DCIT 2(1), MUMBAI V. BHARAT PETROLEUM CORPORAIN LTD, MUMBAI

ITA 4798/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8144 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER KAUR
• Assessee Lawyers: J D MISTRI
• Section: 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI , !' # # # # , , !' % BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./I .T.A. NO. 4798/MUM/2013 ( & & & & / ASSESSMENT YEAR : 2009-10 THE DCI9T 2(1), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. BHARAT PETROLEUM CORPORATION LTD., BHARAT BHAVAN, CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI-400 001 '' ./ () ./ PAN/GIR NO. : AAACB 2902M ( '* / APPELLANT ) .. ( +,'* / RESPONDENT ) '* - / APPELLANT BY: SHRI PARMINDER KAUR +,'* . - / RESPONDENT BY: SHRI J.D. MISTRI . /0 / DATE OF HEARING :13.10.2014 12& . /0 / DATE OF PRONOUNCEMENT :13.10.2014 !3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-4, MUMBAI DT.25.4.2013 PERTAINING TO A.Y.200 9-10. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S. 80IB IN RESPECT OF LPG PLANTS. IT WOULD BE RELEVANT TO MENTION HERE THAT ONE OF THE GROUNDS OF THE REVENUE WHICH READS AS UNDER: ITA NO. 4798/M/2013 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E ASSESSEE COMPANY IS ELIGIBLE FOR DEDUCTION U/S. 80IB OF THE I.T. ACT. IN RESPECT OF ITS LPG BOTTLING PLANTS BY RELYING ON THE DECISION IN THE CASE OF HINDUSTAN PETROLEUM CORPN. LTD. IN ITXA NO. 2131 OF 2012 ORDER DT. 7.3.2013, IGNORING THAT THE DEPARTMENT HAS NOT ACCEPTED THE SAID DECISION PROPO SAL FOR FILING SLP HAS BEEN SENT IN THIS CASE AND ALSO IN A SSESSEES OWN CASE IN ITXA 612 & 613 OF 2001 THE DECISION OF HIGH COURT HAS NOT BEEN ACCEPTED AND PROPOSAL FOR FILING SLP HAS BEEN SENT 3. AT THE OUTSET, SUCH GROUND IS NOT AT ALL ACCEPTA BLE. THE REVENUE MUST AVOID TAKING SUCH GROUND WHEN THE ISSUE HAS BE EN DECIDED IN FAVOUR OF THE ASSESSEE BY THE HONBLE JURISDICTIONAL HIGH COURT. THE REVENUE SHOULD NOT FILE APPEAL ON THE PRETEXT THAT THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAS NOT BEEN ACCEPTED BY THE REVENUE. WE EXPECT THE REVENUE AUTHORITIES TO AVOID SUCH FRIVOL OUS GROUNDS OF APPEAL. 4. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE JUDICIAL DECISIONS BROUGHT TO OUR NOTICE. WE F IND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS 1994-95 AND 1995-96 H AS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE VIDE ITA NOS. 5189 & 5190/M/2011. THE TRIBUNAL FOLLOWED THE ORDERS IN A.YRS 1998-99 AND 1 996-97. THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN ITA NO. 612 OF 2001 HAD THE OCCASION TO CONSIDER THE FOLLOWING QUESTION: WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE TRIBUNAL ERRED IN LAW IN HOLDING THAT APPELLANT WAS NOT ENTITLED TO DEDUCTION U/SS 80HH AND 80-UI/80IA OF T HE INCOME TAX ACT, 1961 IN RESPECT OF LPG BOTTLING PLA NTS? THE HONBLE HIGH COURT FOLLOWED ITS OWN DECISION IN THE CASE OF M/S. HINDUSTAN PETROLEUM CORPN. LTD VS MAHARASHTRA STATE ELECTRICITY ITA NO. 4798/M/2013 3 DISTRIBUTION CO. LTD AND ORS AND THE DECISION OF HO NBLE GUJARAT HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPN. LTD. V S STATE OF GUJARAT & ORS. AS THE MATTER IS WELL SETTLED IN FAVOUR OF TH E ASSESSEE BY THE DECISION OF THE TRIBUNAL AND THE HONBLE HIGH COURTS, APPEAL FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH OCTOBER, 2014 SD/- SD/- (VIVEK VARMA ) (N.K. BILLAIYA) !' / JUDICIAL MEMBER !' / ACCOUNTANT MEMBER MUMBAI; 4! DATED : 13 TH OCTOBER, 2014 . . ./ RJ , SR. PS !3 !3 !3 !3 . .. . +/ +/ +/ +/ 5&/ 5&/ 5&/ 5&/ / COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 78 +/ , , / DR, ITAT, MUMBAI 6. 89 : / GUARD FILE. !3 !3 !3 !3 / BY ORDER, ,/ +/ //TRUE COPY// ; ;; ; / < < < < ( ( ( ( (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI