ITO 8(3)(2), MUMBAI V. SITARA DIAMOND P. LTD, MUMBAI

ITA 4422/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100735 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 29-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND RAM L AL NEGI, JUDICIAL MEMBER / I .T.A. NO. 4422/MUM/2012 ( / ASSESSMENT YEAR : 2006 - 07 AND / I .T.A. NO. 6727/MUM/2011 ( / ASSESSMENT YEAR : 2007 - 08 THE ACIT - 8(3), AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. M/S. SITARA DIMOND PVT. LTD., SEEPZ, UNIT NO. 108, SDF - IV, ANDHERI (E), MUMBAI - 400 096 ./ ./ PAN/GIR NO. : AAACQ 1711F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI S.K. MAHAPATRA / RESPONDENT BY: SHRI NITESH JOSHI / DATE OF HEARING : 0 2 .0 9 .2015 / DATE OF PRONOUNCEMENT : 0 2 .0 9 .2015 / O R D E R PER N.K. BILLAIYA, AM: TH ESE APPEAL S ARE BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) - 18 , MUMBAI DT. 5.7.2011 AND 4.4.2012 PERTAINING TO ASSESSMENT YEA R S 2006 - 07 & 200 7 - 0 8 . AS BOTH THESE APPEALS HAVE M/S. SITARA DIAMOND PVT. LTD. 2 COMMON GRIEVANCE, THEREFORE THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GRIEVA NCE IN BOTH THE YEARS IS THAT THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION U/S. 10A OF THE ACT. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE CLAIM OF DEDUCTION U/S. 10A WAS FIRST MADE IN ASSESSMENT YEAR 2005 - 06 AND WHICH HAS BEEN ALLOWED BY THE AO BY THE ORDER DATED 10.12.2008 MADE U/S. 143(3) OF THE ACT. IT IS THE SAY OF THE LD. COUNSEL SINCE THE IMPUGNED ASSESSMENT YEARS ARE NOT THE INITIAL ASSESSMENT YEAR, THE REVENUE CANNOT WITHDRAW THE CLAIM OF DEDUCTION. THE LD. COUNSEL FU RTHER STATED THAT THOUGH THE LD. CIT(A) HAS ALLOWED THE CLAIM OF DEDUCTION ON MERIT OF THE CASE YET THE LAW IS WELL SETTLED THAT UNLESS THE INITIAL YEARS CLAIM IS WITHDRAWN, SUBSEQUENT YEARS CLAIM CANNOT BE DENIED. 4. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. THE HONBLE HIGH COURT OF BOMBAY HAS CONSIDERED SUCH ISSUE IN THE CASE OF CIT VS PAUL BROTHERS 216 ITR 548 WHEREIN THE HONBLE HIGH COURT HAS HELD THAT UNLESS DEDUCTIONS ALLOWED FOR THE ASSESSMENT YEA R 1980 - 81 ON THE SAME GROUND S WERE WITHDRAWN, THEY COULD NOT BE DENIED FOR THE SUBSEQUENT YEARS. THIS DECISION OF THE HONBLE HIGH COURT OF BOMBAY WAS FOLLOWED BY THE HONBLE HIGH COURT IN THE CASE OF CIT VS WESTERN OUTDOOR INTERACTIVE PVT. LTD. 349 ITR 309 WHEREIN THE HONBLE HIGH COURT HAS HELD THAT WHERE A BENEFIT OF DEDUCTION IS AVAILABLE FOR A PARTICULAR NUMBER OF YEARS ON SATISFACTION OF CERTAIN CONDITIONS UNDER THE PROVISIONS OF THE INCOME - TAX ACT, 1961, THEN UNLESS RELIEF GRANTED FOR THE FI RST ASSESSMENT YEAR IN WHICH THE CLAIM M/S. SITARA DIAMOND PVT. LTD. 3 WAS MADE AND ACCEPTED IS WITHDRAWN OR SET ASIDE, THE INCOME - TAX OFFICER CANNOT WITHDRAW THE RELIEF FOR SUBSEQUENT YEARS. MORE PARTICULARLY SO, WHEN THE REVENUE HAS NOT EVEN SUGGESTED THAT THERE WAS ANY CHANGE IN THE FACTS WARRANTING A DIFFERENT VIEW FOR SUBSEQUENT YEARS. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA), WE DECLINE TO INTERFERE WITH THE DECISION OF THE LD. CIT(A). 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND SEPTEMBER , 2015 SD/ - SD/ - ( RAM L AL NEGI ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 2 ND SEPTEMBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR)