Appeal details
Counselvise Citation
27620514 RSA 2012
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 month(s) 29 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-03-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Assessment Year
2008-2009
Appeal Filed On
31-01-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 276/ AHD/2012 (ASSESSMENT YEAR 2008-09) ACIT (OSD), CIRCLE 5, AHMEDABAD VS. OMNI LENS PVT. LTD., 5-A, SAMRUDDHI, OPP. SAKAR III, NR. OLD HIGH COURT, ASHRAM ROAD, AHMEDABAD-380014. PAN/GIR NO. : AAACO1725F (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI B L YADAV, SR. DR RESPONDENT BY: SHRI MUKESH M PATEL, AR DATE OF HEARING: 28.03.2012 DATE OF PRONOUNCEMENT: 30.03.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), AHMEDABAD DATED 23.11.2011 FOR THE ASSESSME NT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELEING THE DISALLOWANCE OF THE ASSESSEES CLAIM OF DEDUCTION O F RS.32,68,568/- MADE BY THE A.O. U/S 80IB OF THE INCOME TAX ACT, 19 61. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF LD. CI T(A) MAY BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. 3. THE BRIEF FACTS REGARDING THIS ISSUE ARE THAT IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT THE ASSESSEE COMPANY H AS CLAIMED DEDUCTION I.T.A.NO.276 /AHD/2012 2 U/S 80-IA TO THE TUNE OF RS.32,68,568/- @ 30% OF TH E PROFITS IN THE E- RETURN FILED. IT IS ALSO NOTED THAT IN THE STATEME NT OF TOTAL INCOME FILED ALONG WITH THE RETURN, THE ASSESSEE HAS CLAIMED DED UCTION U/S 80-I OF THE ACT FOR THE SAME AMOUNT. THE A.O. HAS OBSERVED THA T THE ASSESSEE COMPANY IS NOT SURE THAT WHETHER IT IS ELIGIBLE FOR DEDUCTION U/S 80-I OR U/S 80-IA OF THE INCOME TAX ACT, 1961. WHEN A QUERY WA S RAISED BY THE A.O., IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE A .O. THAT THE ASSESSEE IS CLAIMING DEDUCTION U/S 80-IB OF THE INCOME TAX ACT, 1961. IT WAS ALSO SUBMITTED THAT THE ASSESSEE COMPANY STARTED MANUFAC TURING 3 PIECE INTRA OCULAR LENS DURING THE YEAR RELEVANT TO ASSESSMENT YEAR 1995-96. IT WAS ALSO SUBMITTED THAT SUBSEQUENTLY, IN THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2001-02, THE ASSESSEE COMPANY START ED ANOTHER UNIT FOR MANUFACTURING OF FOLDABLE AND SINGLE PIECE INTRA OC ULAR LENS. IT WAS ALSO SUBMITTED THAT THE ASSESSEE COMPANY ALSO CLAIMED DE DUCTION U/S 80-IB ON THE TAXABLE PROFIT FROM THE NEW PRODUCT I.E. FOLDAB LE AND SINGLE PIECE INTRA OCULAR LENS DURING THE PRESENT YEAR. THE A.O. HAS FURTHER NOTED THAT FROM THE RECORDS AVAILABLE IN HIS OFFICE (REGISTRATION C ERTIFICATE ISSUED BY INDUSTRIES COMMISSIONERATE, GANDHINAGAR ON 31.12.20 05 / 4.1.2006), IT IS NOTED THAT THE ASSESSEE COMPANY HAS STARTED ITS PRO DUCTION ON 16.08.1994 I.E. ASSESSMENT YEAR 1995-96. HE FURTHER NOTED THA T AS PER RULES, DEDUCTION U/S 80-IB IS ALLOWABLE FOR TEN CONSECUTIV E YEARS FROM THE DATE OF STARTING OF PRODUCTION AND HENCE, ASSESSEE WAS E LIGIBLE FOR THIS DEDUCTION UP TO THE ASSESSMENT YEAR 2004-05. HE FU RTHER NOTED THAT IT IS SUBMITTED BY THE ASSESSEE COMPANY THAT THEY STARTED ANOTHER UNIT FOR MANUFACTURING FOLDABLE SINGLE PIECE INTRA OCULAR LE NS DURING THE ASSESSMENT YEAR 2001-02 BUT IT IS NOTED THAT IN THI S RESPECT, NO EVIDENCE HAS BEEN FURNISHED BY THE ASSESSEE TO SUBSTANTIATE THIS CLAIM. THE A.O. REJECTED THE CLAIM OF THE ASSESSEE REGARDING DEDUCT ION U/S 80-IB BY I.T.A.NO.276 /AHD/2012 3 MAKING THESE OBSERVATIONS. BEING AGGRIEVED, THE AS SESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) WHO HAS DELETED THIS DISALLOWANCE AND NOW, THE REVENUE IS IN APPEAL BEFORE US. 4. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. HE SUB MITTED THAT A CLEAR FINDING IS GIVEN BY THE A.O. THAT NO EVIDENCE WAS F URNISHED BEFORE HIM BY THE ASSESSEE IN RESPECT OF STARTING OF NEW UNIT IN ASSESSMENT YEAR 2001- 02 AND, THEREFORE, THE ORDER OF LD. CIT(A) SHOULD B E REVERSED AND THAT OF THE A.O. SHOULD BE RESTORED. 5. AS AGAINST THIS, LD. A.R. OF THE ASSESSEE SUPPOR TED THE ORDER OF LD. CIT(A). HE SUBMITTED A COPY OF THE STATEMENT OF FA CTS FILED BY THE ASSESSEE BEFORE LD. CIT(A) ALONG WITH FORM 35. HE DRAWN OUR ATTENTION TO PAGE 14 OF THE STATEMENT OF FACTS WHICH IS A LET TER ISSUED BY THE A.O. TO THE ASSESSEE COMPANY ON 27.11.2006 IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2004-05. HE POI NTED OUT THAT IT IS SPECIFICALLY STATED BY THE A.O. IN THIS LETTER THAT THE ASSESSEE COMPANY HAS CLAIMED DEDUCTION U/S 80-IB FOR TWO UNITS ESTABLISH ED IN ACCOUNTING YEAR 1994-95 AND 2000-01 RESPECTIVELY. HE SUBMITTED THA T IT GOES TO SHOW THAT THIS FACT WAS VERY MUCH AVAILABLE ON RECORD OF THE DEPARTMENT THAT ASSESSEE HAS STARTED NEW UNIT IN FINANCIAL YEAR 200 0-01 FOR WHICH THE ASSESSEE IS CLAIMING DEDUCTION U/S 80-IB. HE ALSO SUBMITTED THAT ON PAGE 16-21, IS THE COPY OF ASSESSMENT ORDER PASSED BY TH E A.O. IN ASSESSMENT YEAR 2004-05 U/S 143(3). HE SUBMITTED THAT OUT OF TOTAL INCOME OF THE ASSESSEE IN THAT YEAR, DEDUCTION WAS ALLOWED BY THE A.O. U/S 80-IB @ 30% AMOUNTING TO RS.23,37,810/-. HE ALSO SUBMITTE D THAT ON PAGES 28- 33 IS A COPY OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2006-07 AND IN THAT YEAR ALSO, THE CLAIM OF THE ASSESSEE FOR DEDUC TION U/S 80-IB WAS ALLOWED BY THE A.O. TO THE EXTENT OF RS.52,33,100/- . HE FURTHER SUBMITTED THAT IN ASSESSMENT YEAR 2004-05, THE A.O. HAS ALLOWED I.T.A.NO.276 /AHD/2012 4 DEDUCTION U/S 80-IB WHEREAS IN ASSESSMENT YEAR 2006 -07, THE DEDUCTION ALLOWED BY THE A.O. IS STATED TO BE U/S 80-I AND HE NCE, IF A WRONG SECTION WAS MENTIONED BY THE ASSESSEE IN ITS RETURN OF INCO ME FILED BY THE ASSESSEE FOR THE PRESENT YEAR, IT IS NOT JUSTIFIED TO DRAW ANY ADVERSE INFERENCE. HE FURTHER SUBMITTED THAT LD. CIT(A) HA S DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT I.E. HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SAURASHTSRA CEMENT & CHEMICAL INDUSTRIES L TD. VS CIT AS REPORTED IN 123 ITR 669. HE SUBMITTED THAT IT WAS HELD BY THE HONBLE GUJARAT HIGH COURT IN THAT CASE THAT IN RESPECT OF INCOME FROM NEWLY ESTABLISHED INDUSTRIAL UNDERTAKING, IF THE ASSESSEE S CLAIM FOR DEDUCTION U/S 80-J WAS ALLOWED IN THE INITIAL YEAR AND THE SA ME WAS NOT DISALLOWED IN THAT YEAR, THE CLAIM OF THE ASSESSEE CANNOT BE D ISALLOWED IN A SUBSEQUENT YEAR. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, ASSESSEES CLAIM FOR DEDUCTION U/S 80-IB IN RESPECT OF NEW UNI T WAS ALLOWED BY THE A.O. IN THE INITIAL YEAR I.E. ASSESSMENT YEAR 2001- 02 AND ALSO IN THE SUBSEQUENT YEARS UP TO ASSESSMENT YEAR 2006-07 AND IN THE INITIAL YEAR, THIS CLAIM HAS NOT BEEN WITHDRAWN AND, THEREFORE, I N THE PRESENT YEAR, THE A.O. CANNOT DISTURB THIS CLAIM OF THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGEMENT CITED BY THE LD. A.R. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY LD. CIT(A) AS PER PARA 3.2 OF HIS ORDER WHICH IS REPRODUCED BELOW: 3.2 I HAVE CONSIDERED RIVAL SUBMISSIONS. I HAVE AL SO GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS MADE BY THE AP PELLANT. I HAVE ALSO GONE THROUGH THE STATEMENT OF FACTS SUBMI TTED BY THE APPELLANT ALONG WITH FORM NO.35 AT THE TIME OF FILI NG THE APPEAL. IT IS SEEN THAT A.O. HAS DISALLOWED DEDUCTION U/S.80IB WITH THE OBSERVATIONS THAT APPELLANT HAD STARTED PRODUCTION FROM A.Y, 1995- 96 AND IT IS ELIGIBLE TO CLAIM DEDUCTION U/S,801 UP TO A.Y. 2004-05 BEING 10 YEARS' AFTER COMMENCEMENT OF PRODUCTION. I T APPEARS THAT I.T.A.NO.276 /AHD/2012 5 A.O. HAD CONVENIENTLY IGNORED VARIOUS EVIDENCES PLA CED ON RECORD TO PROVE THAT APPELLANT HAD STARTED NEW MANUFACTURI NG UNIT FOR FOLDABLE AND SINGLE PIECE INTRA-OCULAR LENSES DURIN G THE A.Y. 2001- 02. TO PROVE THIS POINT, APPELLANT HAS FILED COPY O F FORM 10CCB FURNISHED ALONG WITH RETURN OF INCOME FOR A.Y. 2004 -05. IN THIS FORM, THE AUDITORS HAVE CERTIFIED THAT PRODUCTION O F FOLDABLE LENS WAS STARTED FROM A.Y. 2001-02. ON THE STRENGTH OF F ORM 10CCB DTD. 3-9-2004 THE A.O, HAS ALLOWED DEDUCTION U/S.8O IB TO THE APPELLANT IN THE ASSESSMENT FOR A.Y. 2004-05, ASSES SED U/S.143(3) OF IT. ACT DTD. 7-12-2006. DEDUCTION U/S.80IB HAS A GAIN BEEN ALLOWED TO THE APPELLANT FOR THE A.Y. 2006-07. FOR THE A.Y. 2006- 07 ASSESSMENT U/S. 143(3) WAS COMPLETED VIDE ASSESS MENT ORDER DTD. 24-11-2008 WHEREIN DEDUCTION U/S,80IB OF RS.52 ,33,100/- WAS ALLOWED TO THE APPELLANT. THIS DEDUCTION WAS IN RES PECT OF NEW UNIT WHICH WAS COMMISSIONED IN A.Y, 2001-02. THE ABOVE F ACTS CLEARLY REVEALS THAT DISALLOWANCE OF DEDUCTION U/S.80IB HAS BEEN MADE ON WRONG PREMISE. ACCORDINGLY, THE ACTION OF A.O. IS N OT TENABLE. I HAVE ALSO GONE THROUGH THE RATIO OF GUJARAT HIGH CO URT DECISION IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. V/S. CIT REPORTED ON 123 ITR 669 RELIED UPON BY THE APPELLAN T, WHEREIN IT HAS BEEN HELD THAT A.O. CANNOT WITHDRAW RELIEF TO A NEW INDUSTRIAL UNDERTAKING WHICH HAS ALREADY BEEN GRANTED, WITHOUT DISTURBING SUCH RELIEF FOR EARLIER YEARS. IN VIEW OF ABOVE FAC TS, I AM INCLINED TO AGREE WITH THE SUBMISSIONS OF THE ID. A.R. DISALLOW ANCE MADE BY THE A.O. OF RS.32,68,568/- IS ORDERED TO BE DELETED . THIS GROUND OF APPEAL IS ALLOWED. 7. WE FIND THAT A CLEAR FINDING IS GIVEN BY LD. CIT (A) THAT THE A.O. HAS ALLOWED DEDUCTION U/S 80-IB TO THE ASSESSEE IN ASSESSMENT YEAR 2004- 05 AS PER THE ORDER PASSED BY HIM IN THAT YEAR U/S 143(3) AND THE SAME CLAIM WAS AGAIN ALLOWED TO THE ASSESSEE FOR ASSESSM ENT YEAR 2006-07 FOR WHICH ALSO, THE ASSESSMENT WAS COMPLETED U/S 143(3) . HE HAS FOLLOWED THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERE D IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (SUPRA ) AND HELD THAT THE A.O. CANNOT WITHDRAW RELIEF TO A NEW INDUSTRIAL UND ERTAKING WHICH HAS ALREADY BEEN GRANTED WITHOUT DISTURBING SUCH RELIEF FOR EARLIER YEARS. CONSIDERING THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE I.T.A.NO.276 /AHD/2012 6 ORDER OF LD. CIT(A) BECAUSE THE LD. D.R. OF THE REV ENUE COULD NOT SHOW THAT SUCH RELIEF WAS NOT ALLOWED BY THE A.O. IN EAR LIER YEARS OR TO SHOW THAT SUCH RELIEF ALTHOUGH ALLOWED BUT WAS SUBSEQUEN TLY WITHDRAWN. REGARDING THIS CONTENTION OF THE LD. D.R. THAT NO E VIDENCE WAS FURNISHED BY THE ASSESSEE BEFORE THE A.O. IN RESPECT OF PUTTI NG UP OF NEW UNIT IN ASSESSMENT YEAR 2001-02, WE FIND THAT AS PER THE AS SESSMENT ORDER PASSED BY THE A.O. U/S 143(3) FOR THE ASSESSMENT YEAR 2004 -05 AND ASSESSMENT YEAR 2006-07, DEDUCTION WAS ALLOWED BY THE A.O. TO THE ASSESSEE U/S 80- IB. THE A.O. HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT FOR THE UNIT ESTABLISHED BY THE ASSESSEE IN ASSESSMENT YEAR 1994 -95, ASSESSEE WAS GETTING DEDUCTION U/S 80-IA UP TO ASSESSMENT YEAR 2 004-05. IF THIS BE SO, THEN FOR NEW UNIT ONLY, DEDUCTION WAS ALLOWED BY TH E A.O. U/S 80-IB IN ASSESSMENT YEAR 2006-07. THIS GOES TO SHOW THAT TH IS FACT WAS VERY MUCH AVAILABLE IN THE RECORD OF THE DEPARTMENT THAT THE ASSESSEE HAS ESTABLISHED A NEW UNIT IN ASSESSMENT YEAR 2001-02 AND IN RESPEC T OF THIS UNIT, DEDUCTION WAS ALLOWED BY THE A.O. TO THE ASSESSEE U /S 80-IB IN ASSESSMENT YEAR 2006-07 ALSO. HENCE, WE DO NOT FIN D ANY MERIT IN THE CONTENTION OF THE LD. D.R. WE, THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.276 /AHD/2012 7 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 28/3 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29/3.OTHER MEMBER 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 D ICTATING MEMBER FOR PRONOUNCEMENT 30/3 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/3/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .
