MANILAL DAYALJI & COMPANY, Dhamtari(C.G) V. THE CIT, RAIPUR (CG)

ITA 32/BIL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8919 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Assessee Lawyers: R B DOSHI
• Keywords: Revision of order; Competent authority
• Section: 143(3); 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI RAM LAL NEGI, JUDICIAL MEMBER) ITA. NO: 32/RPR/2014 (ASSESSMENT YEAR: 2009-10) MANILAL DAYALJI & COMPANY GOLA BIDI WORKS, SADAR BAZAR, DHAMTARI (C.G.) V/S THE COMMISSIONER OF INCOME TAX, RAIPUR (C.G) (APPELLANT) (RESPONDENT) PAN: AAPPT0319Q APPELLANT BY : SHRI R. B. DOSHI, C.A. RESPONDENT BY : SHRI P.K. MISHRA, D.R. ( )/ ORDER DATE OF HEARING : 07-03-2018 DATE OF PRONOUNCEMENT : 09 -03-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE V ALIDITY OF THE ORDER OF THE LD.CIT, RAIPUR DATED 18.03.2014 FRAMED U/S. 263 OF THE ACT. ITA NO. 32/RPR/2014 . A.Y. 2009-10 2 2. THE ASSESSEE CONTENDS THAT THE LD. CIT HAS WRONGLY ASSUMED THE JURISDICTION U/S. 263 OF THE ACT, WHEN THE ASSESSMENT ORDER DATE D 23.12.2011 FRAMED U/S. 143(3) OF THE ACT IS NEITHER ERRONEOUS NOR PREJUDIC IAL TO THE INTEREST OF THE REVENUE. 3. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIV AL SUBMISSIONS AND WITH THE ASSISTANCE OF THE LD. COUNSEL, WE HAVE CAREFULLY CO NSIDERED THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD IN THE LIGH T OF RULE 18(6) OF THE ITAT RULES. 4. VIDE ORDER DATED 23.12.2011, THE RETURNED INCOME OF RS. 5,63,43,150/- WAS ASSESSED AT RS. 5,68,07,060/-. ASSUMING THE JURISDI CTION BESTOWED UPON HIM BY THE PROVISIONS OF SECTION 263 OF THE ACT. THE LD. C IT ISSUED NOTICE DATED 22.01.2014 WHICH IS AS UNDER:- TO, DATE: 22.01.2014 M/S. MANILAL DAYALJI & COMPANY GOLA BIDI WORKS, AMAPARA, WARD, SADAR BAZAR, RAIPUR. PAN : AAGFM4587N SUBJECT: NOTICE U/S 263 OF INCOME-TAX ACT, 1961 FOR A.Y. 2009-10 REGARDING ON EXAMINATION OF YOUR INCOME TUX RECORDS FOR THE A BOVE ASSESSMENT YEAR, 1 FIND THAT THE ORDER PASSED U/S 143(3) ON 23.12.2011 OF T HE INCOME TAX ACT 1961 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE IN THE FOLLOWING MANNER: ON VERIFICATION OF YOUR RECORD IT IS FOUND THAT: (I) YOU HAVE CLAIMED DEDUCTION OF RS. 15,68,225/- U/S 8 01B. THE CLAIM WAS TWENTY FIVE PERCENT OF PROFIT OF THE PRADHANPALLI U NIT. AS PER IT ACT 1961, A SMALL SCALE INDUSTRIAL UNDERTAKING (SSI), TO CLAIM THE; DEDUCTION U/S 801B SHOULD PRODUCE FORM I0CCB DULY FILLED. YOU HAVE NEI THER PRODUCED ITA NO. 32/RPR/2014 . A.Y. 2009-10 3 CERTIFICATE FROM COMPETENT AUTHORITY REGARDING SSI NOR SUBMITTED MANDATORY I0CCB FORM DULY FILLED IN ALL RESPECT. TH US, THE CLAIM OF DEDUCTION U/S 80 1B AT RS.15,68,225/- SHOULD HAVE B EEN DISALLOWED BY THE ASSESSING OFFICER (II) IT. IS FURTHER SEEN THAT YOU HAVE RECEIVED IT REFUN D FOR A.YR.2006-07 AMOUNTING TO RS.45,25,130/- WHICH INCLUDES INTEREST COMPONENT OF RS.1,94,864/-. THE INTEREST INCOME OF RS. 1,94,864/ - HAS NOT BEEN OFFERED FOR TAXATION WHICH RESULTED IN UNDER ASSESSMENT OF INCOME BY RS. 1.94.864/-. IN VIEW OF THESE FACTS, THE ORDER PASSED BY THE ASS ESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT EREST OF REVENUE. IN THESE CIRCUMSTANCES, IT IS PROPOSED TO TAKE REMEDIAL ACTI ON UNDER SECTION 263 OF THE IT ACT, 1961. YOU ARE, THEREFORE, REQUESTED TO SHOW CAUSE AS TO WHY REMEDIAL ACTION U/S 263 SHOULD NOT BE TAKEN. YOUR C ASE IS FIXED FOR HEARING ON 28.01.2014 AT 12.15 P.M. AT THE OFFICE OF THE CO MMISSIONER OF INCOME- TAX. CENTRAL REVENUE BUILDING, CIVIL LINES, RAIPUR. PLEASE NOTE THAT IN CASE OF NON-APPEARANCE OR NON-R ECEIPT OF ANY WRITTEN SUBMISSION, IF WILL BE SUBMITTED THAT YOU HAVE NO O BJECTION TO THE PROPOSED ACTION U/S 263 OF THE I.T. ACT. 1961. 5. A PERUSAL OF THE AFORE-STATED FACTS SHOWS THAT THE FIRST ALLEGATION OF THE LD. CIT IS THAT THE ASSESSEE HAS NEITHER PRODUCED CERTIFICA TE FROM COMPETENT AUTHORITY NOR HAS SUBMITTED THE AUDIT REPORT IN FORM 10CCB. 6. INSOFAR AS THE NON SUBMISSION OF THE AUDIT REPORT I S CONCERNED, THE HONBLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF MEDICAP S LTD. 323 ITR 554 HAS UPHELD THE FINDINGS OF THE TRIBUNAL WHICH HELD THAT THE AUDIT REPORT IS PROCEDURAL AND DIRECTORY IN NATURE AND THE SAME CAN BE FILED AT THE APPELLATE STAGE. IT IS A FACT THAT THE AUDIT REPORT WAS MADE AVAILABLE TO THE LD. CIT DURING THE PROCEEDINGS U/S. 263 OF THE ACT. 7. ITAT MUMBAI BENCH IN THE CASE OF KEWAL KIRAN CLOTHI NG PVT. LTD. IN ITA NO. 2173/MUM/2009 HAD THE OCCASION TO CONSIDER AN I DENTICAL ISSUE WHEREIN ITA NO. 32/RPR/2014 . A.Y. 2009-10 4 THE CLAIM OF DEDUCTION U/S. 80IB OF THE ACT WAS FOR THE TENTH YEAR AND HELD THAT SINCE THE ASSESSEE HAS FILED THE AUDIT REPORT BEFORE THE LD. CIT, NO ADVERSE INFERENCE SHOULD BE DRAWN IN PROCEEDINGS U/S. 263 O F THE ACT. 8. MOST IMPORTANTLY, THE CLAIM OF DEDUCTION U/S. 80IB OF THE ACT IS FOR THE TENTH YEAR WHICH MEANS THAT THE A.O. HAD ALLOWED THE CLAI M OF DEDUCTION IN PREVIOUS NINE YEARS. THEREFORE, WE HAVE NO HESITATION TO HOL D THAT THE ASSUMPTION OF JURISDICTION U/S. 263 OF THE ACT IS BAD IN LAW. 9. INSOFAR AS THE ALLEGATION THAT THE ASSESSEE IS NOT REGISTERED AS AN SSI UNIT IS CONCERNED, WE FIND THAT U/S. 80IB (14) CLAUSE G, TH ERE IS NO SUCH REQUIREMENT. THEREFORE, IT CANNOT BE SAID THAT THE ASSESSMENT OR DER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE TO THIS EXTENT ALSO. 10. INSOFAR AS THE INTEREST ON I.T. REFUND IS CONCERNED , WE FIND THAT THE ASSESSEE HAS FURNISHED THE COPY OF INTEREST ACCOUNT BEFORE THE L D. CIT SHOWING THAT THE ASSESSEE HAS ALREADY CREDITED THE INTEREST AMOUNT T O INTEREST ACCOUNT. THEREFORE, THERE IS NO QUESTION OF ANY UNDER ASSESSMENT. 11. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, WE S ET ASIDE THE ORDER OF THE LD. CIT AND RESTORE THAT OF THE A.O. FRAMED U/S. 143(3) OF THE ACT. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON - 03- 2018 SD/- SD/- (RAM LAL NEGI) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER RAIPUR: DATED 09 /03/2018