BLINK HOTELS PVT LTD., MUMBAI V. ASST. C.I.T. CIRCLE 8(1), MUMBAI

ITA 4520/MUM/2012

• Counselvise Citation: 452019914 RSA 2012
• Duration Of Justice: 2 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-04-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 04-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR DR
• Assessee Lawyers: VIJAY KOTHARI
• Section: 80HHC; 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.4520/MUM/2012 ASSESSMENT YEAR: 2000-01 BLINK HOTELS PVT. LTD. C/O- HOTEL ATITHI, 77A&B NEHRU ROAD, VILE PARLE, (EAST) MUMBAI-400099 / VS. DY. CIT, CIR-8(1), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( ! ' /ASSESSEE) ( # / REVENUE) P.A. NO. AAACB1656N ! ' / ASSESSEE BY SHRI VIJAY KOTHARI # / REVENUE BY SHRI JEETENDRA KUMAR-DR $ #% & ' ' / DATE OF HEARING : 24/06/2015 & ' ' / DATE OF ORDER: 14/08/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 16/04/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE AMENDED/REVISED GROUNDS OF APPEAL PERTAINS TO BLINK HOTELS PVT. LTD. ITA NO.4520/MUM/2012 2 CONFIRMING THE ORDER U/S 154 OF THE ACT ON THE BASI S OF DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF ROGINI GARMENTS AND FURTHER NOT GIVING EFFECT TO TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DAT ED 02/12/2011, 05/03/2004 AND THE ORDER OF THE TRIBUNA L DATED 05/09/2007. 2. DURING HEARING OF THIS APPEAL, SHRI VIJAY KOTHA RI, LD. COUNSEL FOR THE ASSESSEE, PLACE RELIANCE UPON T HE DECISION FROM HONBLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES PVT. LTD. VS DCIT (2011) 332 IT R 42 (BOM). ON THE OTHER HAND, THE LD. DR, SHRI JEENTEN DRA KUMAR, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSING OFFICER ISSUED NOTICE U/S 154 OF THE ACT ON THE REASONS THAT:- IN YOUR CASE, THE HONBLE ITAT HAD RESTORED THE ISSUE OF ALLOWABLE OF DEDUCTION U/S 80HHD AND 80IA TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME IN THE LIGHT OF THE SPECIAL BENCH, CHENNAI DECISION IN THE CASE OF M/S ROGNI GARMENTS. IN THE SAID CASE, SPECIAL BENCH HELD THAT RELIEF U/S 80IA SHALL BE DEDUCTED FROM PROFITS & GAINS OF BUSINESS BEFORE ALLOWING DEDUCTION U/S 80HHC/80HHD OF THE INCOME TAX ACT, 1961. IN VIEW, OF THE DIRECTION OF THE HONBL E BLINK HOTELS PVT. LTD. ITA NO.4520/MUM/2012 3 TRIBUNAL THE PROFITS & GAINS OF BUSINESS OF RS.2,07,56,996/- COMPUTED IN THE ASSESSMENT ORDER WERE FURTHER REQUIRED TO BE REDUCED BY THE DEDUCTION ADMISSIBLE U/S 80IA OF RS.16,27,098/- AGAINST RS.21,67,075/- ALLOWED BY THE DEPARTMENT. THIS HAS RESULTED INTO EXCESS DEDUCTION OF RS.5,53,888/- WITH CONSEQUENT SHORT LEVY OF TAX BY RS.8,13,247/- AND INTEREST U/S 220(2) OF RS.1,47,674/-. 2.2. HOWEVER, WE NOTE THAT THE ORDER PASSED BY THE LD. ASSESSING OFFICER U/S 154 OF THE ACT IS DATED 18/02 /2011, WHEREAS, THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES PVT. LTD. VS DCIT (2011) 332 ITR 42 (BOM.), VIDE ORDER DATED 10/01/2011, WHICH IS OF EA RLIER DATE TO THAT OF ORDER PASSED U/S 154, HELD THAT ASS ESSEE IS ENTITLED TO DEDUCTION U/S 80IA AND 80HHC FOR COMPUT ING OF DEDUCTION UNDER ANY SECTION UNDER HEADING C OF CHAP TER VI- A, PROFIT OF BUSINESS NOT TO BE REDUCED BY PROFIT O F BUSINESS ALLOWED U/S 80IA(1) OF THE ACT. THE HONBLE HIGH C OURT DULY CONSIDERED CBDT CIRCULAR NO.772 DATED 23/12/1998, T HUS, THE ORDER OF THE ASSESSING OFFICER PASSED U/S 154 O F THE ACT ON A LATER DATE IS QUASHED. THE DECISION OF THE SPE CIAL BENCH OF THE TRIBUNAL IN ROGINI GARMENTS WAS ALREADY AVAI LABLE ON RECORD. THE ASSESSING OFFICER WAS ACCEPTED TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL. EVEN OTHERWISE, THERE W AS NO MISTAKE APPARENT ON RECORD, WHICH COULD BE RECTIFIE D U/S 154 OF THE ACT. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. BLINK HOTELS PVT. LTD. ITA NO.4520/MUM/2012 4 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/06/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ( DATED : 14/08/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 $ 1' ( *+ ) / THE CIT, MUMBAI. 4. 0 0 $ 1' / CIT(A)- , MUMBAI 5. 3#4 .' , 0 *+' * 5 , $ % / DR, ITAT, MUMBAI 6. 6 7% / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI