The ACIT, Circle-2, JAMNAGAR V. Tacon Infrastructure Pvt. Ltd., PORBANDAR

ITA 353/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0036 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: PRASHANT MAHARSHI
• Keywords: Question of law

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI A. K.GARODIA, AM ITA NO. 353 AND 354/RJT/2012. / ASSESSMENT YEARS 2008-09 AND 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, JAMNAGAR. / APPELLANT) VS. TACON INFRASTRUCTURE PVT.LTD. TACON COMPLEX, 3-WADI PLOT, M.G.ROAD, NR.KAMLA BAG, PORBANDAR PAN: AABCT4416D / RESPONDENT / REVENUE BY SHRI AVINASH KUMAR ' / ASSESSEE BY SHRI PRASHANT MAHARSHI & / DATE OF HEARING 3.8.2012 & / DATE OF PRONOUNCEMENT 30.8.2012 / / / / ORDER PER T. K. SHARMA, JM THESE APPEALS BY THE REVENUE ARE IS AGAINST THE ORDER DATED 26.3.2012L AND 27.3.2012 OF CIT(A), JAMNAGAR FO R THE ASSESSMENT YEARS 2008-09 AND 2009-10 RESPECTIVELY. SINCE THE ISSUE INVOLVES IN THESE APPEALS ARE COMMON AND HENCE THEY WERE HEARD TOGE THER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. 2. IDENTICAL GROUND RAISED IN BOTH THE APPEALS IS REGA RDING ALLOWANCE OF DEDUCTION U/S 80IA(4) OF THE INCOME TAX ACT, 1961. ITA NO. 353 AND 354/RJT/2012 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CON STRUCTION COMPANY ENGAGED IN INFRASTRUCTURE PROJECTS OF GOVERNM ENT /SEMI GOVERNMENT BODIES. IT FILED E-RETURN ON 30.9.2008 DECLARING NIL INCOME. IN THE SAID RETURN THE ASSESSEE HAS CLAIMED DEDUCTION U/ S 80-IA OF THE INCOME TAX ACT, 1961, AFTER PROCESSING THE CASE U/S 143(1) , IT WAS SELECTED FOR SCRUTINY AND ACCORDINGLY STATUTORY NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER WAS OF THE VIE W THAT THE CONDITIONS REQUIRED FOR ALLOWING DEDUCTION U/S 80IA(4) OF THE ACT AND AS PER THE EXPLANATION GIVEN IN CBDT CIRCULAR NO.717 D ATED 4.8.1995, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80-IA AS CLAIMED B Y IT AND DISALLOWED THE SAME. THE ASSESSEE CARRIED THE MATTER BEFO RE THE CIT(A), WHO VIDE HIS IMPUGNED ORDERS DATED 26.3.2012 AND 27.3 .2012 OBSERVED AND HELD THAT THE APPELLANT IS ELIGIBLE FOR DEDUCTIO N U/S 80IA AND DIRECTED THE AO TO DELETE THE ADDITION. 4. BEING AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 5. SHRI AVINASH KUMAR, THE LD. DR APPEARED BEFORE U S AND RELYING ON THE ORDER OF THE AO. 6. ON THE OTHER HAND, THE LD. AR FOR THE ASSESSEE SUBM ITTED BEFORE US THAT THE ASSESSEE FILED AN APPLICATION U/S 158A OF THE ACT ON THE GROUND THAT AN IDENTICAL ISSUE ARISES FOR CONSIDERATION FOR THE A SSESSMENT YEARS 2001-02 TO 2005-06 WHICH IS PENDING BEFORE THE GUJARA T HIGH COURT FOR ADJUDICATION. THE GUJARAT HIGH COURT ADMITTED THE AP PEALS AND THEY ARE STILL PENDING. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN ORDER TO ITA NO. 353 AND 354/RJT/2012 3 AVOID REPETITION ON THE SAME IDENTICAL ISSUE FOR THE ASSE SSMENT YEARS UNDER CONSIDERATION THE ASSESSEE HAS FILED AN APPLICATION U/S 158A UNDERTAKING NOT TO FILE ANY APPEAL FOR THE ASSESSMENT Y EARS UNDER CONSIDERATION AND THE ASSESSEE HAS NO OBJECTION TO FOLLOW T HE JUDGMENT OF THE GUJARAT HIGH COURT, WHICH WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. THE COPY OF THE APPL ICATION FILED BY THE ASSESSEE WAS FORWARDED TO THE ASSESSING OFFICER THROUG H THE DR. THE ASSESSING OFFICER, AFTER VERIFYING THE RECORDS, HAS STA TED THAT THE QUESTION OF LAW RAISED BEFORE THE ITAT FOR THE ASSESSMEN T YEARS 2006-07 AND 2007-08 IS IN REGARD TO THE CLAIM OF THE ASSESSEE U/S 80IA(4) WHICH IS IDENTICAL TO THE ISSUE RAISED BEFORE THE GUJARAT HIGH C OURT. ON A QUERY FROM THE BENCH, THE LD.DR SUBMITTED THAT THE FACTS WHICH ARISE FOR CONSIDERATION DURING THE ASSESSMENT YEARS UNDER CONSIDERATI ON AND THE ISSUE WHICH WAS DECIDED EARLIER BY THE TRIBUNAL ARE SIMIL AR AND IDENTICAL AND THEREFORE, WHATEVER JUDGMENT THE HIGH COURT DEL IVER, WOULD BE EQUALLY APPLICABLE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION AL SO. THEREFORE, THE LD.DR SUBMITTED THAT HE HAS NO OBJECTION TO REMIT BACK THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME O N THE BASIS OF THE JUDGMENT OF THE GUJARAT HIGH COURT WHICH WOULD BE DE LIVERED FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. THE LD. AR ALSO R ELIED ON THE ORDER OF THE RAJKOT BENCH OF THE TRIBUNAL IN ASSESSEES O WN CASE IN TACON INFRASTRUCTURE PVT LTD V/S ADDL.CIT AND VIZ-A- VIZ IN I.T.A.NO.390/RJT/2009, I.T.A. NO.839/RJT/2009 (AY 2006-07) AND I.T.A NO.1050 /RJT/2010 (AY 2007-08) DATED 26.8.2011 ITA NO. 353 AND 354/RJT/2012 4 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIALS AVAILABLE BEFORE US AS WELL AS WE HAVE GONE THROUGH T HE ORDER OF THE RAJKOT BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA ). WE FIND THAT THAT THE FACTS ARISES FOR CONSIDERATION FOR THE ASS ESSMENT YEARS UNDER CONSIDERATION ARE SIMILAR AND IDENTICAL TO THAT OF THE FACTS FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06 AND THE MATTER IS PE NDING BEFORE THE HIGH COURT, IN OUR OPINION, IN ORDER TO AVOID R EPETITION OF APPEALS, THE MATTER NEEDS TO BE DECIDED ON THE BASIS OF THE JUDGMENT OF THE GUJARAT HIGH COURT WHICH WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. WE MAY MAKE IT CLEAR THAT TH E ASSESSEE SHALL NOT BE ENTITLED TO FILE ANY APPEAL SINCE THE MATTER I S REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER ON THE UNDERTAKING GIVEN B Y THE ASSESSEE TO FOLLOW THE JUDGMENT OF THE GUJARAT HIGH COURT FOR T HE ASSESSMENT YEARS 2001-02 TO 2005-06. WE ALSO FIND THAT THE SIMILAR ISSUE HAS COME UP BEFORE THIS BENCH IN ASSESSEES OWN CASE FOR THE ASSESSMENT Y EARS 2006-07 AND 2007-08 IN WHICH THE ISSUE WAS RESTORED BACK TO THE FILE OF THE AO TO FOLLOW THE DECISION OF THE HONBLE GUJARAT HIGH COURT FOR THE ASSESSMENTS YEARS 2001-02 TO 2005-06. 8. IN VIEW OF THE ABOVE, WE FIND THAT THE ISSUE RAI SED IN THE PRESENT APPEALS STANDS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. RE SPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL, WE REM IT BACK REMITT BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SH ALL DECIDE THE ISSUE ON THE BASIS OF THE JUDGMENT OF THE GUJARAT HIGH COURT WHICH WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001- 02 TO 2005-06 IN THE ASSESSEES OWN CASE. ITA NO. 353 AND 354/RJT/2012 5 9. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AR E ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( A. K.GARODIA) ( T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER +/ ORDER DATE 30.08.2012. /RAJKOT SRL - - - - .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-, 2. / RESPONDENT- 3. 4 / CONCERNED CIT. 4. 4- / CIT (A). 5. - , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.