SHRI KARAN RAWAT, NAINITAL V. INCOME TAX OFFICER, WARD-5-3, JAIPUR

ITA 330/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2091 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 12-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJVEEN SOGANI; SHVANGI SAMDHANI
• Section: 143(3); 80IC; 80IC; 43; 13; 10; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 330/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 SHRI KARAN RAWAT F-14, SIDC INDUSTRIAL AREA, BHEEMTAL, NAINITAL, UTTARANCHAL, 263136. CUKE VS. THE ITO, WARD-5(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACAPR 4999 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJVEEN SOGANI (C.A.) & MISS SHVANGI SAMDHANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 4/03/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28/04/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 25.01.2019 FOR THE ASSESSME NT YEAR 2014-15 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APP EAL:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING DISALLOWANCE MADE BY LD. A O AMOUNTING TO RS. 40,64,288/- U/S 80IC. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND ARBITRARY AND AGAINST TH E FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY ALLOWING THE SAID D EDUCTION U/ 801C AS CLAIMED BY THE ASSESSEE. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE HAS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 ON 28.11.201 4 DECLARING TOTAL INCOME OF RS. NIL AFTER CLAIMING DEDUCTION U/S 80-I C OF THE INCOME TAX ACT, ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 2 1961. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESS MENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 30.12.2016 WHEREIN THE CLAI M OF DEDUCTION U/S 80-IC OF RS. 40,64,288/- WAS NOT ALLOWED TO THE ASSESSEE. ON APPEAL, THE DENIAL OF CLAIM HAS BEEN SUSTAINED BY THE LD CIT(A) AND HENCE , THE ASSESSEE IS IN APPEAL BEFORE US. 3. DURING THE COURSE OF HEARING, THE LD AR SUBMITTE D THAT ASSESSEE HAS BEEN CLAIMING DEDUCTION UNDER SECTION 80-IC SINCE A .Y. 2011-12 AND THE SAME HAS NEVER BEEN DISALLOWED. FURTHER, FOR A.Y. 2013-1 4, THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 27.03.2016 AN D THE ASSESSEES CLAIM OF 100% DEDUCTION OF THE PROFITS UNDER SECTION 80-IC H AS BEEN ALLOWED. IT WAS SUBMITTED THAT WHERE DEDUCTION IS ALLOWED IN CONTIN UATION OVER A PERIOD, THE ELIGIBILITY HAS TO BE TESTED IN THE FIRST YEAR OF C LAIM. THEREAFTER, THE ELIGIBILITY CANNOT BE QUESTIONED AND THE REVENUE CANNOT BE NOT ALLOWED TO BREACH THE PRINCIPLES OF CONSISTENCY AND IN SUPPORT, RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: SHASUN CHEMICALS & DRUGS LTD VS CIT [2016] 388 ITR 1 (SC) CIT VS MALBOROUGH POLYCHEM (P.) LTD [2009] 309 ITR 43 (RAJ) IT VS WESTERN OUTDOOR INTERACTIVE (P.) LTD [2012] 3 49 ITR 309 (BOM) SAURASHTRA CEMENT & CHEMICAL INDUSTRIES LTD VS CIT [1980] 123 ITR 669 (GUJ) RESISTOFLEX DYNAMICS (P.) LTD VS DCIT [2014] 159 TT J 425 (DELHI- TRIB) TATA COMMUNICATIONS INTERNET SERVICES LTD VS ITO [2 010] 4 ITR(T) 249 (DELHI- TRIB) 4. IT WAS FURTHER SUBMITTED THAT SECTION 80-IC FALL S IN CHAPTER VI-A-(C) OF THE IT ACT, 1961 AND PROVIDES FOR DEDUCTION OF A PE RCENTAGE OF PROFITS AND GAINS DERIVED FROM THE ELIGIBLE BUSINESS WHICH IS C ARRIED OUT THROUGH THE UNDERTAKING/ ENTERPRISE SITUATED IN THE SPECIFIED S TATES. AN ENTERPRISE SITUATED ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 3 IN UTTARANCHAL CAN CLAIM DEDUCTION UNDER SECTION 80 -IC(2)(A) AS WELL AS 80- IC(2)(B) SUBJECT TO FULFILLMENT OF CERTAIN CONDITIO NS. THE RELEVANT PROVISIONS OF SECTION 80-IC(2) READ AS UNDER:- SECTION 80-IC: SPECIAL PROVISIONS IN RESPECT OF CER TAIN UNDERTAKINGS OR ENTERPRISES IN CERTAIN SPECIAL CATE GORY STATES (2)THIS SECTION APPLIES TO ANY UNDERTAKING OR ENTER PRISE, (A) WHICH HAS BEGUN OR BEGINS TO MANUFACTURE OR PRO DUCE ANY ARTICLE OR THING, NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE THIRTEENTH SCHEDULE, OR WHICH MANUFACTURES OR PRODUCES ANY ARTICLE OR TH ING, NOT BEING ANY ARTICLE OR THING SPECIFIED IN THE THIRTEENTH SCHEDU LE AND UNDERTAKES SUBSTANTIAL EXPANSION DURING THE PERIOD BEGINNING (II) ON THE 7TH DAY OF JANUARY, 2003 AND ENDING BEF ORE THE 1ST DAY OF APRIL, 2012, IN ANY EXPORT PROCESSING ZONE OR INTEG RATED INFRASTRUCTURE DEVELOPMENT CENTRE OR INDUSTRIAL GROWTH CENTRE OR I NDUSTRIAL ESTATE OR INDUSTRIAL PARK OR SOFTWARE TECHNOLOGY PARK OR INDU STRIAL AREA OR THEME PARK, AS NOTIFIED BY THE BOARD IN ACCORDANCE WITH T HE SCHEME FRAMED AND NOTIFIED BY THE CENTRAL GOVERNMENT IN THIS REGARD, IN THE STATE OF HIMACHAL PRADESH OR THE STATE OF UTTARANCHAL (B) WHICH HAS BEGUN OR BEGINS TO MANUFACTURE OR PRO DUCE ANY ARTICLE OR THING, SPECIFIED IN THE FOURTEENTH SCHEDULE OR COMM ENCES ANY OPERATION SPECIFIED IN THAT SCHEDULE, OR WHICH MANUFACTURES O R PRODUCES ANY ARTICLE OR THING, SPECIFIED IN THE FOURTEENTH SCHEDULE OR C OMMENCES ANY OPERATION SPECIFIED IN THAT SCHEDULE AND UNDERTAKES SUBSTANTIAL EXPANSION DURING THE PERIOD BEGINNING ... ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 4 (II) ON THE 7TH DAY OF JANUARY, 2003 AND ENDING BEF ORE THE 1ST DAY OF APRIL, 2012, IN THE STATE OF HIMACHAL PRADESH OR TH E STATE OF UTTARANCHAL; . 5. A PERUSAL OF ABOVE PROVISIONS REVEALS THAT DEDUC TION UNDER SECTION 80- IC(2) CAN BE CLAIMED BY AN ENTERPRISE SITUATED IN U TTARANCHAL UNDER TWO CLAUSES SUBJECT TO FULFILLMENT OF CERTAIN CONDITION S. 1. SECTION 80-IC(2)(A): A. THE UNDERTAKING IS NOT ENGAGED IN MANUFACTURING OR PRODUCING ANY ARTICLE/ THING AS SPECIFIED IN THIRTEENTH SCHED ULE. B. THE UNDERTAKING BEGINS MANUFACTURING AFTER 07.01.20 03 BUT BEFORE 01.04.2012. C. THE UNDERTAKING IS SITUATED IN AN AREA WHICH IS NOT IFIED BY THE BOARD IN ACCORDANCE WITH THE SCHEME. 2. SECTION 80-IC(2)(B): A. THE UNDERTAKING IS ENGAGED IN MANUFACTURING OR PROD UCING ANY ARTICLE/ THING AS SPECIFIED IN FOURTEENTH SCHEDULE. B. THE UNDERTAKING BEGINS MANUFACTURING AFTER 07.01.20 03 BUT BEFORE 01.04.2012. C. THE UNDERTAKING IS SITUATED IN THE STATE OF UTTARAN CHAL. 6. IT WAS SUBMITTED THAT BOTH THE CLAUSES I.E. 80-I C(2)(A) AND 80-IC(2)(B) ARE OVERLAPPING UNDER CERTAIN CIRCUMSTANCES AND IN THOSE CIRCUMSTANCES, THEREFORE, BOTH ARE NOT MUTUALLY EXCLUSIVE. ANY ASS ESSEE WHOSE UNDERTAKING IS SITUATED IN NOTIFIED AREA CAN CLAIM DEDUCTION IN EI THER OF THE CLAUSES OR EVEN IN BOTH CLAUSES. SINCE THE ASSESSEES UNDERTAKING IS S ITUATED IN NOTIFIED AREA, THE ASSESSEES CASE ALSO FALLS IN BOTH THE CLAUSES. THE SAME IS EXPLAINED AS UNDER: ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 5 1. SECTION 80-IC(2)(A) A. THE UNDERTAKING IS NOT ENGAGED IN MANUFACTURING OR PRODUCING ANY ARTICLE/ THING AS SPECIFIED IN THIRTEENTH SCHED ULE. B. THE UNDERTAKING BEGAN MANUFACTURING AFTER 07.01.200 3 AND ALSO BEFORE 01.04.2012 I.E. ON 27.03.2010. C. THE UNDERTAKING IS SITUATED AT F-14, SIDC INDUSTRIA L AREA, BHIMTAL, NAINITAL, UTTARANCHAL 263136 WHICH IS AT KHASRA NOS. 687, 689 IN NAINITAL TEHSIL WHICH FALLS IN THE NOTI FICATION NO. 177/2004 [SO 741] [F.NO. 142/47/2003-TPL] DATED 28- 06-2004 ISSUED BY CBDT IN ACCORDANCE WITH THE SCHEME. 2. SECTION 80-IC(2)(B) A. THE UNDERTAKING IS ENGAGED IN MANUFACTURING OF TV, DVD, LCD MANUFACTURING WHICH FALLS UNDER ENTRY 13 OF FOURTEE NTH SCHEDULEI.E., INFORMATION AND COMMUNICATION TECHNO LOGY INDUSTRY, COMPUTER HARDWARE, CALL CENTERS'. B. THE UNDERTAKING BEGAN MANUFACTURING AFTER 07.01.200 3 AND ALSO BEFORE 01.04.2012 I.E. ON 27.03.2010. C. THE UNDERTAKING IS SITUATED IN THE STATE OF UTTARAN CHAL. 7. IT WAS FURTHER SUBMITTED THAT ALONG WITH RETURN OF INCOME, ASSESSEE FILED FORM-10CCB FOR CLAIMING DEDUCTION U/S 80-IC. AS SUBMITTED ABOVE, THE CASE OF THE ASSESSEE FALLS IN BOTH THE CLAUSES, THE REFORE, THE AUDITOR, IN FORM- 10CCB, REPORTED THAT THE UNDERTAKING OF ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IC(2) AS THE UNDERTAKING IS SITUAT ED IN THE STATE OF UTTARANCHAL AND IS ENGAGED IN MANUFACTURING OF TV, LCD ETC. 8. IT WAS FURTHER SUBMITTED THAT DURING THE ASSESSM ENT PROCEEDINGS ITSELF, THE ASSESSEE FILED FORM-10CCB AS REVISED BY THE AUD ITOR HEREIN THE AUDITOR CATEGORICALLY REPORTED THAT ASSESSEES UNDERTAKING IS SITUATED AT KHASRA NO. ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 6 687, 689 AND MANUFACTURES TV, DVD, LCD AND THEREFOR E, HAS CLAIMED DEDUCTION U/S 80-IC(2)(A)(II). IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF ITO VS. NOVELTY GARMENTS 175 CTR 306. THUS, DURING ASSESSMENT PROCEEDINGS, IT WAS CL ARIFIED THAT PRE- DOMINANTLY THE ELIGIBILITY OF THE ASSESSEE FALLS UN DER 80-IC(2)(A)(II). DURING APPELLATE PROCEEDINGS, THE OVERLAPPING SITUATION OF ELIGIBILITY WAS ALSO EXPLAINED BEFORE THE LD CIT(A). 9. IT WAS FURTHER SUBMITTED THAT ON ACCOUNT OF ORIG INAL FORM-10CCB, THE AO DID NOT EXAMINE THE REVISED FORM 10CCB AND BASED HIS OPINION ON THE EARLIER FORM 10CCB WHERE THE CLAIM WAS UNDER BOTH T HE CLAUSES BEING OVERLAPPING SITUATION. FURTHER, THE AO DISALLOWED D EDUCTION U/S 80-IC BY HOLDING THAT THE CASE OF ASSESSEE DOES NOT FALL UND ER SECTION 80IC(2)(B) BECAUSE ASSEMBLING AND MANUFACTURING OF TELEVISION/ LED AND BLASTER OF CFL BULBS, IN HIS OPINION, WERE NOT COVERED UNDER THE E NTRIES MENTIONED IN FOURTEENTH SCHEDULE. IT WAS SUBMITTED THAT THE ASSE SSEES CASE FALLS UNDER SECTION 80-IC(2)(B) HOWEVER, PRE-DOMINANTLY IT FALL S UNDER SECTION 80IC(2)(A) BECAUSE:- A) THE ASSESSEE IS NOT PRODUCING ANY ARTICLE OR THING WHICH IS STATED IN THIRTEENTH SCHEDULE. B) THE UNDERTAKING OF THE ASSESSEE IS SITUATED IN THE NOTIFIED INDUSTRIAL AREA (CBDT NOTIFICATION NO. 177/2004 DATED 28.06.20 04) WHICH CAN BE PROVED WITH THE FOLLOWING: I. CBDT NOTIFICATION NO. 177/2004 DATED 28.06.2004 WHE REIN THE KHASRA NOS. ON WHICH THE UNDERTAKING OF THE ASSESSE E IS SITUATED IS FINDING MENTIONED. ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 7 II. COMMUNICATION FROM TEHSILDAR, NAINITAL, SUPERINTEND ENT CENTRAL EXCISE RANGE, HALDWANI AND ASSISSTANT COMISSIONER C ENTRAL EXCISE, HALDWANI CONFIRMING THE FACT THAT THE UNDER TAKING OF ASSESSEE IS SITUATED AT KHASRA NO. 687 AND 689. III. COMMUNICATION FROM CHIEF MANAGER INDUSTRY CENTRE, N AINITAL WHEREIN THE LIST OF AREAS NOTIFIED FOR EXEMPTION FR OM PAYMENT OF CENTRAL EXCISE DUTY AS WELL AS FROM INCOME TAX WAS ENCLOSED. THE KHASRA NOS. OF THE ASSESSEE 687 AND 689 FIND ME NTION IN THE LIST OF NOTIFIED AREAS [PB 113-118]. THE LETTER IS AS UNDER: 10. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) ER RED IN DISMISSING THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- .. ON PERUSAL OF ALL FACTS I FIND THAT THE UNIT OF THE ASSESSEE IS SITUATED IN THE INDUSTRIAL AREA DEVELOPED BY UPSIDC. AS PER CEN TRAL EXERCISE NOTIFICATION NO. 50/2003, THE SAID UNIT IS ALSO ELI GIBLE FOR EXEMPTION FOR A PARTICULAR PERIOD FROM EXCISE DUTY. BUT THERE IS NO NOTIFICATION ON RECORD ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 8 ISSUED BY CBDT NOTIFYING SUCH INDUSTRIAL AREA WHERE AS UNIT IS SITUATED MAKING IT ELIGIBLE FOR DEDUCTION UNDER SECTION 80-I C 11. IN THIS REGARD, IT WAS SUBMITTED THAT CBDT HAS ISSUED NOTIFICATION NO. 177/2004 [SO 741] [F.NO. 142/47/2003-TPL], DATED 28 .06.2004. THE KHASRA NO. ON WHICH THE UNDERTAKING OF THE ASSESSEE IS SIT UATED FIND MENTION IN THE NOTIFICATION. FURTHER, CBDT NOTIFICATION REQUIRES T HE STATE TO NOTIFY THE INDUSTRIAL AREAS OR ESTATES WHICH CAN CLAIM DEDUCTI ON U/S 80-IC. THE RELEVANT EXTRACT OF THE NOTIFICATION IS AS UNDER: IN EXERCISE OF POWERS CONFERRED BY SUB-CLAUSE (II) OF CLAUSE (A) OF SUB- SECTION (2) OF SECTION 80-IC OF THE INCOME-TAX ACT, 1961 (43 OF 1961), THE CENTRAL BOARD OF DIRECT TAXES HEREBY NOTIFIES THE F OLLOWING KHASRA NUMBERS MENTIONED IN COLUMN (3) OF THE SCHEDULE BEL OW, IN RESPECT OF THE TEHSILS OR SUB-TEHSILS OF THE STATE OF UTTARANCHAL SPECIFIED IN THE CORRESPONDING ENTRY IN COLUMN (4) OF THE SAID SCHED ULE, AS THE INDUSTRIAL ESTATES OR INDUSTRIAL AREAS DESIGNATED IN THE CORRE SPONDING ENTRY IN COLUMN (2) OF THE SAID SCHEDULE, FOR THE PURPOSES O F THE SAID SECTION. (2) THIS NOTIFICATION SHALL COME INTO FORCE ON THE DATE OF ITS PUBLICATION IN THE OFFICIAL GAZETTE: PROVIDED THAT IN RESPECT OF THE INDUSTRIAL ESTATES OR INDUSTRIAL AREAS, AS THE CASE MAY BE, MENTIONED IN THE SCHEDULE, WHICH H AVE NOT BEEN NOTIFIED OR DESIGNATED AS SUCH BY THE STATE GOVERNMENT OF UT TARANCHAL, THIS NOTIFICATION SHALL TAKE EFFECT FROM THE DATE ON WHI CH SUCH INDUSTRIAL ESTATES OR INDUSTRIAL AREAS ARE NOTIFIED OR DESIGNATED BY T HAT STATE GOVERNMENT [EMPHASIS SUPPLIED] 12. IT WAS SUBMITTED THAT CONSEQUENT TO THE ABOVE N OTIFICATION, STATE INFRASTRUCTURE AND INDUSTRIAL DEVELOPMENT CORPORATI ON OF UTTARAKHAND LTD ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 9 (SIDCUL) NOTIFIED INDUSTRIAL AREAS ONE BEING SIDC B HIMTAL. THE STATE ALLOTTED DIFFERENT KHASRA NOS. TO DIFFERENT ASSESSEES, ONE O F WHICH IS F-14 I.E. THE UNDERTAKING OF THE ASSESSEE. IT WAS NOT IN DISPUTE THAT THE ASSESSEE IS MANUFACTURING ANY ARTICLE OR THING WHICH IS MENTION ED IN THIRTEENTH SCHEDULE. IN VIEW OF ABOVE, IT WAS SUBMITTED THAT SINCE THE U NDERTAKING OF THE ASSESSEE IS SITUATED IN THE NOTIFIED AREA AND IS NOT ENGAGED IN THE MANUFACTURING OF ANY ARTICLE OR THING WHICH IS MENTIONED IN THIRTEENTH S CHEDULE, THE ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S 80-IC(2)(A). 13. WITHOUT PREJUDICE TO ABOVE, IT WAS FURTHER SUBM ITTED THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEES UNDERTAKING IS SITUATED IN UTTARANCHAL AND IT COMMENCED ITS PRODUCTION WITHIN THE PERIOD AS SPECIFIED. FURTHER, THE ASSESSEE IS MANUFACTURING TV, DVD, LCD WHICH FALLS UNDER ENTRY 13 OF FOURTEENTH SCHEDULE I.E., INFORMATION AND CO MMUNICATION TECHNOLOGY INDUSTRY, COMPUTER HARDWARE, CALL CENTERS'. THUS, T HE ASSESSEE IS ALSO, ALTERNATIVELY, ELIGIBLE TO DEDUCTION U/S 80-IC(2)(B ). IT WAS SUBMITTED THAT THE LD. AO ERRED IN INFERRING THAT THE PRODUCTS IN WHIC H THE ASSESSEE IS DEALING DOES NOT FALL UNDER ENTRY 13 OF FOURTEENTH SCHEDULE I.E., INFORMATION AND COMMUNICATION TECHNOLOGY INDUSTRY, COMPUTER HARDWAR E, CALL CENTERS'. DURING THE APPELLATE PROCEEDINGS, THE ELIGIBILITY O F THE ASSESSEE UNDER 80- IC(2)(B) WAS EXPLAINED BEFORE THE LD CIT(A). THE LD . CIT(A) HAS NOT DISPUTED THE SAME. HOWEVER, THE APPEAL WAS DISMISSED BY LD. CIT(A) HOLDING THE ASSESSEE NOT ELIGIBLE U/S 80-IC(2)(A). IT IS PERTIN ENT TO NOTE THAT INFORMATION AND COMMUNICATION TECHNOLOGY IS AN UMBRELLA TERM TH AT INCLUDES ANY COMMUNICATION DEVICE, ENCOMPASSING RADIO, TELEVISIO N, CELL PHONES, COMPUTER AND NETWORK HARDWARE, SATELLITE SYSTEMS. FURTHER, T HE INFORMATION TECHNOLOGY ACT, 2000 DEFINES COMMUNICATION DEVICES AS UNDER:- ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 10 SECTION 2(HA)-COMMUNICATION DEVICE: MEANS CELL PH ONES, PERSONAL DIGITAL ASSISTANCE OR COMBINATION OF BOTH OR ANY OT HER DEVICE USED TO COMMUNICATE, SEND OR TRANSMIT ANY TEXT, VIDEO, AUDI O OR IMAGE. 14. IT WAS SUBMITTED THAT TELEVISION IS A MODE OF M ASS COMMUNICATION AND IS USED TO TRANSMIT ANY TEXT, VIDEO, AUDIO OR IMAGE . THEREFORE, THE SAME DULY FORMS A PART OF THE INFORMATION AND COMMUNICATION I NDUSTRY. IN VIEW OF ABOVE, IT WAS SUBMITTED THAT SINCE THE UNDERTAKING OF THE ASSESSEE IS SITUATED UTTARANCHAL AND IS ENGAGED IN THE MANUFACTURING OF ANY ARTICLE OR THING WHICH IS MENTIONED IN FOURTEENTH SCHEDULE, THE ASSESSEE I S ELIGIBLE FOR CLAIMING DEDUCTION U/S 80-IC(2)(B) AND THE AO MAY BE DIRECTE D TO ALLOW THE SAME. 15. PER CONTRA, THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD CIT(A) WHICH READ AS UNDER: 2.3 I HAVE PERUSED THE FACTS OF THE CASE, THE AS SESSMENT ORDER AND THE SUBMISSION OF THE APPELLANT. ASSESSEE IS PROPRI ETOR OF M/S SARLA INDUSTRIES APPEARING AT F-14, SIDC, INDUSTRIAL AREA , BHIMTAL AND HAD CLAIMED DEDUCTION UNDER SECTION 80IC OF THE ACT ON PROFITS EARNED FROM SUCH UNIT. THIS UNIT WAS ENGAGED IN MANUFACTURING O F LED TVS ETC. AS PER ASSESSING OFFICER, THE ITEMS MANUFACTURED BY AS SESSEE ARE NOT SPECIFIED IN 14 TH SCHEDULE OF I.T. ACT, OF WHICH PART C PERTAINS TO HIMACHAL & UTTARANCHAL. THE AUDITOR IN AUDIT REPORT MENTIONED THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER THE SAID CLAUSE OF SCHEDULE 14. DUR ING THE APPELLATE PROCEEDINGS, ASSESSEE FILED MODIFIED AUDIT REPORT A ND CLAIMED THAT IT CLAIMED DEDUCTION UNDER SECTION 80IC(2)(A)(II) AND 80IC(2). ASSESSEE GAVE COPY OF SCHEDULE 13 OF THE I.T. ACT ALSO. ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 11 SECTION 80IC(2)(A)(II) READS AS UNDER:- (II) ON THE 7 TH DAY OF JANUARY, 2003 AND ENDING BEFORE THE 1 ST DAY OF APRIL, 2012, IN ANY EXPORT PROCEEDING ZONE OR INTE GRATED INFRA- STRUCTURE DEVELOPMENT CENTRE OR INDUSTRIAL GROWTH C ENTRE OR INDUSTRIAL ESTATE OR INDUSTRIAL PARK OR SOFTWARE TECHNOLOGY PA RK OR INDUSTRIAL AREA OR THEME PARK, AS NOTIFIED BY THE CENTRAL GOVERNMEN T IN THIS REGARD, IN THE STATE OF HIMACHAL PRADESH OR THE STATE OF UTTAR ANCHAL; OR CLAUSE 80(I) OF 80IC DEFINES INDUSTRIAL AREA AS U NDER:- (I) INDUSTRIAL AREA MEANS SUCH AREAS, WHICH THE BOARD, MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, SPECIFY IN AC CORDANCE WITH THE SCHEME FRAMED AND NOTIFIED BY THE CENTRAL GOVERNMEN T; ASSESSEES CLAIM THAT ITS UNIT IS SITUATED IN NOTIF IED INDUSTRIAL AREA IN UTTARANCHAL AND THUS IS ELIGIBLE FOR DEDUCTION UNDE R SECTION 80IC. ON PERUSAL OF ALL FACTS I FIND THAT THE UNIT OF THE AS SESSEE IS SITUATED IN THE INDUSTRIAL AREA DEVELOPED BY UPSIDC. AS PER CENTRAL EXERCISE NOTIFICATION NO. 50/2003, THE SAID UNIT IS ALSO EL IGIBLE FOR EXEMPTION OR A PARTICULAR PERIOD FROM EXCISE DUTY. BUT THERE IS NO NOTIFICATION ON RECORD ISSUED BY CBDT NOTIFYING SUCH INDUSTRIAL AREA WHERE AS UNIT IS SITUATED MAKING IT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IC . THEREFORE CLAIM OF ASSESSEE CANNOT BE ALLOWED. THUS , THE DISALLOWANCE MADE BY ASSESSING OFFICER IS UPHELD, THIS GROUND OF APPEAL IS DISMISSED. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE UNDERTAKING I N RESPECT OF WHICH DEDUCTION HAS BEEN CLAIMED U/S 80IC IS SITUATED AT KHASRA NOS. 687, 689, F- 14, SIDC INDUSTRIAL AREA, BHIMTAL, NAINITAL, UTTARA NCHAL WHICH FALLS IN THE ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 12 SPECIFIED INDUSTRIAL AREA AS PER NOTIFICATION NO. 1 77/2004 DATED 28-06-2004 ISSUED BY THE CBDT IN ACCORDANCE WITH THE SCHEME FR AMED AND NOTIFIED BY THE CENTRAL GOVERNMENT FOR THE STATE OF UTTARANCHAL. A PPARENTLY, THE SAID NOTIFICATION WAS NOT BROUGHT TO THE NOTICE OF LD CI T(A) AND IN ABSENCE OF THE SAME, THE LD CIT(A) HAS DENIED THE DEDUCTION UNDER SECTION 80IC(2)(A)(II) OF THE ACT. THERE IS NO DISPUTE THAT THE UNDERTAKING SATISFIES THE OTHER CONDITIONS SPECIFIED THEREIN. IT IS ENGAGED IN THE ASSEMBLY AND MANUFACTURING OF LED TELEVISIONS AND BLASTER OF CFL BULBS AND IS THUS NOT ENGAGED IN MANUFACTURING OR PRODUCING ANY ARTICLE/ THING AS SP ECIFIED IN THIRTEENTH SCHEDULE. AS PER THE ASSESSMENT ORDER FOR A.Y 2013 -14 PASSED U/S 143(3) OF THE ACT DATED 27.03.2016, THE ASSESSING OFFICER HAS RECORDED A FINDING THAT FINANCIAL YEAR 2012-13 IS THE THIRD YEAR AFTER COMM ENCEMENT OF BUSINESS AND IS ELIGIBLE FOR DEDUCTION U/S 80IC OF THE ACT. THU S, FINANCIAL 2010-11 WOULD BE THE FIRST YEAR OF COMMENCEMENT OF BUSINESS AND THE UNDERTAKING HAD BEGUN MANUFACTURING BEFORE 01.04.2012 AND THUS, SATISFIED ALL THE CONDITIONS. APPARENTLY, REVISED AUDIT REPORT IN FORM 10CCB HAS BEEN FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH WAS NOT CONS IDERED BY THE AO ON ACCOUNT OF A MISTAKE ON THE PART OF THE AUDITOR WHE RE HE HAS WRONGLY MENTIONED THE DATE OF ISSUE OF SUCH REPORT AS IN TH E ORIGINAL AUDIT REPORT, HOWEVER, THERE IS NO DISPUTE THAT THE ASSESSEE SUBS TANTIALLY COMPLIES WITH ALL THE CONDITIONS AS PRESCRIBED FOR CLAIM OF DEDUCTION U/S 80IC OF THE ACT AND DURING THE APPELLATE PROCEEDINGS, THE LD CIT(A) HAS ACCEPTED THE REVISED AUDIT REPORT WHICH IS NOT DISPUTED BY THE REVENUE. THE O NLY DISPUTE WHICH REMAINS BEFORE THE LD CIT(A) WAS THAT THERE WAS NO CBDT NOT IFICATION NOTIFYING THE INDUSTRIAL AREA AS PER THE SCHEME FRAMED BY THE CEN TRAL GOVERNMENT WHICH THE ASSESSEE HAS NOW FILED AND THE SAME HAS BEEN EX AMINED. IN LIGHT OF THE AFORESAID DISCUSSION, WE SET-ASIDE THE ORDER OF THE LOWER AUTHORITIES AND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80 IC OF THE ACT. THE MATTER IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE AND A GAINST THE REVENUE. ITA NO. 330/JP/2019 SHRI KARAN RAWAT VS. ITO 13 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 28/04/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/04/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI KARAN RAWAT, NAINITAL. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(3), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 330/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR