Sun Polytex Pvt. Ltd., UDAIPUR V. Addl. CIT, UDAIPUR

ITA 448/JODH/2011

• Counselvise Citation: 44823314 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 29-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Bonafide mistake
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. M.A.NO. 102/JODH/2013 & ITA NO. 448/JODH/2011 (A.Y. 2008-09) M/S. SUN POLYTEX (P) LTD., VS. ADDL. CIT, 207 (A), MEWAR INDUSTRIAL AREA, RANGE 2, UDAIP UR. MADRI, UDAIPUR. PAN NO. AAECS 9347 K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 22/11/2013. DATE OF PRONOUNCEMENT : 22/11/2013. O R D E R PER N.K.SAINI, A.M M.A.NO. 102/JODH/2013 :- THIS MISCELLANEOUS APPLICATION ARISING OUT OF THE EXPARTE ORDER DATED 03/10/2012 IN I.T.A.NO. 448/JODH/2011 FOR THE A.Y. 2008-09 HAS BEEN FILED BY THE ASSESSEE. THE ASSESSEE CONTENDED THAT NOTICE OF HEARING ALONG OTHER ROUTINE PAPERS WAS SENT TO THE TAX CONSULTANT, BUT 2 SAME WAS MISPLACED AND NON-APPEARANCE HAD OCCURRED ON ACCOUNT OF SAID INADVERTENT AND BONAFIDE MISTAKE. THE ASSESSEE HAS REQUESTED TO RECALL THE EXPARTE ORDER AND THE APPEAL TO BE DECIDED ON M ERITS. 2. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE MISCELLANEOUS APPLIC ATION AND THE LEARNED D.R. OPPOSED FOR RECALLING THE ORDER PASSED BY THE ITAT. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , WE FOUND THAT THE EXPLANATION OF THE ASSESSEE AS PLAUSIBLE AND TH E EXPARTE ORDER PASSED ON 03/10/2012 IN I.T.A.NO. 448/JODH/2011 IS RECALLE D. 4. SINCE BOTH THE PARTIES WERE READY FOR HEARING OF THE APPEAL ON MERIT, ACCORDINGLY THE APPEAL IN I.T.A.NO. 448/JODH /2011 IS DISPOSED OFF AFTER HEARING BOTH THE PARTIES ON MERIT. 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN I TS APPEAL AS UNDER:- 1. THAT ON THE FACTS AND IN THE PRESENT CIRCUMSTAN CES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN LAW IN CONFIRMING THE DISALLOWANCE OF DEDUCTION OF RS. 25, 92,285/- U/S 80IB OF THE INCOME TAX ACT, 1961, MADE BY THE AO ON THE ALLEGED GROUND THAT THE APPELLANT COMPANY CANNOT BE TREATED AS SMA LL SCALE INDUSTRIAL UNDERTAKINGS. 2. THAT THE APPELLANT RESERVES HIS RIGHTS TO ADD, T O ALTER, OR MODIFY ANY GROUNDS OF APPEAL ON OR BEFORE HEARING OF THE SAME. 3 6. FROM THE ABOVE GROUNDS, IT IS CLEAR THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF DISALLOWANC E OF DEDUCTION UNDER SECTION 80IB OF THE I.T. ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT IN SHORT) MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE COULD NOT BE TREATED AS SMALL SCALE INDUSTRIAL UNDE RTAKINGS. 7 . DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS ISSUE IS COVERED I N FAVOUR OF THE ASSESSEE VIDE ORDER DATED 18/09/2012 IN ASSESSEES OWN CASE FOR THE A.Y. 2007-08 IN I.T.A.NO. 439/JU/2010. COPY OF THE SAID ORDER W AS FURNISHED, WHICH IS PLACED ON RECORD. 8. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. ALTHOUGH SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 9. AFTER CONSIDERING THE SUBMISSIONS OF BOTH PARTIES A ND THE MATERIAL ON RECORD, IT IS NOTICED THAT THE ISSUE UNDER CONSI DERATION HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE PRECE DING YEAR IN I.T.A. NO. 439/JU/2010 VIDE ORDER DATED 18/09/2012, WHEREIN TH E RELEVANT FINDING HAS BEEN GIVEN IN PARA 4, WHICH READS UNDER:- 4 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULL Y PERUSED THE RELEVANT MATERIAL ON RECORD. WE HAVE ALSO GONE THR OUGH THE TRIBUNAL ORDER WHEREIN THIS CLAIM OF THE ASSESSEE U/S 80IB W AS ALLOWED BY THE TRIBUNAL. THEREFORE, RESPECTFULLY FOLLOWING THE TR IBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07, WE HAVE TO ALLOW THIS CLAIM OF THE ASSESSEE U/S 80IB OF THE ACT IN T HIS YEAR ALSO. WE DO NOT FIND ANY FORCE IN THE SUBMISSIONS OF THE LD. CO UNSEL FOR THE DEPARTMENT THAT THE DEPARTMENT HAS FILED APPEAL AGA INST THIS FINDING OF THE TRIBUNAL. WHEN ASCERTAINED FROM HIM IT WAS STATED THAT NO STAY HAS BEEN GRANTED BY ANY HIGHER FORUM AGAINST T HE PROCEEDINGS OF THIS APPEAL. ACCORDINGLY WE DISMISS GROUND NO.1 RA ISED BY THE DEPARTMENT. 9. SINCE THE FACTS FOR THE YEAR UNDER CONSIDERATION AR E SIMILAR TO THE FACTS INVOLVED IN THE PRECEDING YEARS, SO BY RESPEC TFULLY FOLLOWING THE EARLIER ORDER DATED 18/09/2010 IN I.T.A.NO. 439/JU/ 2010 FOR THE A.Y. 2007-08, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SE T ASIDE AND ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF THE ASSES SEE FOR DEDUCTION UNDER SECTION 80IB OF THE ACT. 10. IN THE RESULT, MISC. APPLICATION AS WELL AS APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 22 ND NOVEMBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 22 ND NOVEMBER , 2013. 5 VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.