The ITO,Vapi Ward-4., Nani Daman V. M/s. Jolly Polymers, Nani Daman

ITA 2763/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1768 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 28-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U S RAINA SRDR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI D.K. TYAGI, HONBLE JUDICIAL MEMBER AND SHRI A.N.PHAUJA, HONBLE ACCOUNTANT MEMBER ITA NO.2763/AHD/2010 ASSESSMENT YEAR:2007-08 DATE OF HEARING:18.3.11 DRAFTED:22.3.11 INCOME TAX OFFICER, VAPI, WARD-4, DAMAN V/S. M/S.JOLLY POLYMERS, S. NO.758/6, DABHEL,NANI DAMAN PAN NO.AAEFJ2211Q (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI U.S. RAINA, SR-DR RESPONDENT BY:- SHRI TUSHAR P HEMANI, AR O R D E R PER D.K. TYAGI, JUDICIAL MEMBER:- THIS IS REVENUES APPEAL AGAINST THE ORDER OF COMM ISSIONER OF INCOME- TAX(APPEALS)-VALSAD IN APPEAL NO. CIT(A)/VLS/298/09 -10 DATED 21-07-2010 FOR THE ASSESSMENT YEAR 2007-08. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S.80IB OF THE ACT STATING THAT DISALLOWANCE OF CLAIM OF DEDUCTION U/S.80IB OF THE ACT ON THE SOLE GROUND THAT THE ASSESSEE WAS NOT HAVING FACTORY LICENSE BEFORE IT STARTED MANUFACTURING ACTIVITIES IS WITHOUT ANY MERITS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING THE POINT THAT THE ASSESSEE HAS FAILED TO PROVE THAT IT HAS COMMENCED THE MANUFACTURING ACTIV ITY ON OR BEFORE 31.03.2004, AS STIPULATED IN SECTION 80IB OF THE AC T. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FI LED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 07-11-2007, WHEREIN AN AMOUNT OF RS.1,83,04,755/- WAS CLAIMED AS DEDUCTION U/S.80IB OF THE ACT AND TO TAL INCOME WAS DECLARED AT ITA NO.2763/AHD/2010 A.Y. 2007-08 ITO VLS WD4, V. M/S JOLLY POLYMERS PAGE 2 RS.3,45,720/-. THE ASSESSEE COMMENCED ITS MANUFACTU RING ACTIVITY FROM 21-03-2004 I.E. BEFORE THE CUT OFF DATE 31-03-2004 BUT ASSESSI NG OFFICER DENIED DEDUCTION U/S.80IB ON THE BASIS OF DISALLOWANCE MADE IN THE A SSESSMENT YEAR 2006-07. 4. IN APPEAL LD. CIT(APPEALS) HAS FOLLOWED THE DECI SION OF ITAT AHMEDABAD BENCH IN THE CASE OF ITO VAPI V. SAMRATH HEALTH CARE IN ITA NO.1006/AHD/.2009 DATED -5-06-2008 DIRECTING THE ASSESSING OFFICER TO GRANT BENEFIT U/S.80IB OF THE ACT. AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE THE TRIB UNAL. 5. AFTER HEARING BOTH THE PARTIES WE FIND THAT ISSU E IS NOW COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE BY THE ORDER OF IT AT IN THE CASE OF SAMRATH HEALTH CARE (SUPRA), WHEREIN THE TRIBUNAL HAS HELD AS UNDER:- 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARN ED DR AND CAREFULLY PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN OUR CONSIDERED VIEW THERE IS NO CASE FOR INTERFERENCE IN THE ORDER OF THE LEARNED C IT(A). THE LEARNED CIT(A) HAS RIGHTLY MENTIONED THAT TO OBTAIN FACTORY LINCEN SE IS NO A CONDITION PRECEDENT FOR CLAIMING DEDUCTION U/S.80 IB OF THE A CT. IF WE PRESUME HAT THIS CONDITION IS ALSO REQUIRED TO BE FULFILLED BY THE A SSESSEE, THEN IT WOULD AMOUNT TO LEGISLATION BY INSERTING ANOTHER CONDITION IN SE CTION 80 IB FOR ALLOWING DEDUCTION UNDER THAT SECTION THOUGH NOT PROVIDED IN THE STATUTE. THE AO DID NOT DOUBT ABOUT RAW MATERIAL CONSUMPTION, POWER CON SUMPTION, SALES AND EMPLOYMENT OF WORKERS. FURTHER NO DOUBT WAS ALSO EX PRESSED BY THE AO THAT ASSESSEE DID NOT CARRY ANY MANUFACTURING ACTIVITY. NONETHELESS, THE ASSESSEE HAS APPLIED FOR FACTORY LICENSE PRIOR TO COMMENCEME NT OF PRODUCTION THOUGH IT WAS GRANTED SUBSEQUENTLY. THE ASSESSEE HAS BEEN GIV EN A PERMANENT REGISTRATION AS A SMALL SCALE INDUSTRIAL UNDERTAKIN G AND HAS REGISTERED WITH THE SALES TAX AND EXCISE AUTHORITIES. FOR CLAIMING DEDU CTION U/S.80 IB OF THE ACT ONLY THE CONDITIONS LAID DOWN UNDER THAT SECTION AR E REQUIRED TO BE FULFILLED AND NO MORE. THE REQUIREMENT UNDER OTHER STATUTES CANNO T BE BORROWED FOR ALLOWING / REFUSING DEDUCTION UNLESS IT IS SO PROVI DED IN THE IT ACT ITSELF. FOR EXAMPLE, THE LEGISLATURE THOUGHT IT FIT TO BRING TH E CONDITION OF EMPLOYMENT OF 10 OR MORE WORKERS IF MANUFACTURING ACTIVITIES ARE CA RRIED OUT WITH THE HELP OF POWER OR MORE THAN 20 WORKERS WITHOUT THE HELP OF POWER. SIMILARLY, IF T HE LEGISLATURE THOUGHT IT FIT TO OBTAIN FACTORY LICENS E BEFORE ALLOWING DEDUCTION U/S.80 IB OF THE ACT THEN THEY WOULD HAVE SO PROVID ED. IN FACT, THERE ARE SEVERAL OTHER REQUIREMENTS IN DIFFERENT ACT APPLICA BLE TO AN INDUSTRY BUT ALL THESE REQUIREMENTS ARE NOT TO BE COMPLIED WIDTH FOR CLAIMING DEDUCTION U/S.80 IB OF THE ACT. WHAT IS ESSENTIAL IS THAT THE ASSESS EE SHOULD MANUFACTURE OR PRODUCE AN ARTICLE OR THING. IF THERE IS ANY VIOLAT ION OF ANY PROVISIONS OF OTHER STATUTES THEN THE ASSESSEE HAS TO EXPLAIN THE SAME TO THE AUTHORITIES EXECUTING THOSE ACTS / STATUTES. FURTHER FOR VIOLAT ION OF HE PROVISIONS UNDER OTHER ACTS THE ASSESSEE MAY FACE PENAL PROVISIONS A S PROVIDED UNDER THOSE ACTS. BUT FOR THAT COMMISSIONS / OMISSION UNDER OTH ER ACTS THE DECISION UNDER THE IT ACT CANNOT BE AFFECTED UNLESS SO PROVIDED UN DER THE IT ACT. WE ITA NO.2763/AHD/2010 A.Y. 2007-08 ITO VLS WD4, V. M/S JOLLY POLYMERS PAGE 3 HOWEVER, NOTICE THAT THIS APPEAL IS FOR AY 2005-06 AND AS PER FACTS STATED IN THE ORDER BY THE LEARNED CIT(A) THE ASSESSEE HAS OB TAINED FACTORY LICENSE ON 6-5-2004 WHICH IS FINANCIAL YEAR 2004-05. THEREFORE , THERE SHOULD BE NO CASE FOR DISALLOWING THE CLAIM OF THE ASSESSEE U/S.80 IB ON THE QUESTION OF NOT OBTAINING FACTORY LICENSE. AS A RESULT, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) AND DISMISS THE GROUNDS OF APPEAL OF THE REV ENUE. WE FURTHER FIND THAT IN ASSESSEES OWN CASE FOR ASS ESSMENT YEARS 2005-06 AND 2006-07 ON IDENTICAL FACTS THE ITAT HAS GIVEN RELIE F TO THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THE CLAIM OF ASSESSEE. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 18/03/2011 (A.N.PHAUJA) (D.K. TYA GI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 18/03/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-VALSAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD