The DCIT, Circle-5, Ahmedabad V. M/s. Omni Lens Pvt.Ltd., Ahmedabad

ITA 2854/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5885 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: JIGAR M PATEL
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.2854/AHD/2014 ( / ASSESSMENT YEAR : 2010-11) THE DCIT CIRCLE-5 AHMEDABAD / VS. M/S.OMNI LENS PVT.LTD. 5/A, SAMRUDDHI OPP. SAKAR-III NR.OLD HIGH COURT NAVRANGPURA, AHMEDABAD $ ./ ./ PAN/GIR NO. : AAACO 1725 F ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : MR. ANTONY PARIATH, SR.DR ($'*) / RESPONDENT BY : MR. JIGAR M. PATEL, AR +,*- / DATE OF HEARING 16/05/2017 ./0*- / DATE OF PRONOUNCEMENT 17/ 05/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE PRESENT APPEAL FILED BY THE REVENUE IS AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XI, AHMEDABAD [CIT(A) IN SHORT] DATED 04/08/2014 FOR THE ASSESSMENT YEAR (AY) 2010-11 WHEREBY THE DISALLOWANCE OF ASSESSEES CLAIM OF DED UCTION OF RS.1,59,01,806/- BY THE ASSESSING OFFICER (AO) UNDE R S.80IB OF THE ITA NO. 2854/AH D/2014 DCIT VS. OMNI LENS PVT.LTD. ASST.YEAR 2010-11 - 2 - INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT') WAS REVERSED. 2. BRIEFLY STATED, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INTRA OCULAR LENSES ETC. IN THE RETURN OF INCOME FILED F OR AY 2010-11, THE ASSESSEE INTER ALIA CLAIMED DEDUCTION UNDER S.80-IB OF THE ACT PEGGED AT RS.1,59,01,806/-. THE AO DISALLOWED THE AFORESAID CLAIM OF DEDUCTION FOLLOWING THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2008-09. 3. IN THE FIRST APPEAL, THE CIT(A), HOWEVER, REVERS ED THE ACTION OF THE AO IN TERMS OF THE DECISION OF THE CO-ORDINATE BENC H OF ITAT IN ITA NOS.1728, 1729 & 1730/AHD/2012 CONCERNING THE AYS 2 005-06, 2007- 08 & 2009-10, ORDER DATED 05/10/2012. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE SHORT QUESTION IN APPEAL IS TOWARDS ALLOWABILITY OF DEDUC TION UNDER S.80-IB OF THE ACT. WE FIND THAT THIS IS THE 10 TH YEAR OF CLAIM OF DEDUCTION. IN THE QUANTUM PROCEEDINGS FOR THE EARLIER YEARS, SIMILAR DISALLOWANCE WERE MADE WHICH WERE HOWEVER REVERSED BY THE ITAT AS NOT ED BY THE CIT(A). THE RELEVANT PORTION OF THE ORDER OF THE CO-ORDINAT E BENCH OF ITAT IN ITA NO.1728/AHD/2012 & ORS. RELEVANT TO AY 2009-10 RELIED UPON IS REPRODUCED HEREUNDER:- ITA NO. 2854/AH D/2014 DCIT VS. OMNI LENS PVT.LTD. ASST.YEAR 2010-11 - 3 - 2. NOW BEFORE US, THAT ORDER OF THE TRIBUNAL TITLE D AS 'ACIT (OSD) CIRCLE-5 VS. OMNI LENS PVT.LTD.' BEARING ITA NO.276/AHD/2012 FOR A.Y. 2008-09 [ITAT 'D' BENCH AHMEDABAD] ORDER DATED 30.3.2012 IS PLACE D ON RECORD AND WE HAVE NOTED THAT VIDE PARAGRAPH NO.7, THE RELIEF GRA NTED BY THE ID.CIT(A) WAS CONFIRMED IN THE FOLLOWING MANNER:- '7. WE FIND THAT A CLEAR FINDING IS GIVEN BY LD. CI T(A) THAT THE A.O. HAS ALLOWED DEDUCTION U/S 80-IB TO THE ASSESSEE IN ASSE SSMENT 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 ASSESSMENT YEAR 2 006-07 FOR WHICH ALSO, THE ASSESSMENT WAS COMPLETED U/S 143(3). HE HAS FOLLOWE D THE JUDGEMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD. (SUPRA) AND HELD THAT THE A.O. CANNOT WITHDRAW RELIEF TO A NEW INDUSTRIAL UNDERTAKING WHICH HAS AL READY BEEN GRANTED WITHOUT DISTURBING SUCH RELIEF FOR EARLIER YEARS. CONSIDERI NG THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT(A) BECAUSE THE LD. D.R. OF THE REVENUE COULD NOT SHOW THAT SUCH RELIEF WAS NOT ALL OWED BY THE A.O. IN EARLIER YEARS OR TO SHOW THAT SUCH RELIEF ALTHOUGH ALLOWED BUT WAS SUBSEQUENTLY WITHDRAWN. REGARDING THIS CONTENTION OF THE LD. D.R . THAT NO EVIDENCE WAS FURNISHED BY THE ASSESSEE BEFORE THE A.O. IN RESPEC T OF PUTTING UP OF NEW UNIT IN ASSESSMENT YEAR 2001-02, WE FIND THAT AS PER THE ASSESSMENT 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 A SSESSEE U/S 80-IB. THE A.O. HIMSELF HAS STATED IN THE ASSESSMENT ORDER THA T FOR THE UNIT ESTABLISHED BY THE ASSESSEE IN ASSESSMENT YEAR 1994-95, ASSESSEE W AS GETTING DEDUCTION U/S 80-1A UP TO ASSESSMENT YEAR 2004-05. IF THIS BE SO, THEN FOR NEW UNIT ONLY, DEDUCTION WAS ALLOWED BY THE A.O. U/S 80-IB IN ASSE SSMENT YEAR 2006-07. THIS GOES TO SHOW THAT THIS 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 RESPECT 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 FIND ANY MERIT IN THE CONTENTION OF THE LD. D.R. WE, THE REFORE, DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). ' 5. IN VIEW OF THE FACT THAT THE ISSUE HAS ALREADY B EEN DECIDED IN FAVOUR OF ASSESSEE IN ITS OWN CASE IN THE EARLIER A SSESSMENT YEARS AS NOTED ABOVE, WE FIND NO FAULT WITH THE ORDER OF THE CIT(A ). ITA NO. 2854/AH D/2014 DCIT VS. OMNI LENS PVT.LTD. ASST.YEAR 2010-11 - 4 - 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 17/ 05/2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 17/ 05 /2017 4..+,.+../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-XI, AHMEDABAD 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 16.5.17(DICTATION-PAD 4- PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 17.5.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.17.5.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.5.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER