JCIT (OSD) 8(1)(1), Mumbai V. SHRI SAJJAN INDIA LTD., Mumbai

ITA 3535/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3633 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 23-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Tax effect
• Section: 143(3); 142(1); 14A; 250; 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 3535/MUM/2019 (A.Y: 2009-10) JCIT (OSD) 8(1)(1) 6 TH FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI 400020. VS. SAJJAN INDIA LTD., 3,2 OORANWAL MANSION, DR. B.A, ROAD, PAREL, MUMBAI - 400013 PAN/GIR NO. : AAACS6498M APPELLANT .. RESPONDENT APPELLANT BY : SHRI T.S. KHALSA, SR. DR RESPONDENT BY : SHRI SATISH, AR DATE OF HEARING 10 .0 5 .2021 DATE OF PRONOUNCEMENT 18 .0 5 .2021 / O R D E R PER PAVAN KUMAR GADALE, JM: THE APPEAL IS FILED BY THE REVENUE AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) -14 MUM BAI, PASSED U/S. 143(3) R.W.S. 254 AND 250 OF THE INCOME TAX ACT, 1961. AT THE TIME OF HEARING, THE LD.AR MENTIONED THAT TH E GROUNDS OF APPEAL RAISED BY THE REVENUE DO NOT EMAN ATE FROM THE ASSESSMENT ORDER NOR APPELLATE ORDER AND T HE APPEAL FILED BY THE REVENUE IS COVERED BY THE LOW T AX EFFECT CIRCULAR.THE LD.DR ACCEPTS THESE FACTS AND ITA NO. 3535/MUM/2019 SHRI SAJJAN IND LTD, MUMBAI - 2 - SUBMITTED THAT THIS IS A SECOND ROUND OF LITIGATION BEFORE THE HONBLE TRIBUNAL AND THE APPEAL CAN BE DISPOSED OFF ON THE MERITS OF THE CASE. 2. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF DYES & DRY INTERMEDIATES AND OTHER CHEMICALS .THE ASSESSE HAS FILED THE RETURN OF INCO ME DISCLOSING A TOTAL INCOME OF RS.23,60,32,645/-.WHER EAS, THE A.O HAS MADE DISALLOWANCE U/S 14A OF THE ACT OF RS. 57,27,607/-AND DISALLOWANCE OF CLAIM U/S 80IA OF T HE ACT OF RS.1,17,21,155/-AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT WITH ASSESSED TOTA L INCOME OF RS. 25,34,81,407/-ON 28/12/2011. 2.1 AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A), WHEREAS, THE CIT(A) CONSIDE RING THE GROUNDS OF APPEAL, FINDINGS OF THE A.O HAS CONF IRMED THE DISALLOWANCE U/S.14A & 80IA OF THE ACT AND GRAN TED PARTIAL RELIEF IN THE OTHER ISSUES AND PARTLY ALLO WED THE ASSESSEE APPEAL. 2.2 AGGRIEVED BY THE ORDER OF THE CIT(A,) THE ASSES SEE COMPANY HAS FILED AN APPEAL WITH THE TRIBUNAL. WHER EAS THE HONBLE TRIBUNAL VIDE ORDER DATED 23.04.2014 IN ITA NOS. 449 & 7532/MUM/2011& 5856/MUM/2012 FOR THE ITA NO. 3535/MUM/2019 SHRI SAJJAN IND LTD, MUMBAI - 3 - A.Y 2007-08,2008-09 & 2009-10 HAS RESTORED THE DISPUTED ISSUES TO THE FILE OF THE A.O. SUBSEQUENT TO THE DIRECTIONS OF THE HONBLE ITAT THE A.O HAS ISSUED N OTICE U/S 142(1) OF THE ACT ON THE ASSESSEE. IN COMPLIAN CE, THE LD.AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AN D FILED THE DETAILS AND THE CASE WAS DISCUSSED. WHERE AS, THE A.O. HAS CONSIDERED THE FACTS THAT THE ASSESSEE HAS DISALLOWED SUO-MOTO U/S 14A R.W.S 8D(II) RS. 50,05, 020/- AND HAS GRANTED RELIEF AND DETERMINED TOTAL INCOME OF RS. 24,77,53,800/- AND PASSED ORDER U/S 143(3) R.W.S 25 4 OF THE ACT DATED 05.01.2017. 2.3 AGGRIEVED BY THE ORDER OF THE A.O, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). THE CIT(A) HAS CON SIDERED THE GROUNDS OF APPEAL, SUBMISSIONS OF THE ASSESSEE AND HAS DEALT AT PARA 3 & 4.1 OF THE ORDER AND ALLOWE D THE CLAIM U/SE 80IA OF THE ACT. BUT IN RESPECT OF DISAL LOWANCE U/S 14A R.W.R 8D(2)(III), SINCE THE ASSESSEE HAS SU O-MOTO MADE DISALLOWANCE AND THE A.O HAS ALREADY GRANTED THE RELIEF TO THE ASSESSEE AS PER THE DIRECTIONS OF THE HONBLE ITAT, THIS GROUND OF APPEAL WAS DISMISSED. THE CIT( A) HAS GRANTED RELIEF IN THE OTHER GROUNDS OF APPEAL A ND PARTLY ALLOWED THE ASSESSEES APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A) THE REVENUE HAS FILED AN APP EAL WITH THE HONBLE TRIBUNAL. ITA NO. 3535/MUM/2019 SHRI SAJJAN IND LTD, MUMBAI - 4 - 3. AT THE TIME OF HEARING THE LD. DR SUBMITTED THAT THE CIT(A) HAS ERRED IN GRANTING THE RELIEF OF CLAIM U /S 80IA OF THE ACT RELYING ON ITAT ORDER IN ASSESSEES OWN CASE. BUT THE REVENUE HAS FILED AN APPEAL BEFORE THE HON BLE HIGH COURT AGAINST THE ITAT ORDER AND THE SAME IS PENDING. THEREFORE, THE CIT(A) ORDER BE SET ASID E AND A.O. ORDER IS RESTORED. 4.CONTRA, THE LD.AR SUPPORTED THE ORDER OF THE LD.C IT(A) AND FURTHER SUBMITTED THAT THE GROUNDS OF APPEAL RA ISED BY THE REVENUE DOES NOT EMANATE FROM ASSESSMENT ORD ER AND PRAYED FOR DISMISSAL OF REVENUE APPEAL. 5. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA-FACIE THE LD.DR CONTENTI ONS THAT THE CIT(A) HAS ERRED IN GRANTING THE RELIEF IN RESPECT OF DEDUCTION U/S 80IA OF THE ACT. WE FIND THE LD.C IT(A) IN APPELLATE ORDER AT PAGE 5 PARA 4.1 HAS OBSERVED AS UNDER: 4.1 SO FAR AS GROUND OF APPEAL NO.3 IS CONCERNED, IT IS SEEN FROM THE SUBMISSIONS MADE BY THE APPELLANT THAT THE GROUND OF APPEAL RAISED BY THE APPELLANT REGARDING ALLOWAN CE OF DEDUCTION U/S 80IA ON CAPTIVE POWER PLANT WAS DECID ED BY THE HONBLE TRIBUNAL AT PARA 41 OF ITS COMMON ORDER IN ITA NO. 449 & 7532/MUM/2011 AND ITA NO. 5856/MUM/2012 DATED 23.04.2014. THE AO HAS FAILED TO TAKE COGNIZANCE O F DIRECTIONS ISSUED BY THE HONBLE TRIBUNAL. IN VIEW OF THE DIRECTIONS OF THE HONBLE TRIBUNAL, THE AO IS DIREC TED TO ALLOW DEDUCTION U/S 80IA OF THE IT ACT IN RESPECT OF CAPT IVE POWER ITA NO. 3535/MUM/2019 SHRI SAJJAN IND LTD, MUMBAI - 5 - PLANT OWNED BY THE APPELLANT. ACCORDINGLY, THIS GR OUND OF APPEAL IS ALLOWED. 6. WE FIND THELD.CIT(A) HAS RELIED ON THE HONBLE T RIBUNAL ORDER AND GRANTED RELIEF. THE LD.DR COULD NOT CONTR OVERT THE FINDINGS OF CIT(A) WITH ANY COGENT EVIDENCE OR INFORMATION. FURTHER, THE TAX EFFECT IN THE APPEAL IS BELOW THE MONETARY LIMIT OF RS. 50 LAKHS AS PER CBDT CIRC ULAR NO. 17/2019 DATED 8-8-2019 AND THE LD.DR ACCEPTS TH ESE FACTS. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND UPHELD THE SAME AND DISM ISS THE GROUNDS OF APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.05.2021 SD/- SD/- ( S RIFAUR RAHMAN ) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 18.05.2021 KRK, PS ITA NO. 3535/MUM/2019 SHRI SAJJAN IND LTD, MUMBAI - 6 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) 4. ( ) / CONCERNED CIT 5. !!' , $ % , / DR, ITAT, MUMBAI 6. () * + / GUARD FILE. / BY ORDER, ! //TRUE COPY// 1. ( ASST. REGISTRAR) ITAT, MUMBA I