I A OF THE ACT . TO A QUERY BY THE AO AS TO WHETHER THE ASSESSEE-COM PANY WAS 3 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 3 ACTUALLY ENGAGED IN MANUFACTURING OR PROCESSING OF ANY ARTICLES OR THINGS , THE ASSESSEE REPLIED VIDE LETTER DATED 30- 12-2008 THAT THE MANUFACTURING PROCESS INVOLVED CLEANING, SEPARATIO N, REMOVAL OF DUST AND PARTICLES, GRINDING TO GET THE REQUIRE SIZE OF PART ICLES AND SEPARATION BY SIZE AND DE-HUSKING AND GRADING THROUGH SEEVES FOLLOWED BY F UMIGATION AND PACKING CLEARLY . THUS, THE PROCESS INVOLVED WAS NOTHING BU T MANUFACTURING AS THE FINISHED PRODUCTS WERE DIFFERENT IN QUALITY, SIZE A ND SHAPE AND APPLICATION AND THAT THE PROCESS INVOLVED MECHANICAL AND ELECTRICAL OPERATION, RESULTING SIGNIFICANT CHARGE IN THE END PRODUCTS WHICH FIND PLACE FOR APP LICATION FOR WHICH THE RAW MATERIAL CAN BE USED. WHILE RELYING UPON DECISION O F THE LEARNED CIT(A) IN APPEAL NO.CIT(A)-XX/86/2006-07 DATED 19-12-2006 FO R THE AY 2003-04 AND DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ASPINWALL & COMPANY LTD VS. CIT, 251 ITR 323, AS ALSO A CERTIFICATE ISSUED BY SHRI BHASKER BHATT, CHARTERED ENGINEER, THE ASSESSEE CONTENDED THAT THE Y WER ENTITLED TO DEDUCTION U/S 80IA OF THE ACT. HOWEVER, THE AO REJECTED THE CONTENTIONS OF THE ASSESSEE WHILE ANALYSING THE PROCESS INVOLVED AND RELYING U PON DECISIONS IN CIT VS. STERLING FOODS, 213 ITR 851,858 (BOM);CIT VS. N. C. BUDHRAJA & CO., 204 ITR 412 (SC);INDIAN HOTEL CO. LTD VS. ITO, 245 ITR 538 (SC); STERLING FOOD VS. STATE OF KARNATAKA, 63 STC 239 (SC); CIT V. RELISH FOODS [1999] 237ITR 59; SACS EAGLES CHICORY V. CIT [2002] 255 ITR 178; AND CIT V . GEM INDIA MFG. CO. {2001J 249 ITK 307 (SC).ACCORDINGLY, THE AO CONCLUDED THAT THE RAW MATERIAL IN THIS CASE WAS ISABGOL AND SO WAS THE END PRODUCT. THEREF ORE, NO NEW PRODUCT WAS BROUGHT IN TO EXISTENCE. RESULTANTLY, THE AO DENIE D THE DEDUCTION U/S 80IA OF THE ACT. 4. ON APPEAL, THE LEARNED CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE IN THE FOLLOWING TERMS:- 3. READING OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER HAS DETAILED OUT THE ENTIRE PROCESS OF CONVERSION O F HUSK TO ISABGOL TO ARGUE THAT WHAT IS HAPPENING IS ONLY PROCESSING AND NOT ANY MANUFACTURING OR PRODUCTION AND HENCE THE APPELLANT DOES NOT SATISFY THE CONDITIONS OF SECTION 80IA. HE SPECIFICALLY RELIED ON THE FOLLOWING CASE LAWS TO SUPPORT HIS EASE: 4 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 4 I) CIT V. RELISH FOODS 237 TCR 59 (SC) II) INDIAN HOTELS CO LTD. Y ITO 245 FFR 538 (SC) III) SACS EAGLES CHICORY V. CIT 255 FTR178 4. THE APPELLANT ON ITS PART HIGHLIGHTED THE PAST H ISTORY OF THE CASE AND POINTED OUT THAT IN THE A.Y. 2003-04 CFT(A)-XX, AHM EDABAD, VIDE HIS ORDER DATED 19TH DECEMBER 2006, HAD DECIDED THE ISS UE IN THE APPELLANT'S FAVOUR. IT ALSO REITERATED ITS STAND THAT THE PROCE SS INVOLVED IN CONVERSION OF THE HUSK TO ISABGOL AMOUNTED TO MANUFACTURING OF NE W ARTICLE OR PRODUCT. 5. IN THE PRESENT PROCEEDINGS BEFORE ME, ONCE AGAIN THE AUTHORIZED REPRESENTATIVE HAS RELIED ON THE APPELLATE ORDER FO R A.Y. 2003-04 WHICH HAS ACCEPTED THE APPELLANT'S CLAIM RELYING ON THE D ECISION OF THE SUPREME COURT IN THE CASE OF ASPINWALL & CO. LTD. V. CIT 25 1 ITR 323 ALSO FILED IN THE PAPER BOOK IS THE ORDER OF CIT{A)-XXI, AHMEDABA D FOR A.Y. 1999-2000 DATED 12/09/2007 WHERE THE MATTER HAS BEEN DECIDED IN APPELLANT'S FAVOUR ON THE BASIS OF CIT(A)-XXI, AHMEDABAD'S ORDER DATED 19TH DECEMBER 2006 REFERRED TO EARLIER. 6. ALTHOUGH NOT TAKEN AS A SEPARATE GROUND IN THE G ROUNDS OF APPEAL, IN THE WRITTEN SUBMISSIONS HOWEVER, THE APPELLANT H AS ALSO CHALLENGED THE REOPENING U/S.147 ON THE GROUND THAT THE REOPENING IS NOT BASED ON ANY NEW INFORMATION AND THERE BEING DIVERSION OF OPINIO N, IT IS MERELY ON THE GROUND OF A PARTICULAR INTERPRETATION OF THE SUPREM E COURT'S DECISION IN THE MATTER. 7. IT IS ALSO SEEN THAT AS PER THE STATEMENT OF FAC TS, THE APPELLANT HAS REFERRED TO THE FACT THAT ON SIMILAR GROUNDS THE IT AT, VIDE ITS ORDER NO. ITA NO.4159/AHD/2007 DATED 28/03/2008 FOR A.Y. 1999-200 0, HAD DISMISSED THE DEPARTMENTAL APPEAL. HOWEVER, NO SUCH DOCUMENT HAS BEEN FILED BEFORE ME. 8. THE MATTER HAS BEEN GIVEN DUE CONSIDERATION. FRO M THE FACTS AS BROUGHT OUT BY THE ASSESSING OFFICER IN THE ASSESSM ENT ORDER AND THE AUTHORIZED REPRESENTATIVE BEFORE ME, IT IS CLEAR TH AT THE ISSUE IS UNDER LITIGATION AND HAS NOT STILL BEEN SETTLED. THE FACT S OF THE CASE REMAIN THE SAME AS IN THE EARLIER YEAR AND THE ARGUMENTS OF BO TH THE SIDES ALSO REMAIN THE SAME. IN VIEW OF THAT, KEEPING IN MIND T HE NEED FOR JUDICIAL DISCIPLINE, I FOLLOW THE EARLIER APPELLATE DECISION S ON THE ISSUE, NAMELY THAT OF CIT(A)-XX, AHMEDABAD DATED 19TH DECEMBER 2006 AN D CIT(A)-XXI, AHMEDABAD DATED 12/09/2007 WHO HAVE HELD THAT THE A PPELLANT IS ENTITLED TO DEDUCTION U/S.80IA FOR MANUFACTURING ISABGOL. TH E ASSESSING OFFICER IS DIRECTED TO GRANT DEDUCTION U/S.80IA. 5 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 5 5. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED DR SUPP ORTED THE ORDER OF THE AO. ON THE OTHER HAND, THE LEARNED AR ON BE HALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF THE LEARNED CIT( A) WHILE RELYING UPON DECISION DATED 28-03-2008 OF THE ITAT AHMEDABA D BENCH-C IN THE ASSESSEES OWN CASE FOR AY 1999-2000 IN ITA NO.4169/AHD/2007. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISION DATED 28-0 3-2008 OF THE ITAT IN THE ASSESSEES OWN CASE FOR AY 1999-2000 IN ITA NO.4169/AHD/2007 . INDISPUTABLY, THE ISSUE RELATING TO CLAIM FOR DEDUCTION U/S 80IA OF THE ACT WAS RAISED IN THE PRE CEDING ASSESSMENT YEARS ALSO. IN THE AY 1999-2000, THE LD. CIT(A) HAD ALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF F INDINGS OF HIS PREDECESSOR IN THE ORDER DATED 19.12.2006 FOR THE AY 2003-04. THERE IS NOTHING TO SUGGEST THAT THE REVENUE PREFE RRED FURTHER APPEAL BEFORE THE ITAT IN THE AY 2003-04. THE ITAT, IN THE APPEAL OF THE REVENUE FOR THE AY 1999-2000 DISMISSED THE APPEAL ON THE GROUND THAT TAX EFFECT WAS BELOW THE LIMITS PRESCRI BED BY THE CBDT FOR FILING THE APPEALS. THUS, THE FINDINGS OF THE LD. CIT(A) IN RESPECT OF CLAIM FOR DEDUCTION U/S 80IA OF THE ACT HAS BECO ME FINAL IN THE AY 1999-2000, THEREBEING NOTHING TO SUGGEST THAT THE R EVENUE HAVE APPROACHED THE HONBLE HIGH COURT AGAINST THE ORDER OF THE ITAT IN THE AY 1999-2000.EVEN THE FINDINGS OF THE LD. CIT( A) IN THE AY 2003-04 HAVE BECOME FINAL SINCE THE LD. DR DID NOT PLACE ANY MATERIAL BEFORE US, SUGGESTING THAT THE REVENUE PRE FERRED FURTHER APPEAL BEFORE THE ITAT. THOUGH THE PRINCIPLE OF RES JUDICATA HAS NO APPLICATION TO PROCEEDINGS UNDER THE ACT AND THE FI NDINGS REACHED FOR ONE PARTICULAR ASSESSMENT YEAR CANNOT BE HELD T O BE BINDING IN THE ASSESSMENT PROCEEDINGS FOR A SUBSEQUENT YEAR, B UT THIS GENERAL RULE IS SUBJECT TO THE QUALIFICATION THAT A FINDING REACHED IN THE ASSESSMENT PROCEEDINGS FOR AN EARLIER YEAR WOULD NO T BE REOPENED 6 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 6 IN A SUBSEQUENT YEAR IF IT IS NOT ARBITRARY OR PERV ERSE, HAS BEEN ARRIVED AT AFTER DUE ENQUIRY AND IF NO FRESH FACTS ARE PLACED IN THE SUBSEQUENT ASSESSMENT YEAR. THIS IS ON THE PRINCIPL E THAT THERE SHOULD BE FINALITY AND CERTAINTY IN ALL LITIGATIONS INCLUDING LITIGATIONS ARISING OUT OF THE ACT [SEE BURMAH-SHELL REFINERIES LTD. V. G. B. CHAND [1976] 61 ITR 493 (BOM) AND CIT V. DALMIA DAD RI CEMENT LTD. [1970] 77 ITR 410 (P & H)]. IN THE INSTANT CAS E, NO FRESH MATERIAL WAS BROUGHT IN THE ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION AND THE LD. CIT(A) MERELY FOLLO WED THE ORDER HIS PREDECESSOR FOR THE AY 2003-04 WHILE ALLOWING THE CLAIM. IN THE CASE OF TARABEN RAMANBHAI PATEL [1995] 215 ITR 323 (GUJ),HONBLE HIGH COURT OBSERVED THAT IT IS NO DOUBT TRUE THAT T HE STRICT RULE OF THE DOCTRINE OF RESJUDICATA DOES NOT APPLY TO PROCEEDIN GS UNDER THE ACT, AT THE SAME TIME, IT IS EQUALLY TRUE THAT UNLESS TH ERE IS A CHANGE OF CIRCUMSTANCES, THE AUTHORITIES WILL NOT DEPART FROM PREVIOUS DECISIONS AT THEIR SWEET WILL IN THE ABSENCE OF MAT ERIAL CIRCUMSTANCES OR REASONS FOR SUCH DEPARTURES. THE H ON'BLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG V. CIT [199 2] 193 ITR 321 HAS APPROVED THE PRINCIPLE OF CONSISTENCY, WHEN THE Y OBSERVED THAT WHERE A FUNDAMENTAL ASPECT PERMEATING THROUGH THE D IFFERENT ASSESSMENT YEARS HAS BEEN FOUND AS A FACT ONE WAY O R THE OTHER AND THE PARTIES HAVE ALLOWED THAT POSITION TO BE SUSTAI NED BY NOT CHALLENGING THE ORDER, IT WOULD NOT BE AT ALL APPRO PRIATE TO ALLOW THE POSITION TO BE CHANGED IN A SUBSEQUENT YEAR. SIMILA R VIEW HAS BEEN EXPRESSED IN A CATENA OF CASES INCLUDING CIT V. LEA DER VALVES LTD. [2007] 295 ITR 273 (PUNJ. & HAR.), DIT (EXEMPTION) V. GURU NANAK VIDYA BHANDAR TRUST [2004] 272 ITR 379 (DELHI), DIR ECTOR OF INCOME- TAX (EXEMPTION) V. APPAREL EXPORT PROMOTION COUNCIL (NO. 1) [2000], 244 ITR 734(DEL.), CIT V. NEO POLY PACK P. LTD. [20 00] ,245 ITR 492 (DELHI), AND CIT V. A.R.J. SECURITY PRINTERS [2003] 264 ITR 276(DEL.). THOUGH THE PRINCIPLE OF RES- JUDICATA IS NOT APPLIC ABLE IN THE INCOME- TAX MATTER, BUT FINDINGS OF EARLIER YEARS ON THE SA ME MATTER ARE RELEVANT AS PER THE RATIO LAID DOWN IN SARDAR KEHAR SINGH V. CIT 7 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 7 [1992] 195 ITR 769 (RAJ), TARABEN RAMANBHAI PATEL V . ITO [1995] 215 ITR 323 (GUJ) AND CIT V. HINDUSTHAN MOTORS LTD. [1991] 192 ITR 619 (CAL). EARLIER HONBLE APEX COURT IN PARASHURAM POTTERY WORKS CO. LTD. V. ITO [1977] 106 ITR 1 (SC) OBSERVED : 'AT THE SAME TIME, WE HAVE TO BEAR IN MIND THAT THE POLICY OF LAW IS THAT THERE MUST BE A POINT OF FINALITY IN ALL LEGAL PROCEEDINGS, THAT STALE ISSUES SHOULD NOT BE REACTIVATED BEYOND A PAR TICULAR STAGE AND THAT LAPSE OF TIME MUST INDUCE REPOSE IN AND SET AT REST JUDICIAL AND QUASI-JUDICIAL CONTROVERSIES AS IT MUST IN OTHER SP HERES OF HUMAN ACTIVITY.' 6.1 HONBLE DELHI HIGH COURT IN A.R.J. SECURITY PRINTERS' CASE [2003] 264 ITR 276 AND CIT V. NEO POLY PACK P. LTD. [2000] 245 ITR 492 (DELHI), HELD THAT EVEN WHEN THE DOCTRINE OF RE S JUDICATA DOES NOT APPLY TO INCOME-TAX PROCEEDINGS, WHERE AN ISSUE HAS BEEN DECIDED CONSISTENTLY IN A PARTICULAR MANNER FOR EAR LIER ASSESSMENT YEARS, THE SAME VIEW SHOULD PREVAIL EVEN DURING THE SUBSEQUENT YEARS UNLESS THERE IS A MATERIAL CHANGE IN THE FACT S. THE LAW IS, THEREFORE, FAIRLY WELL SETTLED. FOR REJECTING THE V IEW TAKEN FOR THE EARLIER ASSESSMENT YEARS, THERE MUST BE A MATERIAL CHANGE IN THE FACT SITUATION. THERE IS NO GAINSAYING THAT THE PRE VIOUS VIEW WILL HAVE NO APPLICATION EVEN IN CASES WHERE THE LAW ITS ELF HAS UNDERGONE A CHANGE BUT BEFORE AN EARLIER VIEW CAN B E UPSET OR DIGRESSED FROM, ONE OF THE TWO MUST BE DEMONSTRATED , NAMELY, A CHANGE IN THE FACT SITUATION OR A MATERIAL CHANGE I N LAW WHETHER ENACTED OR DECLARED BY THE SUPREME COURT. IN THE I NSTANT CASE, THE LD. CIT(A) HAVE FOLLOWED THE DECISION OF HIS PREDE CESSOR FOR THE AY 2003-04 IN ALLOWING THE CLAIM. AS ALREADY POINTED O UT , THE ISSUE OF CLAIM FOR DEDUCTION U/S 80IA OF THE ACT HAS BECOME FINAL IN THE AY 1999-2000. IN THE ABSENCE OF MATERIAL CHANGE IN FA CTS OR ANY ADDITIONAL INPUT, THERE IS NO COMPELLING REASON FOR TAKING A DIFFERENT VIEW. 8 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 8 6.2 HONBLE JURISDICTIONAL HIGH COURT IN THE CONT EXT OF PROVISIONS OF SEC. 80J OF THE ACT HELD IN THE CASE OF SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES VS. CIT,123 ITR 669(GUJ) THAT T HE TRIBUNAL WAS PERFECTLY JUSTIFIED IN TAKING THE VIEW THAT IF THE RELIEF OF TAX HOLIDAY WAS GRANTED TO THE ASSESSEE-COMPANY FOR THE ASSESSM ENT YEAR 1968-69, THE ASSESSEE WAS ENTITLED TO CONTINUANCE O F THAT RELIEF FOR THE SUBSEQUENT FOUR YEARS AND THE ITO WOULD NOT BE JUSTIFIED IN REFUSING TO CONTINUE THE ALLOWANCE FOR THE ASSESSME NT YEAR UNDER REFERENCE, I.E., 1969-70, WITHOUT DISTURBING THE RE LIEF FOR THE INITIAL YEAR. SIMILAR VIEW WAS TAKEN IN CIT VS. BHILLAI EN GINEERING CORPORATION PVT. LTD.,133 ITR 687(MP) 6.3 IN VIEW OF THE FOREGOING, ESPECIALLY WHEN FA CTS AND CIRCUMSTANCES IN THE YEAR UNDER CONSIDERATION ARE INDISPUTABLY, PARALLEL TO THE FACTS AND CIRCUMSTANCES OBTAINING IN THE AY 1999-2000 & 2003-04 WHILE THE L D. DR HAVE NOT PLACED BEFORE US ANY MATERIAL SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECISION, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). THEREFORE ,GROUND N O.1 IN THE APPEAL OF THE REVENUE IS DISMISSED. 7. AS ALREADY OBSERVED, THE LD. AR ON BEHALF OF THE ASSESSEE DID NOT PRESS ANY OF THE GROUNDS RAISED IN THE CO AND INSTEAD WITHDRE W THE CO. 8. GROUND NOS.2 AND 3 IN THE APPEAL OF THE REVENUE BEING MERE PRAYER NOR ANY SUBMISSIONS HAVING BEEN MADE ON THES E GROUNDS, DO NOT REQUIRE ANY SEPARATE ADJUDICATION AND ARE, THER EFORE, DISMISSED. 9 ITA NO.2713/AHD/09 & CO NO. 245 /AHD/09 9 9. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE A ND THE CROSS OBJECTION FILED BY THE ASSESSE, ARE DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 31-05-2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATED : 31-05-2011 COPY OF THE ORDER FORWARDED TO: 1. M/S JYOT OVERSEAS PVT. LTD., 11, VIDHYANAGAR TWI N BUNGALOWS, NAGALPUR, MEHSANA 2. DEPUTY COMMISSIONER OF INCOME-TAX, MEHSANA CIRC LE, MEHSANA 3. CIT CONCERNED 4. CIT(A), GANDHINAGAR 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD