BARRIER FILMS P. LTD, MUMBAI V. DCIT 8(1), MUMBAI

ITA 3284/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84052 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-11-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 10-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUDALPHIN DSOUZA
• Section: 28

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI .., . .!'#, $ , % BEFORE SHRI I.P.BANSAL, JM AND SHRI N.K.BILLAIYA, A M ITA NO.3284/MUM/2012 : ASST.YEAR 2003-04 M/S. BARRIER FILMS PVT. LTD. B/31, GR.FLOOR, NEW EMPIRE INDL. ESTATE, KONDIVITA ROAD, ANDHERI (EAST), MUMBAI 400 059. PAN:AAACB 3298C THE DCIT 8(1), MUMBAI. ( &' / // / APPELLANT) / VS. ( )*&'/ RESPONDENT) &' + , + , + , + , /APPELLANT BY : SHRI NONE )*&' + , + , + , + , /RESPONDENT BY : SHRI RUDALPHIN DSOUZA + -.$ / / / / DATE OF HEARING : 03.11.2014 /01 + -.$ / DATE OF PRONOUNCEMENT : 03.11.2014 2 2 2 2 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-16, MUMBAI DATED 10.02.2012 FO R ASSESSMENT YEAR 2003- 04. GROUND OF APPEAL READ AS UNDER: 1. RESTRICTION ON CLAIM OF DEDUCTION U/S. 8OHHC - R S. 6,23,720!- A) THE ID. CIT (A) ERRED IN RESTRICTING THE CLAIM W ITHOUT APPRECIATING THAT THE CLAIMS U/S. 8OHHC AND SEC. 801B ARE INDEPENDENT AND IT IS NOT NECESSARY THAT BEFORE GRANTING DEDUCTION U/S. 8OHHC, THE DEDUCTION GRANTE D U/S.801B SHOULD BE DEDUCTED FROM GROSS TOTAL INCOME IN ORDER TO RESTRI CT THE BENEFIT OF DEDUCTION U/S. 8OHHC ON THE AVAILABLE BALANCE. THEREFORE, THE IMPU GNED ORDER IS PERVERSE BY NATURE AND IMPLICATION AND THE SAME MAY BE VACATED. B) THE ID. CIT(A) OUGHT TO HAVE APPRECIATED THAT SE C.8OHHC SPEAKS OF THE PROFIT OF THE BUSINESS WHICH IS COMPUTED AS PER THE PROVISION OF SEC. 28 TO 41 AND THE DEDUCTION U/S. 801B IS NOT REQUIRED TO BE DEDUCTED WHILE GRANTING DEDUCTION U/S. 8OHHC WHICH IS INDEPENDENT AND A CODE BY ITSELF. 2. LEVY OF PENAL INTEREST THE APPELLANT, ON MERITS, DENIES ITS LIABILITY TO P ENAL INTEREST. ITA NO.3284/MUM/2012 : ASST.YEAR 2003-04 2 2. ON THE FIXED DATE OF HEARING NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, IT WAS FAIRLY SUBMITTED BY LD. DR THAT THE ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPEAL IS DECIDED BY LD. CIT(A) ON T HE BASIS OF DECISION HONBLE DELHI HIGH COURT IN THE CASE OF M/S. GREAT EASTERN EXPORTS VS. CIT 332 ITR 14(DELHI). HE SUBMITTED THAT THE SAID DECISION REN DERED BY HONBLE DELHI HIGH COURT HAS BEEN DISSENTED WITH BY HONBLE BOMBAY H IGH COURT IN THE CASE OF ASSOCIATED CAPSULES PVT. LTD., 332 ITR 42 (BOM). THEREFORE, HE SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE DECIDED ACC ORDINGLY. 3. WE HAVE CAREFULLY PERUSED THE ORDER PASSED B Y LD.CIT(A) AND WE FIND THAT LD. CIT(A) HAS IGNORED THE SUBMISSIONS OF THE ASSESSEE IN WHICH THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF MUM BAI TRIBUNAL IN THE CASE OF SISTER CONCERN NAMELY M/S. ANAND POLYROTEX VS. DCIT AND DECIDED THE ISSUE AGAINST THE ASSESSEE BY FOLLOWING THE AFOREMENTIONE D DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF GREAT EASTERN EXPORTS VS. CIT (SUPRA). THE AFOREMENTIONED DECISION OF DELHI HIGH COURT WAS R ENDERED ON 29/11/2010. THE ORDER PASSED BY LD. CIT(A) IS DATED 10/02/20 12 AND THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. ASSOC IATED CAPSULES PVT. LTD. VS. DCIT (SUPRA) WAS RENDERED ON 10/1/2011 AND IT WAS EXISTING WHEN LD. CIT(A) HAS PASSED THE IMPUGNED ORDER. ACCORDING T O THE SAID DECISION HONBLE BOMBAY HIGH COURT HAS HELD THAT TRIBUNAL WAS NOT R IGHT IN HOLDING THAT SECTION 80IA(9) OF THE INCOME TAX ACT, 1961 (THE AC T) MANDATES THAT THE AMOUNT OF PROFITS ALLOWED AS DEDUCTION UNDER SECTI ON 80IA(1) OF THE ACT HAVE TO BE REDUCED FROM THE PROFITS OF THE BUSINESS OF THE UNDERTAKING WHILE COMPUTING DEDUCTION UNDER ANY OTHER PROVISIONS UNDE R THE HEADING C IN CHAPTER VIA OF THE ACT. WHILE HOLDING SO, THEIR L ORDSHIPS HAVE DISSENTED WITH THE DECISION RENDERED BY HONBLE DELHI HIGH COURT I N THE CASE OF M/S. GREAT EASTERN EXPORTS VS. CIT (SUPRA). ACCORDINGLY, SITT ING IN THE JURISDICTION OF HONBLE BOMBAY HIGH COURT LD. CIT(A) HAS COMMITTED AN ERROR IN NOT FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT. ACCORDINGLY, WE SET ASIDE HIS ORDER AND DIRECT THE AO TO RE-COMPUTE THE DEDU CTION AS WELL AS TOTAL INCOME OF THE ASSESSEE AS PER DECISION OF HONBLE B OMBAY HIGH COURT IN THE CASE OF M/S. ASSOCIATED CAPSULES PVT. LTD. VS. DCIT (SUPRA). WE ORDER ACCORDINGLY. ITA NO.3284/MUM/2012 : ASST.YEAR 2003-04 3 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD NOV. 2014. 2 + /01 34 03/11/2014 0 + : SD/- SD/- (N.K.BILLAIYA) (I.P.BANSAL) $ $ $ $ / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 3 DATED : 3RD NOV. 2014. VM. 2 + )-! ; !1- 2 + )-! ; !1- 2 + )-! ; !1- 2 + )-! ; !1-/ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. )*&' / THE RESPONDENT. 3. <() / THE CIT, MUMBAI. 4. < / CIT(A)- , MUMBAI 5. !?: )-, , / DR, ITAT, MUMBAI 6. :@ A / GUARD FILE. 2 2 2 2 / BY ORDER, *!- )- //TRUE COPY// B BB B/ // /C D C D C D C D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI