The ACIT, Ahmedabad Circle-1, Ahmedabad V. The Arvind Mills Ltd., Ahmedabad

ITA 473/AHD/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6274 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: P M MEHTA
• Keywords: Revised return
• Section: 80HHC; 115JB

Judgement Text

ITA NO.473/AH D/2011 ASSESSMENT YEAR 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL - A BENCH, AHMEDABAD. (BEFORE SHRI MUKUL KUMAR SHRAWAT & SHRI A. K. GARODIA) I.T .A. NO. 473/AHD/2011 (ASSESSMENT YEAR : 2004 -2005) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, INSURANCE BUILDING, ASHRAM ROAD, AHMEDABAD (APPELLANT) VS. M/S. ARVIND MILLS LTD., NARODA ROAD, AHMEDABAD. (RESPONDENT) PAN: AABCA 2398D APPELLANT BY : SHRI KARTAR SINGH RESPONDENT BY : SHRI P. M. MEHTA. ( (( ( )/ )/)/ )/ ORDER PER: SHRI A. K. GARODIA. A.M.BU THIS IS A REVENUES APPEAL DIRECTED AGAINST THE OR DER OF THE LD. CIT (A)-VI, AHMEDABAD DATED 27-12-2010 FOR ASSESSMENT Y EAR 2004-05. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DIR ECTING THE AO TO RE-COMPUTE THE BOOK PROFIT U/S/ 115JB BY REDUCING E LIGIBLE PROFIT U/S. 80HHC INSTEAD OF DEDUCTIBLE PROFIT, FOLLOWING THE A PEX COURTS DECISION IN THE CASE OF AJANTA PHARMA LTD., WHILE T HE A.O. AT THE ASSESSMENT STAGE HAD RIGHTLY RELIED UPON THE HONBL E SUPREME COURTS DECISION IN THE CASE OF GOETZE (INDIA) LTD., IN WHI CH IT WAS HELD THAT THE AO CANNOT ENTERTAIN ANY CLAIM OF THE ASSESSEE O THERWISE THAN BY FILING A REVISED RETURN. ITA NO.473/AH D/2011 ASSESSMENT YEAR 2004-05 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSES SING OFFICER TO THE EXTENT MENTIONED ABOVE, SINCE THE ASSESSEE HAS FAIL ED TO DISCLOSE HIS TRUE INCOME. . 3. BRIEF FACTS ARE THAT IN PARAGRAPH 5.2 OF THE ASS ESSMENT ORDER, IT IS NOTED BY THE A.O. THAT THE ASSESSEE IN ITS LETTER DATED 2 3-5-2005 STATED THAT WHILE PASSING THE ASSESSMENT ORDER, THE WHOLE OF THE EXPO RT PROFIT SHALL BE REDUCED FROM THE BOOK PROFIT AND NOT TO RESTRICT AMOUNT OF DEDUCTION TO THE EXTENT OF 30% OF PROFIT AS PROVIDED IN SUB-SECTION (1B) OF SE CTION 80HHC OF THE I.T. ACT. THE ASSESSING OFFICER HAS REFERRED TO THE JUDG MENT OF THE HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT RE PORTED IN 284 ITR 323 WHEREIN IT WAS HELD THAT THERE ARE NO PROVISION UND ER THE INCOME TAX ACT TO MAKE AMENDMENT IN THE RETURN OF INCOME ON AN APPLIC ATION OF THE ASSESSEE WITHOUT REVISING THE RETURN OF INCOME. THE ASSESSIN G OFFICER HELD THAT THOUGH THE CLAIM OF THE ASSESSEE COMPANY IS GENUINE , IT IS NOT ENTERTAINED IN VIEW OF THIS DECISION OF HONBLE APEX COURT. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. C.I.T. (A). THE LD. CIT (A) HAS FOLLOWED ANOTHER JUDGMENT OF HONBLE APEX COURT IN THE CASE OF AJANTA PHARMA LTD., AS REPORTED IN 327 ITR 305 (SC) AND HE LD THAT SINCE THE DECISION OF HONBLE APEX COURT GIVEN IN THE CASE OF AJANTA PHARMA LTD., (SUPRA) IS A RECENT DECISION, ASSESSEE COULD NOT HA VE TAKEN THIS CLAIM EARLIER AND HENCE, HE DIRECTED THE A.O. TO RE-COMPUTE THE B OOK PROFIT IN THE LIGHT OF APEX COURT JUDGMENT RENDERED IN THE CASE OF AJATNA PHARMA LTD. NOW, THE REVENUE IS IN APPEAL BEFORE US. 4. IT IS SUBMITTED BY THE LD. D.R. OF THE REVENUE T HAT IN VIEW OF THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF GOETZ E (INDIA) LTD. (SUPRA), THE CLAIM OF THE ASSESSEE WITHOUT FILING A REVISED RETURN OF INCOME SHOULD NOT ITA NO.473/AH D/2011 ASSESSMENT YEAR 2004-05 3 BE ACCEPTED. THE LD. A.R. OF THE ASSESSEE SUPPORTE D THE ORDER OF THE LD. CIT (A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTH ORITIES BELOW AND BOTH THE JUDGMENTS OF HONBLE APEX COURT I.E. JUDGMENT R ENDERED IN THE CASE OF GOETZE (INDIA) LTD., (SUPRA) AND ALSO IN THE CASE O F AJANTA PHARMA LTD., (SUPRA). REGARDING THE FIRST JUDGMENT OF HONBLE A PEX COURT RENDERED IN THE CASE OF GOETZE (INDIA) LTD.,(SUPRA), WE FIND THAT A S PER THIS JUDGMENT, THE A.O. CANNOT ACCEPT ANY CLAIM OF THE ASSESSEE WHICH IS MADE BEFORE HIM FOR REDUCTION IN THE RETURNED INCOME WITHOUT FILING A REVISED RETURN OF INCOME. BUT EVEN AS PER THIS JUDGMENT OF HONBLE APEX COURT , THE POWER OF APPELLATE AUTHORITIES ARE NOT CURTAILED AND SUCH CL AIM OF THE ASSESSEE CAN BE ACCEPTED BY LD. CIT (A) OR BY THE TRIBUNAL, AND IF IT IS SO ACCEPTED, THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA), DOES NOT COME IN THE WAY. HENCE, WE FIND N O MERIT IN THIS CLAIM OF THE REVENUE THAT LD. CIT (A) SHOULD NOT HAVE DIRECT ED THE A.O. TO ENTERTAIN THIS CLAIM OF THE ASSESSEE. WE FEEL SO BECAUSE A.O . HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT ALTHOUGH THE CLAIM OF THE ASS ESSEE IS GENUINE BUT THE SAME IS NOT ENTERTAINED BECAUSE OF THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GOETZE (INDIA) LTD.,(SUPRA) . HENCE, THERE IS NO DISPUTE THAT THE CLAIM OF THE ASSESSEE IS GENUINE A ND IS IN ACCORDANCE WITH THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF AJANTA PHARMA LTD., (SUPRA) AND SINCE, THE JUDGMENT OF HONBLE AP EX COURT IN THE CASE OF GOETZE (INDIA) LTD., DOES NOT COME IN THE WAY OF TH E APPELLATE AUTHORITIES TO CONSIDER AND DECIDE SUCH CLAIM OF THE ASSESSEE, WE ARE OF THE CONSIDERED ITA NO.473/AH D/2011 ASSESSMENT YEAR 2004-05 4 OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE O RDER OF THE LD. CIT (A) ON THIS ISSUE. HENCE WE DECLINE TO INTERFERE IN THE OR DER OF THE LD. CIT (A). 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 30 - 06 - 2011 . SD/- SD/- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATED: 30 - 6 - 2011. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-VI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.473/AH D/2011 ASSESSMENT YEAR 2004-05 5 1.DATE OF DICTATION 22 - 06 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 23 /06 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..