The I.T.O.-4(1), Agra V. M/s Banke4y Bihari Industries (P) Ltd., Agra

ITA 440/AGR/2010

• Counselvise Citation: 44020314 RSA 2010
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NOS.439 & 440/AGR/2010 ASSESSMENT YEARS: 2003-04 & 2004-05 RESPECTIVELY INCOME TAX OFFICER 4(1), VS. M/S BANKEY BIHARI INDUSTRIES P. LTD., AGRA. 10/9B, KATRA WAZIR KHAN, RAM BAGH, AGRA. (PAN: AABCB 9637 Q). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : SHRI RAKESH AGARWAL, C.A. DATE OF HEARING : 20.10.2011 DATE OF PRONOUNCEMENT : 20.10.2011 ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THESE TWO APPEALS AGAINST TWO DIFFERENT IMPUGNED ORDERS DATED 31.08.2010 PASSED BY THE LD. CIT(A)-II , AGRA FOR THE ASSESSMENT YEARS 2003-04 & 2004-05 ON THE FOLLOWING GROUNDS OF APPEAL :- GROUNDS OF APPEAL IN ITA NO.439/AGR/2010 ITA NOS.439 & 440/AGR/2010 A.YS. 2003-04 & 2004-05 2 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACTS ALLOWING DEDUCTION U/S 80IB(11) AMOUNTING ` 26,61,520/- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE COMPANY DOES NOT FULFILL THE PRESCRIBED CONDITIONS AS LAID DOWN IN THE PROVISIONS OF SECTION 80IB OF THE I.T. ACT, 1961. 2. THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL), AGRA BEING ERRONEOUS IN LAW AND ON FACTS DESERVED TO BE QUASHED AND THAT OF THE ASSESSING OFFICER DESERVES TO BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUND OR GROUNDS OF APPEALS AS MAY BE DEEMED FIT A T THE TIME OF HEARING OF APPEAL. GROUNDS OF APPEAL IN ITA NO.440/AGR/2010 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACTS ALLOWING DEDUCTION U/S 80IB(11) AMOUNTING ` 21,11,669/- WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE COMPANY DOES NOT FULFILL THE PRESCRIBED CONDITIONS AS LAID DOWN IN THE PROVISIONS OF SECTION 80IB OF THE I.T. ACT, 1961. 2. THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL), AGRA BEING ERRONEOUS IN LAW AND ON FACTS DESERVED TO BE QUASHED AND THAT OF THE ASSESSING OFFICER DESERVES TO BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUND OR GROUNDS OF APPEALS AS MAY BE DEEMED FIT A T THE TIME OF HEARING OF APPEAL. 2. THE FACTS NARRATED BY THE DEPARTMENT ARE NOT DIS PUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. ITA NOS.439 & 440/AGR/2010 A.YS. 2003-04 & 2004-05 3 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE ORDER OF THIS BENCH DATED 25.04.20 08 PASSED IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001-02 IN ITA NO.340 /AGR/2004. HE FURTHER STATED THAT AGAINST THE ORDER OF THIS BENCH DATED 25.04.20 08 IN THE CASE OF ITO VS. M/S AMBIKA SHEET GRAH P. LTD, THE HONBLE JURISDICTIONA L HIGH COURT HAS DISMISSED THE DEPARTMENTAL APPEAL BY UPHOLDING THE ORDER OF T HIS BENCH ON 10.08.2011. HE HAS ALSO FILED COPIES OF THESE ORDERS AND REQUESTED THAT THE APPEALS FILED BY THE REVENUE MAY BE DISMISSED. 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER OF THIS BENCH DATED 2 5.04.2008 PASSED IN ASSESSEES OWN CASE AS WELL AS THE ORDER OF HONBLE JURISDICTI ONAL HIGH COURT PASSED IN CASE NO.385 OF 2008 IN THE APPEAL FILED BY THE DEPARTMEN T IN CIT VS. M/S AMBIKA SHEET GRAPH P. LTD. WE ARE OF THE CONSIDERED OPINION THA T THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY T HIS BENCH IN ASSESSEES OWN CASE AND THE ORDER OF THIS BENCH HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL ITA NOS.439 & 440/AGR/2010 A.YS. 2003-04 & 2004-05 4 HIGH COURT ON 10.08.2011 IN THE APPEAL FILED BY THE DEPARTMENT IN CIT VS. AMBIKA SHEET GRAPH P. LTD. THEREFORE, RESPECTFULLY FOLLOW ING THE ORDER OF HONBLE JURISDICTIONAL HIGH COURT (SUPRA), THE APPEALS FILE D BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 20.10.2011). SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 20 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY