The ITO, Ward-4(3), Surat V. M/s. Sumilon Industries Ltd., Surat

ITA 438/AHD/2007

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67670 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 31-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Section: 80IB

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.438/AHD/2007 WITH CO NO.78/AHD/2007 [ASSTT.YEAR : 2003-2004] ITO, WARD-3(3) SURAT. /VS. M/S.SUMILON INDUSTRIES LTD. 6/121, DELHI GATE, VERAGINI WADI SURAT. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) + 1 2 )/ REVENUE BY : SHRI O.P. BATHEJA, SR.DR 4& 1 2 )/ ASSESSEE BY : SHRI MEHUL SHAH 5 1 &(*/ DATE OF HEARING : 21 ST AUGUST, 2013 678 1 &(*/ DATE OF PRONOUNCEMENT : 5.9.2013 )9 / O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: THIS APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE AR E ARISING OUT OF THE ORDER OF CIT(A)-III, SURAT DATED 27.11.2006. 2. IN THE APPEAL OF THE REVENUE THE GROUND READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THELD.CIT(A) HAS ERRED IN DIRECTING THE AO TO ALLOW THE ITA NO.438/AHD/2007 WITH CO NO.78/AHD/2007 -2- CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80IB OF THE ACT ON THE PROFITS EARNED FROM THE METALLIC YARN. 2. THE LD.CIT(A) HAS NOT APPRECIATED THE FACT THAT THE CLAIM OF THE ASSESSEE IN RESPECT OF THE PRODUCTION OF MET ALLIC YARN AND METALLIZED POLYESTER FILM WAS RIGHTLY REJECTED BY T HE AO FOR DEDUCTION U/S.80IB OF THE ACT. 3. AT THE OUTSET, THE LEARNED AR OF THE ASSESSEE SU BMITTED THAT AGAINST THE ORDER PASSED FOR ASSESSMENT YEARS 2003-2004 TO 2009-2010, THE ASSESSEE HAD FILED APPLICATION BEFORE THE INCOME TA X SETTLEMENT COMMISSION, AND THE SETTLEMENT COMMISSION HAS PASSE D AN ORDER DATED 29.03.2012, AND THAT IN THOSE YEARS, ONE OF THE ISS UE WAS WITH RESPECT TO DEDUCTION UNDER SECTION 80IB OF THE ACT. HE FURTHE R SUBMITTED THAT SINCE SETTLEMENT COMMISSION HAS UPHELD THE ORDER OF THE C IT(A), THE PRESENT GROUND OF THE REVENUE DOES NOT SURVIVE, AS THE MATT ER HAS ATTAINED FINALITY. HE HAS PLACED ON RECORD THE COPY OF THE SETTLEMENT COMMISSION ORDER DATED 29.3.2012 FILED IN COMPILATION BEFORE US. HE FURTHER SUBMITTED THAT IN VIEW OF AFORESAID FACTS, THE GROUNDS RAISED IN THE CO ARE ALSO NOT PRESSED. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE OR DER OF THE AO. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE AO IN HIS ORDER HAD DISAL LOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB OF THE ACT. AGAINST TH E ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), AND THE CIT(A) VIDE HIS ORDER DATED 27.11.2006 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. AGGRIEVED REVENUE PREFERRED AN APPEAL BEFORE THE TR IBUNAL AGAINST THIS ORDER OF THE CIT(A). HOWEVER, DURING THE PENDENCY OF THE PROCEEDINGS BEFORE THE TRIBUNAL, THE ASSESSEE MOVED A SETTLEMEN T APPLICATION UNDER SECTION 245C(1) OF THE I.T.ACT ON 26.11.2010 BEFORE INCOME TAX SETTLEMENT COMMISSION, MUMBAI. THE SETTLEMENT COMM ISSION HAS PASSED AN ORDER DATED 29.3.2012 UNDER SECTION 245D(4) OF T HE I.T.ACT, A COPY OF WHICH IS PLACED ON RECORD. AS PER SUBMISSIONS OF T HE LEARNED AR OF THE ITA NO.438/AHD/2007 WITH CO NO.78/AHD/2007 -3- ASSESSEE, THE ISSUE OF DEDUCTION UNDER SECTION 80IB HAS BEEN CONSIDERED BY THE SETTLEMENT COMMISSION IN FAVOUR OF THE ASSESSEE , AND THUS THE ISSUE ATTAINED ITS FINALITY. THE AFORESAID SUBMISSION MA DE BY THE LD.AR COULD NOT BE CONTROVERTED BY THE REVENUE BY BRING ANY CONTRAR Y MATERIAL ON RECORD. FURTHER, SECTION 245-I OF THE ACT READS AS UNDER: 245-I. ORDER OF SETTLEMENT TO BE CONCLUSIVE.--EVER Y ORDER OF SETTLEMENT PASSED UNDER SUB-SECTION (4) OF SECTION 245D SHALL BE CONCLUSIVE AS TO THE MATTERS STATED THEREIN AND NO MATTER COVERED BY SUCH ORDER SHALL, SAVE AS OTHERWISE PROVIDED IN THI S CHAPTER, BE REOPENED IN ANY PROCEEDING UNDER THIS ACT OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE. IN THIS VIEW OF THE AFORESAID FACTS, SINCE THE ISSU E OF DEDUCTION U/S.80IB HAS ATTAINED FINALITY, THE APPEAL OF THE REVENUE HAS BE COME INFRUCTUOUS AND THE SAME IS THEREFORE DISMISSED. SINCE THE ASSESSEE HAS ALS O NOT PRESSED ITS CO FOR ADJUDICATION, THE SAME IS ALSO DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISMISSED ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER AR, ITAT, AHMEDABAD