ACIT, BARMER V. M/s. Malani Impex Inc., BARMER

ITA 385/JODH/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8002 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KONKANI
• Keywords: Gross profit estimation
• Section: 80IB; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 385/JU/2011 ASSESSMENT YEAR : 2008-09 THE ACIT, CIRCLE, VS. M/S MALANI IMPEX INC. BARMER BARMER PAN NO. AAFFM6980L & C.O. NO.02/JU/2012 (IN ITA NO. 385/JU/2011) ASSESSMENT YEAR : 2008-09 M/S MALANI IMPEX INC. VS THE ACIT, CIRCLE BARMER BARMER (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KONKANI RESPONDENT BY : SHRI RAJENDRA JAIN DATE OF HEARING : 06.12.2012 DATE OF PRONOUNCEMENT : 19.12.2012 ORDER PER N.K.SAINI, A.M. THE APPEAL BY THE DEPARTMENT AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 25.8.2011 OF C IT(A), JODHPUR.. 2. THE GROUNDS RAISED IN THE DEPARTMENTAL APPEAL R EAD AS UNDER:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT (A) HAS ERRED BY ALLOWING RELIEF OF RS. 16,18,633/- TO THE ASSESSEE OUT OF TOTAL ADDITION M ADE OF 2 RS. 26,50,594/- BY DIRECTING THE ASSESSING OFFICER TO APPLY G.P. RATE OF 17.30% AS AGAINST G.P. RATE OF 18.01% TAKEN BY AO BY INVOKING PROVISIONS OF SECTIO N 145(3) OF THE INCOME-TAX ACT, 1961? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD CIT(A) HAS PERVERSELY ALLOWED THE DEDUCTION U/S 80IB OF THE I.T. ACT 1961 FOR RS. 2,48,616/-, WITHOUT APPRECIATING THE DETAILED FACTS NARRATED BY THE AO IN THIS ASSESSMENT ORDER? 3. IT IS PRAYED THAT ORDER OF THE AO MAY BE RESTOR ED AND ORDER OF THE CIT(A) MAY BE SET-ASIDE. 3. WHILE THE GROUNDS RAISED IN THE ASSESSEES CROSS OBJECTION ARE AS FOLLOW:- 1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ASSESSEE FIRM IS ELIGIBLE FOR DEDUCTION U/S 80I B OF THE ACT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD CIT(A) ERRED IN UPHOLDING THE APPLICABILITY OF PROVISIONS OF SECTION 145 OF THE ACT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD CIT(A) ERRED IN SUSTAINING TRADING ADDITION OF RS. 10,31,961/- BY APPLYING GP RATE 17.30% ON TOTAL TURNOVER. 4. THAT THE PETITIONER MAY KINDLY BE PERMITTED TO RAIS E ANY ADDITIONAL OR ALTERNATIVE GROUND AT OR BEFORE HEARI NG. 3 5. THE PETITIONER PRAYS FOR JUSTICE & RELIEF. 4. FROM THE ABOVE GROUNDS IT IS GATHERED THAT THE MAIN GRIEVANC E OF THE DEPARTMENT AND THE ASSESSEE RELATES TO THE ADDITION SUSTAINED / DELETED BY THE LD CIT(A) WHICH WAS MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF GP RATE. 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 9.9.2008 DECLARING AN INCOME OF RS. 1,69, 37,910/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 [H EREINAFTER REFERRED TO AS 'THE ACT' IN SHORT] ON 3.6.2009. LATER ON, THE CA SE WAS SELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, THE ASSESSING OFFICER NOTICED THAT THE COMPARATIVE GP RATE FOR TH E LAST THREE YEARS OF THE ASSESSEE WAS AS FOLLOWS:- AY SALES GROSS PROFIT GP RATE NET PROFIT N.P. RATE 2006-07 260095170.33 44632713.60 17.16% 27142391.63 10.44% 2007-08 255302457.00 43957676.07 17.21% 22116022.39 8.66% 2008-09 227976506.64 38407975.07 16.84% 16396068.80 7.19% 6. FROM THE ABOVE CHART, THE ASSESSING OFFICER NOTI CED THAT THE ASSESSEE DECLARED GP OF 16.84% FOR THE YEAR UNDER CONSIDERA TION WHICH WAS LOWER THAN THE IMMEDIATE PRECEDING YEAR WHEREIN THE GP R ATE WAS 17.21% AND THE SALE OF THE ASSESSEE FIRM ALSO DECREASED IN COMPARI SON TO THE PRECEDING YEAR. HE, THEREFORE, ASKED THE ASSESSEE TO FURNISH THE RE ASONS FOR LOW GP RATE. IN RESPONSE, THE ASSESSEE SUBMITTED AS UNDER:- 4 'OUR GROSS PROFIT IS RS. 38.41 LACS ON A SALES OF R S. 22.79 CRORES FOR EMBROIDERED TEXTILE, MADE UPS ITEMS. IT COMES A G.P . RATE OF APPROX. 16.84 AS COMPARED TO 17.21 DECLARED IN THE PREVIOUS YEAR. TH US THERE IS A SHORT FALL OF APPROX 0.37% IN THE CURRENT YEAR. THE EXPLANATION F OR THE SAME IS AS UNDER:- 1. IN OUR A.Y. 2006-07 THE HON'BLE CIT(A), JODHPUR HAS GIVEN DIRECTION FOR G.P. RATE OF 17.30% AND IN THE A.Y. 2007-08 THE LEARNED AO APPLIED A G.P. RATE OF. 2. WE GEL EXPORT INCENTIVE IN THE FORM OF DEPB INCOME AND DRAWBACK, THE POSITION OF WHICH IS AS UNDER:- PARTICULARS A.Y. 2007-08 (RS. IN CRORES) A.Y. 2008- 09 (RS. IN CRORES) EXPORT SALE 18.28 16.60 INCENTIVE 0.80 1.15 % OF EXPORT SALES 4.37 6.95 THUS THERE IS AN INCREASE OF APPROX 2.58% IN THE EX PORT INCENTIVES WHICH IS VERY SIGNIFICANT AND IN THE COMPETITIVE MARKET E VERY TIME WE HAVE TO KEEP IN MIND THE INCENTIVE AVAILABLE FOR PRICING TH E GOODS. 3. DURING THE YEAR DUE TO SLOW DOWN IN ECONOMY & INCREASE IN COMPETITION OUR SALES HAS ALSO BEEN REDUCED FROM 25 .53 CRORES TO 22.79 CRORES. FURTHER, THE EXPORT SALES HAVE ALSO REDUCED FROM 18.28 CRORES TO 16.60 CRORES. 4. HOWEVER, THE COST OF RAW MATERIAL AND OTHER DIRE CT EXPENSES CONTINUES TO BE SAME OR HAS INCREASED MARGINALLY DU RING THE YEAR. CONSIDERING THE ABOVE G.P. RATE OF'16.84% IS QUITE JUSTIFIED. 5 7. THE ASSESSING OFFICER DID NOT FIND THE ABOVE REP LY OF THE ASSESSEE AS SATISFACTORY BY OBSERVING THAT THE ASSESSEE FAILED TO FURNISH ANY PROPER BASIS / REASONING OR JUSTIFICATION FOR THE FALL IN GP. TH E ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH MONTH WISE QUANTITATIVE AND QUALITATIVE DETAILS OF THE OPENING STOCK/PURCHASES / SALES AND CLOSING STOCK O F RAW MATERIAL AS WELL AS THE FURNISHED GOODS BUT THE ASSESSEE FAILED TO DO S O. THE ASSESSING OFFICER ALSO ASKED THE ASSESSEE TO FURNISH THE CLOSING STOC K INVENTORY AND TO PRODUCE STOCK REGISTER. ACCORDING TO THE ASSESSING OFFICER , THE ASSESSEE HAD NOT MAINTAINED ANY STOCK REGISTER. THE REASONS GIVEN B Y THE ASSESSEE FOR NOT MAINTAINING THE STOCK REGISTER WERE AS FOLLOWS:- WE ARE DEALING IN EMBROIDERED TEXTILES AND APPLIQU E AND PATCHWORK TEXTILES ITEMS AND MADE UPS AND GARMENTS. WE ARE GE TTING EMBROIDERY DONE ON CLOTH AT OUR H.O. AT CHOHTAN. THERE ARE MAN Y TYPES OF QUALITY OF CLOTH I.E. MILL CLOTH, POWER LOOM CLOTH, SHEETIN G CLOTH AND OTHER VARIETY OF CLOTH ON WHICH EMBROIDERY IS DONE. FURTHER THERE ARE TWO TYPES OF EMBROIDERY 1ST BY HA ND AND 2ND BY MACHINE. ALSO THE EMBROIDERY THREAD USED IS OF V ARIOUS SHADES AND QUALITY. FROM THIS EMBROIDERED CLOTH VARIOUS TYPES OF ITEMS AS MENTIONED BELOW ARE MANUFACTURED. 1. BAGS OF VARIOUS SIZES. 2. CUSHION COVER OF VARIOUS SIZES AND DESIGNS. 3 PURSE 4. WALL HANGINGS OF VARIOUS SIZES 5. SOFA COVER 6. BED SHEETS OF VARIOUS SIZES 7. GARMENTS ETC . 6 MFG. OF ABOVE ITEMS AGAIN WE HAVE TO USE A DYED CL OTH ON THE BACK SIDE OF THESE COMES TO SUPPORT THEM AND MAKE T HEM AS COVER LIKE BAGS, CUSHION COVER, PURSE BEDCOVER ETC. DURING THE CUTTING OF EMBROIDERED CLOTH IF SOME PIE CES OF CLOTH LEFT OUT WE AGAIN CONVERT THEM BY STITCHING TOGETHE R INTO PATCH WORK MATERIAL, BY THIS THE PATCHWORK CLOTH BECAME R EADY FOR MFG. OF ALL ABOVE ITEMS E.G. BAGS, CUSHION COVER, P URSE WALL HANGING, BED SHEETS ETC. AGAIN, IF SOME CUTTING REM AINS OF THIS CLOTH ALSO WE PREPARE ABOVE THINGS. FURTHER, IF ANY BUYER SAYS US TO CONVERT SOME BED S HEETS INTO CUSHION COVER OF ITS DESIRE THEN WE HAVE TO CONVERT THEM WITH CUSHION COVER OF VARIOUS DESIGNS AND SIZES. LIKEWISE, WE PREPARE ITEMS OF APPLIQUE WORK AND ALS O OF PRINTED CLOTH THAT ALL ITEMS AGAIN RUNS IN VARIOUS SIZES, Q UALITIES, DESIGNS AND PRINTS. AND ONE ITEMS BECOME RAW MATERIAL FOR ANOTHER ITEMS , IN MANY CASES E.G. IF WE HAVE BOUGHT EMBROIDERED BED SHEETS OF ANY SIZE AND IF A CUSTOMER COMES AND SAYS THAT HE/SHE WANT F OUR OR FIVE CUSHION COVERS OF IT AND IF IT WANT TO CONVERT INTO BAGS, OR WALL HANGINGS THEN WE HAVE TO DO IT. IN ABOVE WORKING CONDITION AND CIRCUMSTANCES IT IS NOT POSSIBLE TO MAINTAIN STOCK REGISTER AND STOCK AT YEAR END AR E PHYSICALLY VERIFIED AND VALUED AT COST OR MARKET VALUE WHICHEV ER IS LESS METHOD BY PARTNERS.' 8. THE ASSESSING OFFICER AFTER CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE, WAS OF THE VIEW THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE SUFFERED THE FOLLOWING DEFECTS:- 7 ASSESSEE WAS NOT MAINTAINING STOCK REGISTER/QUANTIT ATIVE AS WELL AS ANY INVENTORY OF CLOSING STOCK WHICH ARE ES SENTIAL TO EXAMINE THE CORRECTNESS OF THE TRADE RESULTS. ASSES SEE CATEGORICALLY DENIED THAT IT WAS NOT POSSIBLE TO MA INTAIN STOCK REGISTER OR INVENTORY. SOME PURCHASE BILLS WERE DRAWN BY THE ASSESSEE ITSE LF. SOME OF SUCH BILLS WERE CLEARED IN CASH. IN THE ABSENCE OF STOCK REGISTER, IT IS NOT POSSIBLE TO EXAMINE AS TO WHETH ER THESE FORM PART OF SALES OR CLOSING STOCK. THE ASSESSEE CLAIMS THAT TO SOME WORKERS, CLOTH AS WELL AS RAW MATERIAL WAS BEING SUPPLIED BY THE ASSESSEE. HOWEVE R, THE ASSESSEE HAS NO RECORD TO ESTABLISH AS TO HOW MUCH CLOTH WAS SUPPLIED AND OUT OF IT HOW MUCH WAS CONSUMED AND OU T OF IT HOW MUCH WAS CONSUMED FOR WORK GOT DONE BY THE ASSE SSEE. 9. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 145(3) OF THE ACT AND APPLIED GP RATE OF 18.01 % AND ACCORDINGLY, THE GP WAS WORKED OUT AT RS. 4,10,58,569/- INSTEAD OF RS. 3,84,07,975/- O N THE TURN OVER OF RS. 22,79,07,506/- AND ACCORDINGLY ADDITION OF RS. 26,5 0,594/- WAS MADE. 10. THE ASSESSEE CARRIED THE MATTER TO THE LD CIT(A ) AND SUBMITTED THAT ALL THE SALES AND PURCHASES WERE FULLY VOUCHED AND ALL EXPENSES AND OTHER INCOMES WERE DULY VOUCHED WITH THIRD PARTY VOUCHER. IT WAS FURTHER STATED THAT THE ASSESSING OFFICER DID NOT POINT OUT ANY SI NGLE DEFECT WHICH REFLECTED SUPPRESSED INCOME OR INFLATED EXPENSES AN D THAT THE BOOKS OF ACCOUNTS WERE AUDITED IN TERMS OF PROVISIONS OF SEC TION 44AB OF THE ACT. IT WAS CONTENDED THAT THE FALL IN EXPORT SALES WAS DUE TO THE REASON BEYOND THE CONTROL OF THE ASSESSEE. 8 11. THE LD CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE FACTS IN THE CURRENT YEAR WERE SI MILAR TO THOSE IN THE PRECEDING YEAR, THEREFORE, THE ACTION OF THE ASSESS ING OFFICER IN REJECTING THE BOOKS OF ACCOUNT BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE ACT WAS CONFIRMED AS WAS DONE IN THE PRECEDING YEAR. A S REGARDS TO THE APPLICATION OF GP RATE AT 18.01%, THE LD CIT(A) OBS ERVED THAT IN THE ASSESSMENT YEAR 2006-07, THE ASSESSING OFFICER APPL IED THE GP RATE OF 18% INSTEAD OF 17.16% DECLARED BY THE ASSESSEE AND THE CIT(A) VIDE ORDER DATED 24.4.2009 REDUCED THE GP RATE TO 17.30%, WHICH WAS ALSO HELD JUSTIFIABLE FOR THE ASSESSMENT YEAR 2007-08 VIDE ORDER DATED 27 .12.2010. HE, THEREFORE, CONSIDERING THE SIMILARITY OF THE FACTS FOR THE YEA R UNDER CONSIDERATION VIS- -VIS THE EARLIER YEAR, DIRECTED THE ASSESSING OFFI CER TO APPLY THE GP RATE OF 17.30%. NOW, THE DEPARTMENT IS IN APPEAL AGAINST TH E RELIEF ALLOWED TO THE ASSESSEE WHILE THE ASSESSEE HAD FILED THE CROSS OBJ ECTION AGAINST SUSTENANCE OF ADDITION. 12. THE LD COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE FACTS OF THE YEAR UNDER CONSIDERATION WERE DIFFERENT FROM THE FACTS I NVOLVED IN THE EARLIER YEAR WHEREIN THE GP @ 17.30% WAS HELD TO BE REASONA BLE BY ITAT AND THE LD CIT(A). IT WAS FURTHER STATED THAT DURING THE YE AR UNDER CONSIDERATION, THE SALE OF THE ASSESSEE REDUCED FROM RS. 25.53 CRORES TO RS. 22.79 CRORES AND THE EXPORT SALES REDUCED FROM RS. 18.28 CRORES TO R S. 16.60 CRORES WHILE THE COST OF THE RAW MATERIAL AND THE DIRECT EXPENSES HA D NOT DECREASED, 9 THEREFORE, THE MARGINAL DECREASE IN THE GP RATE WAS DUE TO DECLINE IN EXPORT SALES. 13. IN HIS RIVAL SUBMISSIONS, THE LD DR SUPPORTED T HE ORDERS OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSEE D ID NOT MAINTAIN STOCK REGISTER AND THE EXPENSES WERE NOT FULLY VERIFIABLE , THEREFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN APPLYING THE GP RATE OF 18 .01%. 14. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESET CASE, IT IS TRUE THAT THE ASSESSEE WAS NOT MAINTAINING THE STOCK REG ISTER, HOWEVER, IT EXPLAINED THE REASON FOR NON MAINTENANCE OF THE SAM E BY STATING THAT THE ASSESSEE WAS DEALING IN THE NUMEROUS ITEMS, SO IT W AS NOT POSSIBLE TO MAINTAIN STOCK OF EACH AND EVERY ITEM. HOWEVER, TH E STOCK WAS PHYSICALLY VERIFIED AND VALUED BY THE ASSESSEE AND THAT PHYSIC AL VERIFICATION HAS NOT BEEN DOUBTED. IN THE PRESENT CASE, THE ASSESSING O FFICER APPLIED THE GP RATE OF 18.01% WITHOUT ANY BASIS AND IGNORED THIS VITAL FACT THAT IN THE PRECEDING YEARS, I.E. UPTO ASSESSMENT YEARS 2007-08, THE GP R ATE OF 17.30% UNDER SIMILAR CIRCUMSTANCES WAS UPHELD AT THE ITAT LEVEL. IN THE PRESENT CASE, THERE WAS DECLINE IN THE EXPORT SALE FOR THE YEAR U NDER CONSIDERATION WHICH REDUCED FROM RS. 18.28 CRORES TO RS. 16.60 CRORES, THAT MAY BE A REASON FOR DECLINE IN THE GP RATE. WE, THEREFORE, ARE OF THE VIEW THAT THE LD CIT(A) WAS NOT JUSTIFIED IN APPLYING THE GP RATE OF 17.30% ON THE BASIS OF GP RATE OF THE ASSESSMENT YEARS 2006-07 AND 2007-08. IN THE PRESENT CASE, THE ASSESSING OFFICER HAD ACCEPTED THE TURN OVER DECLAR ED BY THE ASSESSEE AND 10 DID NOT POINT OUT ANY SUPPRESSED SALES OR INFLATED PURCHASES. THE ASSESSING OFFICER ALTHOUGH STATED THAT SOME OF THE PURCHASE B ILLS WERE DRAWN BY THE ASSESSEE ITSELF, AND SOME OTHER WERE CLEARED IN CAS H, HOWEVER, NO SPECIFIC INSTANCE WAS QUOTED WHERE THE PURCHASES WERE INFLAT ED. AT THE SAME TIME, IT IS AN ADMITTED FACT THAT THE ASSESSEE HAD NOT MAINT AINED THE STOCK REGISTER AND SOME OF THE PURCHASES WERE NOT FULLY VERIFIABLE . IT IS TRUE THAT MERELY ON THE BASIS OF NON MAINTENANCE OF STOCK REGISTER; THE BOOK RESULTS CANNOT BE REJECTED. IN THE PRESENT CASE, AS FEW OF THE PURCH ASES WERE NOT FULLY VERIFIABLE, THEREFORE, IN THOSE CIRCUMSTANCES, SOME ADDITION IS REQUIRED TO COVER UP ANY LEAKAGE. WE, THEREFORE, BY CONSIDERIN G IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND BY KEEPING IN VIEW THIS VITAL FACT THAT THE EXPORT TURN OVER OF THE ASSESSEE GOT REDUC ED IN THE YEAR UNDER CONSIDERATION IN COMPARISON TO THE EARLIER YEAR AND ALSO TO MEET THE ENDS OF JUSTICE, THINK IT FAIR AND REASONABLE TO APPLY THE GP RATE OF 17% ON THE TURN OVER DECLARED BY THE ASSESSEE INSTEAD OF 17.30% APP LIED BY THE LD CIT(A). THUS, THE GROUND RAISED BY THE DEPARTMENT FAILS AND THAT OF THE ASSESSEE IS PARTLY ALLOWED. 15. THE ANOTHER GRIEVANCE OF THE DEPARTMENT VIDE GR OUND NO.2 RELATES TO THE DEDUCTION U/S 80IB OF THE ACT. 16. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE TH AT THE ASSESSING OFFICER DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE U/ S 80IB OF THE ACT ON THE SAME FOOTINGS AS WAS DONE IN THE EARLIER YEARS AS M ENTIONED IN PARA 2 OF THE ASSESSMENT ORDER DATED 23.12.2010, AND WHEN THE ASS ESSEE CARRIED THE MATTER 11 TO THE LD CIT(A), THE DEDUCTION CLAIMED U/S 80IB OF THE ACT WAS ALLOWED BY LD CIT(A) BY OBSERVING IN PARA 6.3 OF THE IMPUGNED ORDER WHICH READS AS UNDER;- 6.3 I HAVE GONE THROUGH THE FACTS OF THE CASE AND IT I S OBSERVED THAT SAME ISSUE HAD BEEN DECIDED BY THE HO N'BLE ITAT VIDE ORDER DATED 18-9-2008 FOR THE AY 2004-05 AND T HE CIT (A) IN APPELLATE ORDERS FOR ASSESSMENT YEAR 2005-06 IN APPEAL NO. 257/07-08 DATED 7-10-2008, AY 2006-07 IN APPEAL NO. 296/08-09 DATED 24-4-2009 AND AY 2007-08 IN APPEAL NO .329 / 2009 - 2010 DATED 27-12-2010 . SINCE, THERE IS NO NEW FACT S IN THE YEAR UNDER CONSIDERATION, THEREFORE, I AGREE ON THE FIND ING GIVEN BY MY PREDECESSOR IN APPELLATE ORDERS FOR AY 2005-06, 2006-07 & 2007-08 AND FOLLOWING THE DECISION OF JURISDICTION ITAT IN APPELLANTS OWN CASE FOR AY 2004-05, I HOLD THAT AP PELLANT IS ELIGIBLE FOR CLAIM OF DEDUCTION U/S 801B. THE ASSES SING OFFICER IS DIRECTED TO ALLOW THE DEDUCTION U/S 80IB AFTER EXCL UDING RECEIPT OF DEPB / DDB ETC. IF ANY. 17. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES. IT IS NOTICED THAT IN THE PRECEDING ASSESSMENT YEAR I.E. 2007-08 AN IDENTICAL ISSUE WAS THE SUBJECT MATTER OF THE DEPARTMENTAL APPEAL IN ITA NO . 66/JU/2011 IN ASSESSEES OWN CASE WHERE THE DEDUCTION HAS BEEN AL LOWED BY OBSERVING IN PARA 3.3 OF THE ORDER DATED 16.12.2011 WHICH READS AS UNDER:- 3.3 WE HAVE HEARD BOTH THE PARTIES. THE ID. CIT(A) HAS ALLOWED DEDUCTION U/S 80IB ON THE BASIS OF THE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEARS. FOLLOWIN G THE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE , WE HOLD THAT THE ID. CIT(A) WAS 12 JUSTIFIED IN DIRECTING THE AO TO ALLOW DEDUCTION U/ S 80IB OF THE ACT AMOUNTING TO RS. 7,59,298/- 18. SINCE THE FACTS RELATING TO THIS ISSUE FOR THE YEAR UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS INVOLVED IN THE ASSESSME NT YEAR 2007-08, SO RESPECTFULLY FOLLOWING THE EARLIER ORDER DATED 16.1 2.2011 OF THE TRIBUNAL, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S 80IB OF TH E ACT. 19. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED AND CROSS OBJECTION FILED BY THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 19.12.2012 ) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 19 TH DECEMBER, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR