ACIT 15(2), MUMBAI V. HEM INDUSTRIES, MUMBAI

ITA 3590/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4041 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C P PATNAIK

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H B ENCH, MUMBAI . . , !'#$ , % &' BEFORE SHRI H.L. KARW A, PRESIDENT AND SHRI N.K. BILLAIYA, AM ./ I.T.A. NO. 3590/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR :2009-10 THE ACIT 15(3), MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI-400 007 M/S. HEM INDUSTRIES, 32-A, VIDYA VILLA COMPOUND, OLD NAGARDAS ROAD, ANDHERI (E), MUMBAI-400 069 ') % ./ *+ ./PAN/GIR NO. : AADFMH 4206N ( ), /APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY : ` SHRI K.C.P. PATNAIK -.), 0 / /RESPONDENT BY : SHRI YAGNESH DESAI SHRI HEMANT BAHEDIA 0 12% / DATE OF HEARING :24.07.2013 34( 0 12% / DATE OF PRONOUNCEMENT :24.07.2013 &5 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-26, MUMBAI DT. 27.3.2012 PERTAINING TO ASSES SMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 80IB(4) OF RS. ITA NO.3590/M/2012 2 2,20,77,921/- BY HEAVILY RELYING UPON THE POINT THA T IN EARLIER ASSESSMENT YEARS THE DEDUCTION WAS ALLOWED TO THE ASSESSEE AND NOT APPRECIATING THE FRESH FACTS BROUGHT ON RECORD BY THE AO WHICH LED TO DISALLOWANCE OF DEDUCTION FOR A.Y. 2009-10. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCT ION BY SIMPLY RELYING UPON CERTAIN DECISIONS, WHICH ARE DISTINGUISHABLE FROM THE PRESENT CASE AND NOT APPRECIATING THE CRUCIAL FACTS RELATING TO ELECTRIC ITY CONNECTION, POWER CONSUMPTION, NUMBER OF EMPLOYEES AND CHANGING STAND OF THE ASSESSEE WITH RESPECT TO PLACE OF BUSINESS ETC, ALL OF WHICH GO TO SHOW THAT THE MANUFACTURING ACTIVITY OF THE ASSESSEE NEVER BECAME OPERATIONAL BEFORE 31.3.2004 AND THE ASSESSEE FAILE D TO SATISFY CONDITIONS U/S. 80IB(4). . 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE ISSUES RAISED BY THE REVENUE IN THE PRESENT APPEAL HAVE ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSMENT YEAR 2008-09. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCE DED. 5. WE HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER A ND THE ORDER OF THE LD. CIT(A). WE FIND THAT THE CLAIM OF THE ASSE SSEE FOR DEDUCTION U/S. 80IB(4) HAS BEEN DENIED BY THE AO SOLELY ON THE GR OUND THAT THE UNIT ON WHICH THE ASSESSEE HAS CLAIMED THE SAID DEDUCTION BECAME FUNCTIONAL ONLY FROM 17.1.2005 WHICH IS BEYOND THE DEADLINE OF 31.3.2004 AS ENVISAGED IN THE ACT. HOWEVER, ON IDENTICAL FACTS, THE TRIBUNAL IN ITA NO. 4119/MUM/2011 IN ASSESSEES OWN CASE FOR A.Y. 2 008-09, WHILE CONSIDERING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 80IB(4), AT PARA-7 OF ITS ORDER HAS THUS OBSERVED AS UNDER: ITA NO.3590/M/2012 3 ALL THESE FACTS CUMULATIVELY AND IN ISOLATION GO T O PROVE BEYOND ANY DOUBT THAT THE ASSESSEE STARTED MANUFACT URING ACTIVITY BEFORE 31.3.2004. IN OUR CONSIDERED OPINI ON, THE LD. CIT(A) WAS JUSTIFIED IN NOT AFFIRMING THE ASSESSMEN T ORDER ON THIS POINT. WE, THEREFORE, UPHOLD THE GRANTING OF DEDUCTION U/S. 80IB(4). 6. FACTS AND CIRCUMSTANCES BEING IDENTICAL, RESPECT FULLY FOLLOWING THE DECISION OF THE TRIBUNAL (SUPRA), WE CONFIRM THE FI NDINGS OF THE LD. CIT(A). 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.07.2013 &5 0 4( % 6 7&8 24.7.2013 4 0 9 SD/- SD/- (H.L. KARWA ) (N.K . BILLAIYA ) /PRESIDENT % &' / ACCOUNTANT MEMBER MUMBAI; 7& DATED 24.7.2013 . . ./ RJ , SR. PS &5 &5 &5 &5 0 00 0 -1! -1! -1! -1! :!(1 :!(1 :!(1 :!(1 / COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. ; ( ) / THE CIT(A)- 4. ; / CIT 5. !<9 -1 , , / DR, ITAT, MUMBAI 6. 9= > / GUARD FILE. &5 &5 &5 &5 / BY ORDER, .!1 -1 //TRUE COPY// ? ?? ? / @ @ @ @ * * * * (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI