SOEX INDIA P.LTD, MUMBAI V. DCIT CEN CIR 44, MUMBAI

ITA 3/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6918 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Assessee Lawyers: RAHUL K HAKANI
• Section: 143(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI G S PANNU, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.03/MUM/2017 ASSESSMENT YEAR : 2010-11 M/S. SOEX INDIA PVT. LTD., NIRMAL, 21 ST FLOOR, NARIMAN POINT, MUMBAI 400 021 PAN AAGCS0625Q VS. DCIT CENTRAL CIRCLE -44, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAHUL K HAKANI RESPONDENT BY : MS. ARJU GARODIA DATE OF HEARING : 18.06.2018 DATE OF PRONOUNCEMEN T : 20 .06.2018 O R D E R PER G S PANNU, ACCOUNTANT MEMBER THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-50, MUMBAI, DATED 19.09.2016, WHICH IN TURN HAS ARISEN OUT OF THE ORD ER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) RELATING TO A.Y. 2010-11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING OR DER OF LEARNED ASSESSING OFFICER DENYING CLAIM OF ASSESSEE U/S. 10B OF RS. 2 ,69,60,127/- WITHOUT APPRECIATING THAT ASSESSEE HAS COMPLIED WITH ALL CO NDITIONS PRESCRIBED U/S. 10B AND THERE IS NO VIOLATION OF CONDITION PRE SCRIBED U/S. 10B(2)(III) AND HENCE ASSESSEE CLAIM U/S.10B MAY BE ALLOWED. 2. WITHOUT PREJUDICE TO ABOVE, THE LEARNED CI T(A) ERRED IN CONFIRMING ORDER OF LEARNED ASSESSING OFFICER DENYING CLAIM OF ASSESSEE U/S. 10B OF RS. 2,69,60,127/- WITHOUT APPRECIATING THAT ALL THE CONDITIONS PRESCRIBED U/S. 10B HAVE BEEN COMPLIED WITH DURING THE RELEVAN T ASSESSMENT YEAR AND HENCE ASSESSEE CLAIM U/S.10B MAY BE ALLOWED. ITA NO.03/MUM/2017 SOEX INDIA PVT LIMITED 2 3. THE GRIEVANCE OF THE ASSESSEE RAISED IN THE GROU NDS OF APPEAL RELATES TO THE DISALLOWANCE OF DEDUCTION U/S. 10B OF THE ACT. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURIN G BEEDI(BOTH TOBACCO AND HERBAL) AND RELATED PRODUCTS. IT FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 09.10.2010, DECLARING TOTAL INCOME AT ` 74,59,388. SUBSEQUENT TO SCRUTINY, ASSESSMENT WAS COMPLETED U/S. 143(3) OF T HE ACT DETERMINING THE TOTAL INCOME AT ` 3,44,21,415/-. THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 10B OF THE ACT IN RESPECT OF THE UNIT LOCATED AT VILLAGE TAKWE, TA L MAVAL, PUNE. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE CLAIM ON THE GROUN D THAT THE CONDITIONS NECESSARY FOR AVAILING BENEFITS UNDER SECTION 10B WAS NOT FUL FILLED BY THE ASSESSEE. ON APPEAL, THE CIT(A), FOLLOWING THE ORDER OF HIS PREDECESSOR, UPHELD THE ACTION OF THE ASSESSING OFFICER. AGGRIEVED THE ASSESSEE IS IN AP PEAL BEFORE US. 4. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT IDENTICAL ISSUE, IN ITS OWN CASE, HAD COME UP BEFOR E THE TRIBUNAL AND THE TRIBUNAL HAD SET ASIDE THE MATTER TO THE FILE OF THE ASSESSI NG OFFICE FOR FINDING OF FACT REQUIRED TO DECIDE THE ISSUE. THE LEARNED DR, ON T HE OTHER HAND, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE HAVE AL SO GONE THROUGH THE ORDER OF THE ORDER TRIBUNAL DATED 15.02.2017, IN THE ASSE SSEES OWN CASE, IN ITA NOS. 3874/MUM/2013 FOR A.Y. 2006-07 AND ORS, WHEREIN IT HAS BEEN HELD AS UNDER: 7. WE HAVE GONE THROUGH THE ORDERS PASSED BY LOWER AUTHORITIES AND FIND THAT THE REQUISITE FINDING OF FACT TO DECI DE THE ISSUE BEFORE US IS CONSPICUOUSLY MISSING; THEREFORE WE SEND THE MATTER TO THE FILE OF THE AO. THE ASSESSEE SHALL SUBMIT ALL REQUISITE DETAIL S AND EVIDENCES TO SHOW COMPLIANCE OF ALL THE CONDITIONS OF SECTION 10B INC LUDING THE CONDITION OF OLD PLANT AND MACHINERY BEING LESS THAT 20%. THE A O SHALL TAKE INTO ACCOUNT THE FACTS OF THE CASE AND ALSO JUDGEMENTS P LACED BY BOTH THE SIDES BEFORE US TO DECIDE WHETHER THE ASSESSEE WOUL D BE ELIGIBLE TO CLAIM THE DEDUCTION IN A.Y. 2006-07 (THIRD YEAR OF FORMAT ION OF UNIT) PARTICULARLY WHEN ALL THE CONDITIONS WERE NOT FULFILLED IN AY 20 03-04, BEING FIRST YEAR OF THE FORMATION. THE ASSESSEE SHALL BE FREE TO RA ISE ALL THE LEGAL AND FACTUAL ISSUES IN THIS REGARD. WITH THESE DIRECTIO NS, ALL THE GROUNDS ARE SENT BACK TO THE FILE OF THE AO AND MAY BE TREATED AS ALLOWED, FOR STATISTICAL PURPOSES. ITA NO.03/MUM/2017 SOEX INDIA PVT LIMITED 3 FACTS AND CIRCUMSTANCES BEING IDENTICAL, WE SET ASI DE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR THE YEAR UNDER APPEAL ALSO WI TH A DIRECTION TO DETERMINE THE REQUISITE FINDINGS AS DIRECTED BY THE TRIBUNAL IN I TS ORDER DATED 15.02.2017 (SUPRA). THE ASSESSEE SHALL PROVIDE ALL THE EVIDENCES TO SHO W THE COMPLIANCE FOR AVAILING DEDUCTION U/S. 10B OF THE ACT. NEEDLESS TO MENTI ON, THE ASSESSING OFFICER, IN THE ENSUING PROCEEDINGS, SHALL ALLOW REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER PASS AN ORDER IN ACCORDANCE WITH LAW. 6. THUS, FOR STATISTICAL PURPOSES THE APPEAL IS TRE ATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 0 TH JUNE 2018. SD/- SD/- (PAWAN SINGH) (G S PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 20 TH JUNE, 2018. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T , MUMBAI. 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI