Tacon Infrstructure Pvt Ltd, PORBANDAR V. The Additional Commissioner of Income Tax, Range 2, JAMNAGAR

ITA 390/RJT/2009

• Counselvise Citation: 39024914 RSA 2009
• Duration Of Justice: 2 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 01-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LD BHARTI
• Assessee Lawyers: PM MAHARSHI
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.390/RJT/2009 - AY 2006-07 I.T.A NO.1050 /RJT/2010 - AY 2007-08 TACON INFRASTRUCTURE PVT LTD VS ADDL CIT, RANGE-2 TACON HOUSE, WADI PLOT JAMNAGAR PORBANDAR PAN : AABCT4416D (APPELLANT) (RESPONDENT) I.T.A. NO.839/RJT/2009 (ASSESSMENT YEAR 2006-07) ACIT,CIR..2 VS M/S TACON INFRASTRUCTURE PVT LTD JAMNAGAR PORBANDAR (APPELLANT) (RESPONDENT) DATE OF HEARING : 25-08-2011 DATE OF PRONOUNCEMENT : 26-08-2011 ASSESSEE BY : SHRI PM MAHARSHI REVENUE BY : SHRI LD BHARTI O R D E R PER N.R.S. GANESAN, JM ITA NO.839/RJT/2009 IS FILED BY THE REVENUE FOR TH E ASSESSMENT YEAR 2006- 07. ITA NOS 390/RJT/2009 AND ITA NO.1050/RJT/2010 ARE FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08, RESPE CTIVELY. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THE THREE APP EALS, WE HEARD THE SAME TOGETHER AND ARE DISPOSING OFF THE SAME BY THIS COM MON ORDER. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IN ALL T HE THREE APPEALS IS WITH REGARD TO DEDUCTION CLAIMED BY THE ASSESSEE U/S 80I A OF THE INCOME-TAX ACT. 3. THE ASSESSEE FILED AN APPLICATION U/S 158A OF TH E ACT ON THE GROUND THAT AN IDENTICAL ISSUE ARISES FOR CONSIDERATION FOR THE ASSESSMENT YEARS 2001-02 TO ITA NO.390 & 839/RJT/2009 ITA 1050/RJT/2010 2 2005-06 WHICH IS PENDING BEFORE THE GUJARAT HIGH CO URT FOR ADJUDICATION. THE GUJARAT HIGH COURT ADMITTED THE APPEALS AND THEY AR E STILL PENDING. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN ORDER TO AVOID REPETITION ON THE SAME IDENTICAL ISSUE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION THE ASSESSEE HAS FILED AN APPLICATION U/S 158A UNDERTAKING NOT T O FILE ANY APPEAL FOR THE ASSESSMENT YEARS UNDER CONSIDERATION AND THE ASSESS EE HAS NO OBJECTION TO FOLLOW THE JUDGMENT OF THE GUJARAT HIGH COURT, WHIC H WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. THE COPY OF THE APPLICATION FILED BY THE ASSESSEE WAS FORWARDED TO THE ASSESSING OFFICER THROUGH THE DR. THE ASSESSING OFFICER, AFTER VERIFYING THE RECORDS, HAS STATED THAT THE QUESTION OF LAW RAISED BEFORE THE ITAT FOR THE ASSE SSMENT 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 COURT. ON A QUERY FROM THE BENCH, THE LD.DR SUBMITTED THAT THE FACTS WHICH ARISE FOR CONS IDERATION DURING THE ASSESSMENT YEARS UNDER CONSIDERATION AND THE ISSUE WHICH WAS DECIDED EARLIER BY THE TRIBUNAL ARE SIMILAR AND IDENTICAL AND THERE FORE, WHATEVER JUDGMENT THE HIGH COURT DELIVER, WOULD BE EQUALLY APPLICABLE FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ALSO. THEREFORE, THE LD.DR SUBMITTED THAT HE HAS NO OBJECTION TO REMIT BACK THE MATTER BACK TO THE FILE OF THE ASSES SING OFFICER TO DECIDE THE SAME ON THE BASIS OF THE JUDGMENT OF THE GUJARAT HIGH CO URT WHICH WOULD BE DELIVERED FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. 3. SINCE BOTH THE ASSESSEE AS WELL A THE REVENUE SU BMITS THAT THE FACTS ARISES FOR CONSIDERATION FOR THE ASSESSMENT YEARS U NDER CONSIDERATION ARE SIMILAR AND IDENTICAL TO THAT OF THE FACTS FOR THE ASSESSME NT YEARS 2001-02 TO 2005-06 AND THE MATTER IS PENDING BEFORE THE HIGH COURT, IN OUR OPINION, IN ORDER TO AVOID REPETITION OF APPEALS, THE MATTER NEEDS TO BE DECID ED ON THE BASIS OF THE JUDGMENT OF THE GUIJARAT HIGH COURT WHICH WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001-02 TO 2005-06. WE MAY MA KE IT CLEAR THAT THE ASSESSEE SHALL NOT BE ENTITLED TO FILE ANY APPEAL S INCE THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER ON THE UNDERTA KING GIVEN BY THE ASSESSEE TO ITA NO.390 & 839/RJT/2009 ITA 1050/RJT/2010 3 FOLLOW THE JUDGMENT OF THE GUJARAT HIGH COURT FOR T HE ASSESSMENT YEARS 2001-02 TO 2005-06. 4. IN VIEW OF THE ABOVE, THE ORDERS OF THE LOWER AU THORITIES FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE SET AIDE A ND THE ISSUE IN ALL THE APPEALS UNDER CONSIDERATION WITH REGARD TO DEDUCTIO N U/S 80IA(4) IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSIN G OFFICER SHALL DECIDE THE ISSUE ON THE BASIS OF THE JUDGMENT OF THE GUJARAT HIGH CO URT WHICH WOULD BE DELIVERED IN DUE COURSE FOR THE ASSESSMENT YEARS 2001-02 TO 2 005-06 IN THE ASSESSEES OWN CASE. 5. WITH THE ABOVE OBSERVATIONS, ALL THE THREE APPEA LS ARE ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26-08-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 26 TH AUGUST, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT