ACIT 8(1), MUMBAI V. ENEM NOSTRUM REMEDIES P. LTD, MUMBAI

ITA 4076/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1950 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 02-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K ATRI
• Section: 80IB; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI R.V. EASWAR, SR. VICE PRESIDENT & SHRI R.K.PANDA, AM I.T.A. NO. 4076/MUM/2009 (ASSESSMENT YEAR 2006-07) ASST. CIT-8(1) R.NO. 210, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 VS. M/S. ENEM NOSTRUM REMEDIES PVT. LTD. UNIT NO. 201 TO 204, GAYATRI COMMERCIAL COMPLEX, ANDHERI KURLA ROAD, BEHIND MITTAL INDL. ESTATE, ANDHERI (EAST), MUMBAI-400 059 PAN: AAACE8766G APPELLANT RESPONDENT APPELLANT BY : SHRI A.K. ATRI RESPONDENT BY : NONE ORDER DATE OF HEARING: 26.04.2010 DATE OF ORDER: 30.04.2010 PER R.K.PANDA, AM , THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 21 ST APRIL, 2009 OF THE CIT(A)-VIII, MUMBAI RELATING TO ASSESSMENT YEAR 2006-07. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SER VICE OF NOTICE. THEREFORE, THE MATTER IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LEARNED DR. 3. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE REA DS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S. 80IB(8A) OF THE I.T. ACT WITHOUT APPRECIATING THE FACTS OF THE CASE. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSE E COMPANY HAS CLAIMED DEDUCTION U/S. 80IB(8A) OF THE INCOME-TAX ACT, 1961 (THE ACT). FROM THE ASSESSMENT ORDER RECORDS FOR THE A.YS. 2004-05 AND 2005-06, THE ASSESSING ITA NO. 4076/MUM/2009 M/S. ENEM NOSTRUM REMEDIES PVT. LTD. ============================= 2 OFFICER NOTICED THAT THE ASSESSEE HAD CLAIMED DEDUC TION U/S. 80IB(8A) OF THE ACT ONLY AS AN ALTERNATIVE CLAIM ON THE GROUND THAT IN THE EARLIER A.YS. I.E., A.YS. 2002- 03 AND 2003-04 THE CLAIM OF THE ASSESSEE IN RESPECT OF EXEMPTION U/S. 10B AND DEDUCTION U/S. 35 WAS REJECTED BY THE ASSESSING OFF ICER. THE ASSESSING OFFICER FURTHER NOTED THAT IN THE EARLIER YEARS I.E., A.YS. 2004-05 AND 2005-06 THE ASSESSEE HAS NOT CLAIMED DEDUCTION U/S. 80IB IN THE ORIGINAL RETURN AND HAS CLAIMED THE SAME DURING THE ASSESSMENT PROCEEDINGS. AFTER DUE DISCUSSION OF THE ISSUE AT PAGES 15 TO 18 OF THE ASSESSMENT ORDER AND FOLLOWING THE ASSESSMENT ORDER FOR THE EARLIER ASSESSMENT YEARS, THE ASSESSI NG OFFICER FINALLY HELD THAT THE ASSESSEE COMPANY IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(8A) OF THE ACT. 5. IN APPEAL, THE CIT(A) FOLLOWING THE ORDER OF THE TR IBUNAL VIDE I.T.A. NOS. 1179/MUM/08 AND 1180/MUM/08 ORDER DATED 20 TH AUGUST, 2008 FOR THE A.YS. 2003-04 AND 2004-05 ALLOWED THE CLAIM OF THE ASSESS EE FOR GRANT OF DEDUCTION U/S. 80IB(8A). AGGRIEVED WITH SUCH ORDER OF THE CI T(A), THE REVENUE IS IN APPEAL BEFORE US. 6. THE LEARNED DR FAIRLY CONCEDED THAT THE ISSUE HAS B EEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL AND THE REVENUE HAS GONE TO THE HIGH COURT AGAINST THE ORDER OF THE TRIBUNAL. SINCE THE LEAR NED CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL FOR THE A.YS. 2003-04 AND 200 4-05 IN ASSESSEES OWN CASE FOR THE EARLIER YEARS AND SINCE THE ORDER OF THE TR IBUNAL HAS NOT YET BEEN REVERSED BY THE HIGH COURT, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE WE UPHOLD THE ORDER OF THE CIT(A). THE GROUND RAISED BY THE REVENUE IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. PRONOUNCED ON 30 TH APRIL, 2010 SD/- (R.V. EASWAR) SR. VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 30 TH APRIL, 2010 ITA NO. 4076/MUM/2009 M/S. ENEM NOSTRUM REMEDIES PVT. LTD. ============================= 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-VIII, MUMBAI 4. THE CIT-VIII, MUMBAI 5. THE DR E BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO