DCIT, CC-XIII, Kolkata, Kolkata V. M/s. Haldiram Bhujiwala Ltd., Kolkata

ITA 316/KOL/2010

• Counselvise Citation: 31623514 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 24-06-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 12-02-2010
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion
• Section: 147; 2; 80IB

Judgement Text

, , , , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [ . . . . , ,, , . . ! !! ! . , ] [BEFORE SHRI N. VIJAYA KUMARAN, J. M. & SHRI C. D. RAO, A.M.] $ $ $ $ / I.T.A NO.316/KOL/2010 / // / ASSESSMENT YEAR : 2002-03 DY. COMMISSIONER OF INCOME TAX -VS.- M/S. HALDIRAM BHUJIWALA LIMITED CC-XIII, KOLKATA. KOLKATA [AAACH 6301 A] [ + + + + /APPELLANT ] ]] ] [ -.+ -.+ -.+ -.+/ // / RESPONDENT ] ]] ] / 0 / 0 / 0 / 0 /C.O.NO.27/KOL/2010 $ $ $ $ / A/O ITA NO .316 /KOL/2010 / // / ASSESSMENT YEAR : 2002-03 M/S. HALDIRAM BHUJIWALA LIMITED -VS.- DY. COMMISSIONER OF INCOME TAX KOLKATA [AAACH 6301 A] CC-XIII, KOLKATA. [APPELLANT [CR OSS OBJECTOR ] ]] ] + + + + / FOR THE DEPAARTMENT : SHRI P. S. DUTTA -.+ -.+ -.+ -.+ / FOR THE ASSESSEE : SHRI S. M. SURANA 2 ! 2 ! 2 ! 2 ! /DATE OF HEARING : 25. 11. 2011 2 ! 2 ! 2 ! 2 ! /DATE OF PRONOUNCEMENT : 05.12.2011 /ORDER . . . . , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE DEPARTMENT AND THE CROSS OBJECT ION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A), CENTRAL-II, KOLKATA DATED 12.11.2009 FOR ASSESSMENT YEAR 2002-03. 2. THE GROUNDS OF APPEAL TAKEN BY THE DEPARTMENT AR E AS UNDER :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION OF RS.9,41,364/- U/ S 801 HOLDING THAT THE [ ITA NO.316 & CO. 27.KOL/2010 2 QUESTION WHETHER THE ASSESSEE WAS MANUFACTURING OR PROCESSING CAKES AND SAVOURIES CAN BE DECIDED IN THE INITIAL YEAR ONLY W ITHOUT APPRECIATING THAT THE ESTOPPELS OF RES JUDICATA THAT EVERY ASSESSMENT YEAR IS SEPARATE FROM OTHER. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT ONCE THE RELIEF U/S 801 WAS ALLOWED FOR THE INITIAL ASSESSMENT YEAR, IT WAS NOT OPEN TO DISTURB THE R ELIEF FOR THE SUBSEQUENT YEARS WITHOUT DISTURBING THE RELIEF GRANTED IN T HE INITIAL YEAR. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S 801 OF THE AC T WITHOUT APPRECIATING THE DECISION OF INDIAN HOTELS CO. LTD. REPORTED IN 24 5 ITR 538 (SC), WHEREIN IT IS HELD THAT THE PREPARING OF PROCESSED FOOD D OES AMOUNT TO MANUFACTURING OR PRODUCTION WITHIN THE MEANING O F 801 OF THE ACT. 3. GROUNDS OF CROSS OBJECTION OF THE ASSESSEE ARE A S UNDER :- (1) FOR THAT THE LD. CIT(A) IS ARBITRARY, ILLEGAL AND B AD AND NOT IN ACCORDANCE WITH LAW. (2) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACT ION OF THE AO IN REOPENING THE ASSESSMENT U/S. 147 WHEN IT WAS A MER E CHANGE OF OPINION AND THE PROCEEDINGS U/S. 147 WERE AB-INITIO AND VOI D INVALID. 4. . THE ONLY ISSUE IS THAT WHETHER THE CLAIM OF DEDUCTION UNDER SECTION 80I IS TO BE ALLOWED FOR THIS ASSESSMENT YEAR 2002-03. 5. THE FACTS RELEVANT ARE THAT THE ASSESSEE DERIVES PROFIT FROM THE BUSINESS DEALING IN PROCESSED FOOD. THE ASSESSING OFFICER WAS OF THE VIEW THAT IT WILL NOT AMOUNT MANUFACTURE OR PRODUCTION WITHIN THE MEANING OF SECTION 80IB. HE, THEREFORE, DISALLOWED THE DEDUCTION. ON APPEAL TO THE LD. CIT(A), LD. CIT(A) FOUND THAT THE ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80IB WAS ALLOWED IN FULL IN THE ORIGINAL ASSESSMENT ORDER AND IT IS NOT THE FIRST YEAR OF ASSESSMENT FOR THE PURPOSE OF 80IB DEDUCTION. TO BE SPECIFIC, THIS CLAIM OF 80I D EDUCTION WAS DULY ALLOWED BY THE ASSESSING OFFICER AS IT WAS ALLOWED IN THE ASSESSMENT YEAR 20 01-02. IN OTHER WORDS, IT IS NOT THE FIRST YEAR OF 80I DEDUCTION. THIS OBSERVATION OF LD. CIT(A) COULD NOT BE CONVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE AS IT IS NOT THE INITIAL ASSESSMENT YEAR IN WHICH IT WAS CLAIMED FIRST AND 80I DEDUCTIO N WAS ALREADY ALLOWED IN THE EARLIER ASSESSMENT YEAR 2001-02 AND THAT BEING THE POSITION. IT WAS NOT OPEN TO DISTURB THE RELIEF FOR THE SUBSEQUENT YEARS WITHOUT DISTURBING THE RELIEF GRANTED IN THE INITI AL YEAR AS THERE WAS NO PROVISION FOR WITHDRAWAL OF DE DUCTION FOR THE SUBSEQUENT YEAR. IN OTHER WORDS, [ ITA NO.316 & CO. 27.KOL/2010 3 UNLESS THE RELIEF IS GRANTED IN OTHER YEARS IN BETW EEN YEARS, THIS 80IB RELIEF CAN BE DENIED. UNDER TH E ABOVE FACTS AND CIRCUMSTANCES, IT IS NOT JUSTIFIED TO INTERFERE WITH THE ORDER OF LD. CIT(A). 6. AS WE HAVE DECIDED THE APPEAL OF THE DEPARTMENT ON MERITS IN FAVOUR OF THE ASSESSEE, THE CROSS OBJECTION BECOMES ACADEMIC AND DOES NOT REQUI RE ADJUDICATION AND IT HAS BECOME INFRUCTUOUS. HENCE THE CROSS OBJECTION BECOMES INFR UCTUOUS AND DISMISSED. 5 5 5 5 ! ! ! ! ORDER PRONOUNCED IN THE COURT ON 05.12.2011. SD/- SD/- [ . . ! !! ! . , ] [ . . . . , ,, , ] [ C. D. RAO ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 05.12. 2011. 2 - 9/ COPY OF THE ORDER FORWARDED TO: 1. + /APPELLANT : DY. COMMISSIONER OF INCOME TAX, CC-II I, 18, RABINDRA SARANI, KOLKATA- 700 001. 2 . -.+ / RESPONDENT : M/S. HALDIRAM BHUJIWALA LIMITED, P- 420, KAZI NAZRUL ISLAM AVENUE, KOLKATA -52. 3. - / CIT, 4. ()/ CIT(A), KOLKATA. 5. -/ DR, KOLKATA BENCHES, KOLKATA [. -/ TRUE COPY] / BY ORDER, /ASSTT REGISTRAR [KKC CD E /SR.PS]