SEAL N PACK, MUMBAI V. ITO 24(2)-2, MUMBAI

ITA 3158/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48383 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 06-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 22-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS ASHIMA GUPTA
• Assessee Lawyers: ANIL THAKRAR
• Keywords: Opportunity of being heard
• Section: 6; 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI D.K. AGARWAL (J.M.) AND SHRI RAJENDRA S INGH (A.M.) ITA NO. 3158/MUM /2010 ASSESSMENT YEAR 2005-06 SEAL N. PACK, 111, CIEM INDL ESTATE, KANCHPADA, RAMCHANDRA LANE EXT., MALAD (WEST), MUMBAI 400 064. PAN : AAOFS 5075 M VS. I NCOME TAX OFFICER, WARD 24(2), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL THAKRAR RESPONDENT BY : MRS. ASHIMA GUPTA O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 16.02.2010 PASSED BY THE LD. CIT (A) FOR THE A.Y. 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF BOPP BAGS AND DEAL ER OF BOPP ROLL, FILED RETURN DECLARING TOTAL INCOME OF ` NIL AFTER CLAIMING DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (THE ACT) AT ` 10,92,349/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED BY THE A.O. AS TO WHETHER THE CONDITIONS LAID DOWN UNDER SECTION 8 0IB OF THE ACT ARE SATISFIED FOR CLAIMING DEDUCTION U/S 80IB ALONG WIT H SUPPORTING DOCUMENTARY EVIDENCE LIKE COPY OF INSTALLATION CERT IFICATE FOR THE INSTALLATION OF PLANT AND MACHINERY AND OTHER DETAI LS. IN RESPONSE, THE ASSESSEE FILED WRITTEN SUBMISSIONS DATED 6.12.2007 WHEREIN THE ASSESSEE ITA 3158/M/10 SEAL N PACK 2 FILED CERTAIN DETAILS AND SUBMITTED THAT THE FINANC E ACT 2002, EXTENDED THE TAX HOLIDAY TO NEW UNDERTAKINGS TO BE SET UP IN INDUSTRIALLY BACKWARD STATES AND DISTRICTS UNDER SECTION 80IB, I N RESPECT OF UNDERTAKING SET UP ON OR BEFORE 31.3.2004 VIDE CIR CULAR NO. 8 OF 2002 DATED 27.08.2002 THEREFORE THE DEDUCTION CLAIMED U/ S 80IB BE ALLOWED TO THE ASSESSEE. HOWEVER, THE A.O. WAS OF THE VIEW THA T THE ASSESSEE HAS NOT DONE ANY MANUFACTURING ACTIVITY FROM SILVASA UNIT; THE ASSESSEE IS JUST GIVING COLOURABLE DEVICE BY CLAIMING LOW MANUFACTUR ING EXPENSES AGAINST HUGE PROFIT EARNED FOR CLAIMING DEDUCTION U/S 80IB FOR THE PROFIT WHICH IS NOT ARISED FROM SILVASA UNIT; THE ASSESSEE HAS ALSO NOT FULFILLED THE STATUTORY REQUIREMENTS/CONDITIONS FOR CLAIMING DEDU CTION U/S 80IB SUCH AS TO FURNISH THE FORM NO. 10CCB AND ACCORDINGLY HE DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB OF ` 10,92,349/- AND COMPLETED THE ASSESSMENT AT AN INCOME OF ` 10,92,350/- VIDE ORDER DATED 28.12.2007 PASSED U/S 143(3) OF THE ACT. ON APPEAL, THE LD. CI T(A) IN THE ABSENCE OF ANY EVIDENCE OF FILING FORM NO. 10CCB ALONG WITH TH E RETURN OF INCOME HELD THAT THE A.O. WAS FULLY JUSTIFIED IN DENYING T HE DEDUCTION U/S 80IB OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTENANCE OF DISALLOWANCE OF DEDUCTION U/S 80IB OF THE ACT. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT BEFORE THE LD. CIT(A) THE ASSESSEE HAS FILED FORM NO. 10CCB WHICH HAS BEEN ACKNOWLEDGED BY THE OFFICE OF LD. CIT(A) O N 29 TH DECEMBER, 2009. ON MERIT, HE SUBMITS THAT THE ISSUE IS COVER ED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSES OWN CASE IN SEAL N. PACK VS. ITO IN ITA NO. 3510/M/08 FOR A.Y. 2004-05 ORDER DATED 12.2.2009 WHEREIN THE TRIBUNAL HAS RESTORED BACK TH E ISSUE OF CLAIM OF ITA 3158/M/10 SEAL N PACK 3 DEDUCTION U/S 80IB TO THE FILE OF THE A.O. HE FURTH ER SUBMITS THAT THE A.O. IN PURSUANT TO THE ORDER OF THE TRIBUNAL, HAS ALLOWED THE DEDUCTION U/S 80IB TO THE ASSESSEE VIDE ASSESSMENT ORDER DATE D 8.6.2009 PASSED U/S 143(3) R.W.S. 250 OF THE ACT. HE ALSO PLACED O N RECORD A COPY OF THE SAID ORDER. IN THE LIGHT OF THE ABOVE, HE SUBMITS THAT THE CLAIM OF DEDUCTION U/S 80IB BE ALLOWED TO THE ASSESSEE OR IN ALTERNATIVE THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE A.O. TO EXAMINE THE ISSUE AFRESH. 5. ON THE OTHER HAND, THE LD. D.R. WHILE RELYING ON THE ORDER OF THE A.O. AND LD. CIT(A) SUBMITS THAT SHE HAS NO OBJECTI ON TO SET ASIDE THE ISSUE TO THE FILE OF THE A.O. TO EXAMINE THE ISSUE AFRESH. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND MERIT IN THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL IN T HE IMMEDIATELY PRECEDING YEAR I.E. 2004-05 HAS SET ASIDE THE ISSUE TO THE FILE OF THE A.O. TO EXAMINE THE ALLOWABLITY OF DEDUCTION U/S 80IB AF RESH AND THE A.O. AFTER EXAMINING THE SAME HAS ALLOWED THE DEDUCTION U/S 80IB OF THE ACT VIDE ORDER DATED 8.6.09 PASSED U/S 143(3) R.W.S. 25 0 OF THE ACT. THIS BEING SO AND IN THE ABSENCE OF ANY CONTRARY MATERIA L PLACED ON RECORD BY THE REVENUE AND KEEPING IN VIEW THE RULE OF CONSIST ENCY, WE CONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. AND ACCORDINGLY WE SET ASIDE THE ORDERS PASSED BY T HE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEND BACK THE MATTE R TO THE FILE OF THE A.O. WHO SHALL DECIDE THE SAME AFRESH IN THE LIGHT OF THE DIRECTIONS GIVEN BY THE TRIBUNAL IN THE ORDER FOR A.Y. 2004-05 AND A CCORDING TO LAW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA 3158/M/10 SEAL N PACK 4 7. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15.4.2011 SD/ - (RAJENDRA SINGH) ACCOUNTANT MEMBER SD/ - (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 15.4.2011 RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 34, MUMBA I 4. COMMISSIONER OF INCOME TAX, 24, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA 3158/M/10 SEAL N PACK 5 1 DRAFT DICTATED ON 6.7.11 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 7.4.11 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOU NCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS