Anwesha Comtech Engg.Pvt.Ltd., Baroda V. The ACIT.,Circle-1(1), Baroda

ITA 3225/AHD/2008

• Counselvise Citation: 322520514 RSA 2008
• Duration Of Justice: 3 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-01-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 17-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIVASTAVA
• Assessee Lawyers: M J SHAH
• Keywords: Opportunity of being heard; Valuation report
• Section: 80IB

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !'# !'# !'# !'#, , , , $ $ $ $ . .. . . .. .% % % % , , , , &' % &' % &' % &' % & # & # & # & # BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND B.R. BASKARAN, ACCOUNTANT MEMBER) ITA NO.3225/AHD/2008 [ASSTT.YEAR : 2004-2005] ANWESHA COMTECH ENGG. PVT. LTD. E-60A, KALPAVRUX, OPP: SUB STATION, GOTRI ROAD, BARODA. /VS. ACIT, CIR.1(1) BARODA. ( (( ()* )* )* )* / APPELLANT) ( (( (+,)* +,)* +,)* +,)* / RESPONDENT) -. / 0 &/ ASSESSEE BY : SHRI M.J. SHAH % / 0 &/ REVENUE BY : SHRI P.K.SRIVASTAVA 2 / .3'/ DATE OF HEARING : 17 TH JANUARY, 2012 456 / .3'/ DATE OF PRONOUNCEMENT : 03-02-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR THE ASSTT.YEAR 2004-2005 IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, BARODA. 2. THE GROUNDS OF APPEAL OF THE ASSESSEE READ AS UN DER: 1. THE CIT(A) ERRED IN HOLDING THE DISALLOWANCE OF RS.5,68,380/- UNDER SECTION 80IB BY NOT APPRECIATIN G THE FACT THAT THE APPELLANT WAS A SMALL SCALE INDUSTRIAL UNDERTAK ING, AND THEREFORE, DEDUCTION UNDER SECTION 80IB SHOULD HAVE BEEN GRANTED TO THE APPELLANT. 2. THE CIT(A) IN THE PROCESS OF DISALLOWANCE ERRED IN HOLDING THAT THE APPELLANT DID NOT FULFILL THE CONDITION OF BEING A SMALL SCALE INDUSTRIAL UNDERTAKING. ITA NO.3225/AHD/2008 -2- 3 . THE CIT(A)ERRED IN LAW AND ON FACTS IN DISALLOWIN G LIQUIDATED DAMAGES AMOUNTING TO RS.31,494/-. 4. THE CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.20,000/- ON THE GROUND THAT EXPENSES IN SUCH TH AT POSSIBILITY OF ELEMENT OF NON-BUSINESS USE CANNOT BE ALTOGETHER RU LED OUT. 5. THE CIT(A) ERRED IN CHARGING INTEREST UNDER SECT ION 234B, 234C AND 234D OF THE IT ACT, 1961. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT IN ALL FAIRNESS, THE ISSUES RAISED IN THE GROUNDS OF THE APPEAL MAY BE RESTORED TO THE FILE OF THE AO, SINCE THE ASSESSEE HAS FILED EXPERT REPO RT DATED 14.06.2007 BEFORE THE CIT(A) AND NOT BEFORE THE AO. THE LEARN ED DR HAS SUPPORTED THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESS EE AND SUBMITTED THAT THE EXPERT REPORT SHOULD HAVE BEEN FILED BEFORE THE AO. 4. WE HAVE CONSIDERED SUBMISSIONS OF BOTH THE PARTI ES. IN THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT SINCE THE REPORT OF THE EXPERT DATED 14-6-2007 GIVING THE VALUATION REPORT OF THE MACHINERY, EQUIPMENT/ TOOLS AND TACKLES WAS NOT FILED BY THE ASSESSEE BEF ORE THE AO AND THAT THE CONTENTS OF THE EXPERTS REPORT GO TO THE ROOT OF T HE ISSUE OF DISALLOWANCE MADE UNDER SECTION 80IB THAT WHETHER THE ASSESSEE W AS A SMALL SCALE INDUSTRIAL UNDERTAKING, AND ACCORDINGLY, IT SHALL B E IN THE INTEREST OF THE JUSTICE TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER PROVID ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIR ECT ACCORDINGLY. 5. THE OTHER ISSUES RAISED BY THE ASSESSEE IN THE G ROUNDS OF THE APPEAL ARE ALSO RESTORED TO THE FILE OF THE AO FOR FRESH A DJUDICATION IN ACCORDANCE WITH LAW. ITA NO.3225/AHD/2008 -3- 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. .% % % % /B.R. BASKARAN) &' % /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD