The Dy.Commissioner of Incoem-tax, Jammu V. M/s. Fil Industries Ltd, Srinagar

ITA 397/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8777 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NO. 397(ASR)/2014 ASSESSMENT YEAR: 2005-06 DCIT, CIRCLE-1, 2 ND FLOOR AAYAKAR BHAWAN, RAILHEAD COMPLEX, JAMMU. VS. M/S. FIL INDUSTRIES LTD., 7-SHEIKH BAGH, SRINAGAR. PAN:AAACF3272A (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARSEM LAL (D R.) RESPONDENT BY: SH. SALIL AGGARWAL (ADV.) DATE OF HEARING: 23.03. 2016 DATE OF PRONO UNCEMENT: 29.03.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORDE R OF LEARNED CIT(A), JAMMU DATED 28.03.2014 FOR ASST. YEAR. 200 5-06. 2. THE ONLY GRIEVANCE RAISED BY REVENUE IN THIS AP PEAL IS THE ACTION OF LEARNED CIT(A), BY WHICH HE HAD DELETED THE PENA LTY IMPOSED BY ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. IN ITS GROUND OF APPEAL THE REVENUE IS AGGRIEVED THAT SINCE THE REVENUE HAD FIL ED APPEAL AGAINST THE ORDER OF TRIBUNAL WHEREBY TRIBUNAL HAD ALLOWED DEDU CTION U/S 80IB, THEREFORE, LEARNED CIT(A) SHOULD NOT HAVE DELETED T HE PENALTY. ITA NO.397 (ASR)/2014 ASST. YEAR: 2005-06 2 3. THE BRIEF FACTS OF THE CASE AS NOTED IN THE PENA LTY ORDER ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN MANUFACTURING OF PESTICIDES AND AGRO PRODUCTS. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED DEDUCTION U/S 80IB WHICH THE ASSESSING OFFICER DID NOT ALLOW AND LEARNED CIT(A) ALSO CONFIRMED THE ACTION OF ASSESSI NG OFFICER AND THEREFORE, THE ASSESSING OFFICER IMPOSED PENALTY U/ S 271(1)(C) OF THE ACT FOR WRONG CLAIM MADE BY ASSESSEE U/S 80IB. 4. AT THE OUTSET, THE LEARNED AR INVITED OUR ATTENT ION TO (PB-1TO 79) WHERE A COPY OF ORDER OF ITAT, AMRITSAR BENCH IN IT A NO.415(ASR)/2009 WAS PLACED. THE LEARNED AR SUBMITTED THAT IN THIS T RIBUNAL ORDER THE HONBLE TRIBUNAL HAS REVERSED THE ORDER OF CIT(A) A ND HAS ALLOWED THE DEDUCTION U/S 80IB FOR ONE UNIT AND HAD RESTORED TH E CLAIM U/S 80IB FOR ANOTHER UNIT TO ASSESSING OFFICER AND THEREFORE, WH EN THE DISALLOWANCE DID NOT SURVIVE THE LEARNED CIT(A) HAS RIGHTLY DELE TED THE PENALTY. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT TRIBUNAL IN ITS ORDER DATED 27.06.2012 IN ITA NO.415(ASR)/2009, HAS ALLOWED DED UCTION U/S 80IB FOR ONE UNIT AND FOR ANOTHER UNIT HAS RESTORED THE ISSU E TO ASSESSING OFFICER. THE LEARNED CIT(A) HAS DELETED THE PENALTY AFTER RE LYING UPON THE ABOVE SAID TRIBUNAL ORDER AND THEREFORE, THERE IS NO INFI RMITY IN THE ORDER OF ITA NO.397 (ASR)/2014 ASST. YEAR: 2005-06 3 CIT(A) WHO HAD JUST FOLLOWED THE TRIBUNAL ORDER AND WHEN THE CLAIM OF THE ASSESSEE IS ALLOWED, THERE IS NOTHING LEFT FOR IMPOSING PENALTY U/S 271(1)(C). THE RELEVANT FINDINGS OF LEARNED CIT(A) IN THIS RESPECT ARE REPRODUCED. GROUND OF APPEAL NO.1 RELATES TO PENALTY OF RS.5,8 0,464/- ON DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB OF ACT AMOUNTING TO RS.7,13,514/-. THE AO HAS IMPOSED THE PENALTY U/S 2 71(1)(C) OF THE ACT ON THE ADDITION OF RS.7,01,56,903/- & RS.11,58,611/- O N ACCOUNT OF DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB OF THE ACT IN RESPECT OF UNIT 2 & UNIT 3 AND CA STORE AND CONCLUDED THAT THE APPELL ANT HAS WILLFULLY MADE A WRONG CLAIM TO AVOID TAX. IT IS NOTICED THAT THE HONBLE TRIBUNAL VIDE ITS ORDER IN ITA NO.415(ASR)/2009 DATED 27.06.2012 HAS DELETED THE DISALLOWANCE OF RS.7,01,56,903/- IN RESPECT OF UNIT 2 & 3 WHILE ADJUDICATION THE GROUND OF APPEAL NO 1 TO 4 AND 7 & 7.1 OF THE APPELLANT. FURTHER, THE ISSUE OF DISALLOWANCE OF RS.11,58,611/ - IN RESPECT OF CA STORE HAS BEEN SET ASIDE BY THE HONBLE TRIBUNAL WHILE AD JUDICATING THE GROUND OF APPEAL NO.6 OF THE APPELLANT. SINCE THE QUANTUM OF ADDITIONS MADE BY THE AO HAS BEEN DELETED OR SET ASIDE THE PRESENT AP PEAL AGAINST THE ORDER OF PENALTY ON SAID ADDITIONS CANNOT BE SUSTAINED. A CCORDINGLY, THE PENALTY ORDER UNDER CONSIDERATION IS CANCELLED. AS THE PENALTY ORDER UNDER APPEAL IS CANCELLED AS D ISCUSSED ABOVE, THE OTHER GROUNDS OF APPEAL ARE NOT REQUIRED TO BE ADJU DICATED AND ACCORDINGLY DISMISSED. 7. THE GROUND OF REVENUE THAT SINCE THE SAID ORDER OF TRIBUNAL HAS BEEN CHALLENGED IN HIGH COURT, THEREFORE, LEARNED C IT(A) SHOULD NOT HAVE DELETED THE PENALTY DOES NOT CARRY ANY FORCE AS REV ENUE WAS NOT ABLE TO ITA NO.397 (ASR)/2014 ASST. YEAR: 2005-06 4 DEMONSTRATE THAT THE SAID TRIBUNAL ORDER WAS DISTUR BED OR SOME STAY WAS GRANTED BY HIGHER COURTS AGAINST THE SAID TRIB UNAL ORDER. 8. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE RE VENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH MARCH, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED:29.03.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.