Sh. Vijay Kumar, Jammu V. The Income-tax Officer, Jammu

ITA 465/ASR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51122 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 02-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.L. KARWA, HONBLE VICE PRESIDENT AND SH. D.K. SRIVASTAVA, ACCOUNTANT MEMBER I.T.A. NO. 465(ASR)/2011 ASSESSMENT YEAR:2002-03 SHRI VIJAY KUMAR VS. THE INCOME-TAX OFFICER, P/O M/S. HARI TALKIES, WARD 2(3), JAMMU. JAMMU. PAN:ABSPK3432B (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N. ARORA, ADV. RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING :14.12.2011 DATE OF PRONOUNCEMENT:14.12.2011 ORDER PER H.L. KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), JAMMU, DATED 27.06.2011 RELATING TO ASSESSM ENT YEAR 2002-03. 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL RELATES TO SUSTAINING THE DISALLOWANCE CLAIM OF RS.2,29,319/- UNDER SECTI ON 80-IB OF THE INCOME- TAX ACT, 1961 ( IN SHORT, THE ACT). FOR THE ASSE SSMENT YEAR 2002-03, THE 2 ASSESSEE CLAIMED DEDUCTION U/S 80IB OF THE ACT, ON THE GROUND THAT THE BUSINESS ACTIVITY OF THE ASSESSEE WAS VIDEO SOFTWAR E GENERATION. IN THE INSTANT CASE, THE EXACT NATURE OF THE ACTIVITY CARR IED ON BY THE ASSESSEE IS EDITING OF SUPPLYING THE AUDIO/BACK GROUND SOUND ET C. TO THE FILM ALREADY SHOT BY THE CUSTOMERS. IN OTHER WORDS WHAT IS ASSES SEE IS DOING MAKING CERTAIN ALTERNATIONS AND ADDITIONS (SOUND) ETC. TO THE FILM ALREADY IN EXISTENCE SHOT BY THE CUSTOMERS. THEREFORE, THE AO OPINED THA T THE ASSESSEE WAS BRINGING INTO EXISTENCE A VIDEO FILM. HIS ROLE BEIN G LIMITED TO THAT OF EDITING/SUPPLY OF SOUND ETC. THE AO FURTHER HELD TH AT THERE WAS NO ARTICLE OR THING HAVING BEEN MANUFACTURED BY THE ASSESSEE AS R EQUIRED BY THE PROVISIONS OF SECTION 80IB OF THE ACT. THE AO DISAL LOWED THE CLAIM OF THE ASSESSEE FOLLOWING THE ORDER OF ITAT,AMRITSAR BENCH (SMC), IN ASSESSEES OWN CASE IN ITA NO. 160(ASR)/2005 RELATING TO ASSES SMENT YEAR 2001-02. THE ORDER WAS PASSED BY THE TRIBUNAL ON 17.10.2005. 3. ON APPEAL, THE LD. CIT(A) FOLLOWING THE ORDER OF THE ITAT, AMRITSAR BENCH (SMC) IN ASSESSEES OWN CASE DATED 17.10.2005 DISMISSED THE APPEAL OF THE ASSESSEE. 3 4. HAVING HEARD BOTH THE PARTIES, WE FIND THAT A S IMILAR ISSUE HAS BEEN DECIDED IN ASSESSEES OWN CASE IN THE ASSESSMENT YE AR 2011-02 AGAINST THE ASSESSEE BY THE ITAT, AMRITSAR BENCH (SMC). THE OBS ERVATIONS OF THE TRIBUNAL ARE AS UNDER: 6. I HAVE HEARD BOTH THE PARTIES AND CAREFULLY CON SIDERED THE RIVAL CONTENTIONS, EXAMINED THE FACTS, EVIDENCE AND MATER IAL ON RECORD. FROM THE FACTS DISCUSSED ABOVE, IT IS OBVIOUS THAT ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE EXACT SCOPE OF ACTIVITIES UNDERTAKEN BY HIM. THE LD. CIT(A) HAS CLEARLY MENTIONED SO IN THE IMPU GNED ORDER. THE LD. AR HAS ALSO NOT BEEN ABLE TO FURNISH ANY EVIDEN CE AND MATERIAL TO SHOW THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF V IDEO SOFTWARE GENERATION. HE WAS SPECIFICALLY ASKED IF HE COULD P RODUCE ANY BILL, CONTRACT OR ANY OTHER DOCUMENT TO SHOW THAT ASSESSE E WAS ENGAGED IN THE BUSINESS OF VIDEO SOFTWARE GENERATION. SINCE THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB, THE ONUS WAS ON HIM TO ESTABLISH AND PROVE WITH EVIDENCE THAT ACTIVITIES UNDERTAKEN BY T HE ASSESSEE AMOUNTED TO MANUFACTURE OR PRODUCTION. MERE ASS ERTION OF THE ASSESSEE THAT HE WAS ENGAGED IN THE BUSINESS OF VI DEO SOFTWARE GENERATION WAS NOT ENOUGH. THE RELIANCE OF THE LD. AR ON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF CIT VS . SUPREME GRAPHICS (P) LTD. (SUPRA) IS MISPLACED BECAUSE THE ACTIVITIES OF THE ASSESSEE ARE NOT THE SAME IS IN THE CASE BEFORE BOM BAY HIGH COURT AND THE AR IS NOT ABLE TO EXPLAIN HOW THIS JUDGMENT IS APPLICABLE TO THE FACTS OF THE PRESENT CASE. NOW WHETHER, THE ASS ESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE OR PRODUCTION OF AR TICLES OR THINGS CAN BE SEEN ONLY IF THE ACTIVITIES UNDERTAKEN BY THE AS SESSEE ARE KNOWN. UNFORTUNATELY, IN THE PRESENT CASE, THE ASSESSEE HA S NOT BEEN ABLE TO EXPLAIN THE SAME. THEREFORE, IN THE LIGHT OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, I DO NOT FIND ANY JUSTIF ICATION TO INTERFERE WITH THE ORDER OF CIT(A). THE SAME IS UPHELD, AND T HE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 4 4.1. WE FULLY AGREE WITH THE VIEW TAKEN BY THE ITAT , AMRITSAR BENCH (SMC) IN ASSESSEES OWN CASE FOR THE ASSESSMENT YE AR 2001-02 . IN THAT VIEW OF THE MATTER, WE UPHOLD THE ORDER OF THE CIT( A) AND DISMISS THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14TH DECEMBER, 2011. SD/- SD/- (D.K.SRIVASTAVA) (H.L. KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED: 14TH DECEMBER, 2011 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SH. VIJAY KUMAR P/O M/S. HARI TALKIES, JAMMU. 2. THE ITO, WARD -2(3), JAMMU. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.