DCIT 9(2), MUMBAI V. JYOTI PLASTIC WORKS P. LTD, MUMBAI

ITA 4353/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4131 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 12-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Keywords: Rule of consistency
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4353/MUM/2014 ASSESSMENT YEAR: 2010-11 DCIT 9 (2), ROOM NO. 218, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 VS. M/S JYOTI PLASTIC WORKS PVT. LTD., BOMBAY TALKIES COMPOUND, 94, HIMANSHU RAI ROAD, MALAD(W), MUMBAI-400064. PAN: AAACJ1381Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ALOK JOHRI (DR) ASSESSEE BY : SHRI HORMUZD JAMSH EDJI DATE OF HEARING : 12.01.2016 DATE OF PRONOUNCEMENT : 02.02.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER DATED 17.04.2014 PASSED BY CIT(A)-20, MUMBAI FOR ASSESSMENT YEAR(AY) 2010-11 ON THE FOLLOWING GROUNDS OF APPEAL: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD CIT (A) WAS NOT CORRECT IN HOLDING THAT THE ASSESSE E WAS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT, AMOUNTING TO RS.64,30,954/-, W ITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITION O F SECTION 80IB(2)(III) OF THE INCOME TAX ACT, 1961 ?' 2. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD CIT (A) WAS CORRECT IN ALLOWING DEDUCTION U/S 80IB OF THE ACT FOLLOWING THE DECISION OF LD CIT(A) FOR A.Y. 2009-10 HAD THE DECI SION OF HON'BLE BOMBAY HIGH COURT FOR A.Y. 1999-2000 TO 2004-2005 IN ASSES SEE'S OWN CASE, WITHOUT APPRECIATING THE FACTS THAT DEPARTMENT HAS NOT ACCE PTED THESE DECISIONS AND SLP HAS BEEN FILED BEFORE THE HON'BLE SUPREME COURT?' 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 2 ITA NO. 4353/M/2014 M/S JYOTI PLASTIC WORKS PVT. LT D. 2. THE BRIEF FACT OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF ENGINEERING PLASTIC PR ODUCTS, FILED ITS RETURN OF INCOME ON 30.09.2010 DECLARING TOTAL INCOME OF RS. 1,79,24 ,711/-. THE RETURN WAS PROCESSED U/S. 143(1) OF THE I.T. ACT, 1961 AND SELECTED FOR SCRUTINY. 3. WHILE MAKING THE ASSESSMENT, THE AO DISALLOWED THE DEDUCTION CLAIMED U/S. 80IB FOR RS. 64,30,954/- IN RESPECT OF DAMAN UNIT OF ASSESSE E WHICH HAD COMMENCED IN THE AY-2003-04 BEING 8 TH YEAR OF THE CLAIM AND THE ASSESSEE WAS ASK TO JUST IFY HIS CLAIM IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED HIS REP LY DATED 12.02.2013 AND EXPLAINED THAT SIMILAR DEDUCTION WAS ALLOWED BY THE HONBLE B OMBAY HIGH COURT IN ASSESSEES OWN CASE IN RESPECT OF AY-1999-2000, HOWEVER THE CO NTENTION OF ASSESSEE WAS NOT ACCEPTED BY THE AO BY OBSERVING THAT DEPARTMENT HAS FILED SLP BEFORE THE HONBLE SUPREME COURT OF INDIA AND DISALLOWED THE CLAIM IN ITS ORDER DATED 26.02.2013. 4. AGAINST THE ORDER OF AO, THE ASSESSEE FILED THE APP EAL BEFORE THE CIT(A) AND THE SAME WAS ALLOWED BY THE CIT(A) IN ITS ORDER DATED 17.04. 2014, AGAINST WHICH THE PRESENT APPEAL WAS FILED BEFORE US. 5. WE HAVE HEARD THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND DEPARTMENTAL REPRESENTATIVE (DR) OF THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AR OF THE ASSESSEE HAS PLACED ON RECORD THE COPY OF ORDER OF HONBLE SUPREME COURT ORDER DATED 28.04.2015 WHICH SHOWS THAT THE SLP FIL ED BY THE DEPARTMENT HAD BEEN DISMISSED. 6. THE AR OF THE ASSESSEE HAS ARGUED THAT THE ISSUE RA ISED IN THE PRESENT APPEAL ARE SQUARELY COVERED BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE TITLED AS CIT VS. M/S JYOTI PLASTIC WORKS PVT. LTD. REPORTED VIDE 339 ITR 491 (BOM). 7. THE DR OF THE REVENUE HAS FAIRLY CONCEDED THE FACT AND ADMITTED THAT SLP FILED BY THE DEPARTMENT HAD BEEN DISMISSED, AFTER FILING THE PRE SENT APPEAL. 8. WE HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD AN D FIND THAT GROUND RAISED BY THE REVENUE IN THE PRESENT APPEAL ARE SQUARELY COVERED BY THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE TITLED AS CIT VS. M/S JYOTI PLASTIC WORKS PVT. LTD. REPORTED VIDE 339 ITR 491 (BOM), HENCE, K EEPING IN VIEW THE PRINCIPLE OF CONSISTENCY, THE APPEAL OF THE REVENUE IS DISMISSED AND THE ORDER PASSED BY THE CIT(A) DATED 17.04.2014 IS UPHELD. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. 3 ITA NO. 4353/M/2014 M/S JYOTI PLASTIC WORKS PVT. LT D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF FEBRUARY 2016. SD/- SD/- (PRAMOD KUMAR) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 02/02/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/