ITO, Ward - 2(3), Kolkata, Kolkata V. M/s. J. D. Enterprises Pvt. Ltd., Kolkata

ITA 275/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54493 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 09-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: S K BANDYOPADHYAY
• Section: 143(3); 260A; 10B; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . . , !' # # # # /AND $# , !' ) [BEFORE HONBLE SHRI S. V. MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM] #% #% #% #% / I.T.A NO. 275/KOL/2010 $&' () $&' () $&' () $&' ()/ // / ASSESSMENT YEAR: 2003-04 INCOME-TAX OFFICER, WARD-2(3), KOLKATA VS. M/S. J . D. ENTERPRISES PVT. LTD. (PAN-AAACJ 6512 F) (+, /APPELLANT ) (-.+,/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. ROY FOR THE RESPONDENT: SHRI S. K. BANDYOPADHYAY !/ / ORDER PER MAHAVIR SINGH, JM ( $# $# $# $#, , , , !' !' !' !' ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-I, KOLKATA IN APPEAL NO 570/CIT(A)-1/WD-2(3)07-08 DATED 09.12.2008. ASSESS MENT WAS FRAMED BY ITO, WARD-2(3), KOLKATA U/S.147 R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 31.12.2007. 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) IN ALLOWING DEDUCTION U/S. 10B OF THE ACT. FOR THIS, REVENUE H AS RAISED FOLLOWING GROUND NO.1: 1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION OF RS.19,63,632/- U/S. 10B OF THE INCOME TAX ACT, 1961 IGNORING PROVISIONS OF SECTION 10B(5) AND SUB-CLAUSE (IV) TO THE EXPLANATI ON 2 OF SECTION 10B OF THE I. T. ACT, 1961. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER HAS MADE ADDITION FI RST ON THE BASIS THAT ASSESSEE HAS FAILED TO FILE REPORT OF ACCOUNTANT AS DEFINED IN THE EXPLANA TION BELOW SECTION 288(2) OF THE ACT, CERTIFYING THAT THE DEDUCTION HAS BEEN CORRECTLY CL AIMED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. ANOTHER PREMISE OF THE ASSESSING OFF ICER WAS THAT ASSESSEE SUBMITTED A CERTIFICATE 2 ITA 275/K/2010 JD ENTERPRISES PVT. LTD. A.Y.03-04 OF PERMANENT REGISTRATION AS A SMALL SCALE UNIT FRO M GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, DIRECTORATE OF COTTAGE & SMALL SCALE INDUST RIES. THE ASSESSING OFFICER NOTED THAT ACCORDING TO SECTION 10B OF THE ACT A NEWLY ESTABLI SH 100% EXPORT ORIENTED UNDERTAKING (EOU) WILL GET 100% TAX HOLIDAY FOR TEN CONSECUTIVE YEARS SUBJECT TO THE PROVISIONS OF THE ACT. HE REFERRED TO DEFINITION IN EXPLANATION 2(VI) BELO W SUB-SECTION (8) OF SECTION 10B OF THE ACT, WHICH IS AS UNDER: THE TERM 100% EXPORT ORIENTED UNDERTAKING MEANS AN UNDERTAKING WHICH HAS BEEN APPROVED AS A 100% EXPORT ORIENTED UNDERTAKING BY T HE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT IN EXERCISE OF THE POWERS CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 19 51 AND THE RULES MADE UNDER THE ACT. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AND HE RELYING ON TRIBUNALS DECISION FOR ASSESSMENT YEAR 2001-02, IN ASSESSEES OWN CASE, DE LETED ADDITION BY HOLDING AS UNDER: THE ASSESSEES PLEA OF GETTING RELIEF BASED ON DE CISION GIVEN BY THE LD. ITAT IN THE YEAR 2001-02, IS OUT OF PLACE. IN THIS REGARD, IT MAY ALSO BE MENTIONED THAT THE ISSUES PERTAINING TO A.Y. 2001-02 IS SUB JUDICE BEFORE THE KOLKATA HIGH COURT PREFERRED U/S. 260A OF THE I. T. ACT BY THE DEPARTMENT. BE IT AS IT MAY THE FACT REMAINS THAT THE ITAT DECI SION IS THE OPERATIVE ONE AND ONE WHICH THUS OFFICE IS BOUND TO FOLLOW IN THE ABSENCE OF ANY ORDER FROM THE HONBLE HIGH COURT TO THE CONTRARY. 4. WE FIND THAT SUBMISSION OF AUDITORS REPORT AS D EFINED IN EXPLANATION (II) SECTION 288(2) OF THE ACT IS DIRECTORY AND NOT MANDATORY AND REPOR T CAN BE FILED EVEN DURING THE COURSE OF ASSESSMENT AND THE ASSESSEE FILED THE SAME BEFORE A O. EVEN OTHERWISE, ASSESSEE ALSO SUBMITTED CERTIFICATE FROM DIRECTORATE OF COTTAGE & SMALL SCA LE INDUSTRIES, GOVT. OF INDIA WHICH HAS APPROVED THE COMPANY AS 100% EOU. THE DIRECTORATE OF COTTAGE & SMALL SCALE INDUSTRIES, GOVT. OF INDIA IS AN AUTHORITY REGULATING PROVISION S OF INDUSTRIES (DEVELOPMENT & REGULATION) ACT, 1951 AT THE LEVEL OF PRODUCTION AND INVESTMENT IN PLANT AND MACHINERY OF THE COMPANY FALLING UNDER THAT ACT. THE DIRECTORATE OF COTTAGE & SMALL SCALE INDUSTRIES, GOVT. OF INDIA IS THE ENTITY, BEING BOARD APPOINTED IN THIS BEHALF, B Y THE CENTRAL GOVT IN EXERCISE OF ITS POWER CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPM ENT & REGULATION) ACT, 1951. WE FIND THAT THIS CERTIFICATE ISSUED BY DIRECTORATE OF COTTAGE & SMALL SCALE INDUSTRIES, GOVT. OF INDIA SATISFIED THE PROVISIONS OF SUB-CLAUSE (4) EXPLANAT ION (II) TO SECTION 10B OF THE ACT. EVEN THE 3 ITA 275/K/2010 JD ENTERPRISES PVT. LTD. A.Y.03-04 ASSESSEE HAS SUBMITTED FORM NO. 56G ALONG WITH RETU RN OF INCOME WHEREIN THE DATE OF COMMENCEMENT OF MANUFACTURE OR PRODUCTION IS DECLAR ED AS 24.12.1991 WHEREAS FRESH CERTIFICATE IN FORM NO. 56G WAS FILED REFERRING COM MENCEMENT OF MANUFACTURE/PRODUCTION AS 18.2.2000, WHICH IS THE DATE OF REGISTRATION AS 100 % EOU. ASSESSEE CLAIMED DEDUCTION U/S. 10B OF THE ACT W.E.F. ASSESSMENT YEAR 2001-02, AS A SSESSEES UNIT WAS REGISTERED AS 100% EOU FROM 18.2.2000. IN VIEW OF THESE FACTS, HE ALLOWED THE CLAIM OF ASSESSEE. WE FIND NO INFIRMITY IN ORDER OF CIT(A) AND UPHOLD THE SAME. ACCORDINGL Y, APPEAL OF REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 5. ORDER PRONOUNCED IN OPEN COURT ON 12.8.2011 SD/- SD/- . . , !' $# $# $# $# , !' (S. V. MEHROTRA (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0 ) )) ) DATED : 12 TH AUGUST, 2011 12 $&34 $5 JD.(SR.P.S.) !/ 6 -$$ 7(8- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT ITO, WARD-2(3), KOLKATA. 2 -.+, / RESPONDENT, M/S. J. D. ENTERPRISES PVT. LTD., 2, G. C. AVENUE, KOLKATA-13. 3 . $/& ( )/ THE CIT(A), KOLKATA 4. $/& / CIT, KOLKATA 5 . $> -$& / DR, KOLKATA BENCHES, KOLKATA . -$/ TRUE COPY, !/&?/ BY ORDER, #4 /ASSTT. REGISTRAR .