HEENA METAL P. LTD, MUMBAI V. ITO 4(2)(3), MUMBAI

ITA 4821/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59815 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 06-02-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Section: 80HHC; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 4821, 4822 AND 4823/MUM./2010 (ASSESSMENT YEARS : 2003-04, 2005-06 & 2006-07 ) M/S. HEENA METAL PVT. LTD. 117, KIKA STREET, GULALWADI MUMBAI 400 004 PAN AAACH1030Q .. APPELLANT V/S INCOME TAX OFFICER, WARD-4(2)(3) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 .... RESPONDENT ASSESSEE BY : MR. VIJAY MEHTA REVENUE BY : MR. V.V. SHASTRI DATE OF HEARING 06.02.2012 DATE OF ORDER 10.02.2012 O R D E R PER J. SUDHAKAR REDDY, A.M. THESE APPEALS PREFERRED BY THE ASSESSEE, ARE DIREC TED AGAINST THE SEPARATE IMPUGNED ORDERS DATED 15 TH MARCH 2010, 17 TH MARCH 2010 AND 17 TH MARCH 2010, PASSED BY THE COMMISSIONER (APPEALS)-VI II, MUMBAI, FOR ASSESSMENT YEARS 2003-04, 2004-05 AND 2006-07 RESPE CTIVELY. AS THE SOLE ISSUE RAISED BY THE ASSESSEE IN ALL THE YEARS UNDER ASSESSMENT IS ALLOWABILITY OF CLAIM OF DEDUCTION UNDER SECTION 10B OF THE INCO ME TAX ACT, 1961 (FOR SHORT THE ACT ) AND ALSO ON THE ALTERNATIVE CLAIM MADE BY THE ASS ESSEE UNDER SECTION 80HHC OF THE ACT, FOR THE SAKE OF CON VENIENCE, WE HAVE HEARD THEM TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. M/S. HEENA METAL PVT. LTD. A.Y. 2003-04, 2005-06 & 2006-07 2 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE U S THAT THE COMMISSIONER (APPEALS)S FINDINGS THAT THE ASSESSEE MANUFACTURES INGOTS DURING THE YEAR, IS FACTUALLY INCORRECT. SIMILARLY, HE SUBMITTED THAT THE COMMISSIONER (APPEALS) DID NOT CONSIDER THE FACT TH AT THE UNIT COMMENCED MANUFACTURE ON 31 ST MARCH 2000 AND THAT THE APPLICABILITY OF CONDITION S CONTAINED IN SECTION 10B, REGARDING FORMATION OF TH E UNIT HAD TO BE TESTED AS ON THE DATE OF SETTING UP OF THE UNIT AND NOT THERE AFTER. THE CLAIM FOR EXEMPTION UNDER SECTION 10B, WAS MADE DURING THE AS SESSMENT YEAR 2002- 03, AND THIS WAS NOT QUESTIONED. HE POINTED OUT CER TAIN OTHER ASPECTS ON WHICH THE COMMISSIONER (APPEALS) CAME TO CERTAIN FA CTUAL INCORRECT CONCLUSIONS AS HE FAILED TO CALL FOR EXPLANATION OF THE ASSESSEE ON THESE ISSUES. LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE COMMISSIONER (APPEALS). 3. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE F IRST APPELLATE AUTHORITY HAS, VIDE NOTE SHEET ENTRY DATED 26 TH AUGUST 2009, ASKED THE ASSESSEE TO FURNISH A NUMBER OF DETAILS AS ELABORAT ED AT PARA-7 / PAGE-6 OF HIS ORDER. THE FIRST APPELLATE AUTHORITY DID NOT CO NFRONT THE ASSESSEE WITH HIS UNDERSTANDING OF THE FACTS THAT EMERGED FROM THESE DOCUMENTS AND HE PASSED ORDERS. SUCH DENIAL OF CONFRONTING THE ASSES SEE WITH THE ISSUES RESULTED IN THE FIRST APPELLATE AUTHORITY COMMITTIN G FACTUAL ERRORS. THESE FACTUAL ERRORS HAVE BEEN POINTED OUT BY THE LEARNED COUNSEL. LEARNED DEPARTMENTAL REPRESENTATIVE WAS NOT IN A POSITION T O REBUT THESE SUBMISSIONS. UNDER THESE CIRCUMSTANCES, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR DENOVO ADJUDIC ATION IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE ALL THE CONTENTIONS OF THE ASSESSEE BEFORE COMING TO THE CONCLUSION. WITH THESE OBSERVATIONS, ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY 2012 SD/- R.S. PADVEKAR JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 10 TH FEBRUARY 2012 M/S. HEENA METAL PVT. LTD. A.Y. 2003-04, 2005-06 & 2006-07 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, H BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 6.2.2012 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 7.2.2012 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 8.2.2012 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 8.2.2012 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 8.2.2012 SR.PS 6. DATE OF PRONOUNCEMENT 10.2.2012 SR.PS 7. FILE SENT TO THE BENCH CLERK 10.2.2012 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER