M/s Sarvotham Care Ltd., Hyderabad V. ACIT, Hyderabad

ITA 501/HYD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3273 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KOMAL JOKPAL
• Assessee Lawyers: C P RAMASWAMY
• Section: 80IB; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.501/HYD/2009 : ASSESSMENT YEAR 2005-0 6 M/S. SARVOTHAM CARE LTD., SECUNDERABAD. (PAN AAECS 1899 J) VS ASST. C OMMISSIONER OF INCOME-TAX, CIRCLE 3(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.P.RAMA SWAMY RESPONDENT BY : SMT. KOMAL JOKPAL O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE ARS 2005-06 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS). 2. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDE R- 1) THE ORDER OF THE LEARNED CIT(APPEALS) IS AGAINS T LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF THE CASE. 2) THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF CLAIM U/S. 80IB FOR A SUM OF RS.60, 36,305/-. 3) THE LEARNED CIT(APPEALS) FAILED TO APPRECIATE TH E FACT THAT THE CONDITIONS PRESCRIBED UNDER THE PROVISIONS OF SECTI ON 80IB ARE REQUIRED TO BE FULFILLED ONLY IN THE INITIAL ASSESS MENT YEAR AND THAT THE DEDUCTION SHOULD BE ALLOWED FOR TEN CONSEC UTIVE YEARS FROM THE INITIAL ASSESSMENT YEAR AND THEREBY ERRED IN NOT ALLOWING THE DEDUCTION BY EXAMINING THE ELIGIBILITY FOR THIS ASSESSMENT YEAR 2005-06, WHICH IS NOT THE INITIAL A SST. YEAR. 4) THE LEARNED CIT(APPEALS) FAILED TO APPRECIATE TH AT UNLIKE THE PROVISIONS OF PROVISO TO SECTION 80HHA(3) WHICH OBL IGE THE INDUSTRIAL UNDERTAKING TO BE A SMALL SCALE INDUSTRI AL UNDERTAKING IN EACH OF THE TEN PREVIOUS YEARS, SECT ION 80IB(3) DOES NOT IMPOSE SUCH A CONDITION AND CONSEQUENTLY, THERE IS NO REQUIREMENT THAT THE APPELLANT SHOULD BE A SMALL SCALE ITA NO.501/H YD/2009 M/S. SARVOTHAM CARE LTD., SECUNDERABAD. 2 INDUSTRIAL UNDERTAKING DURING THE YEARS SUCCEEDING THE INITIAL ASST. YEAR. HE OUGHT TO HAVE ALLOWED THE REDUCTION . 5) CONSEQUENTLY, THE LEARNED CIT(APPEALS) FAILED TO FOLLOW THE WELL ESTABLISHED PRINCIPLE LAID DOWN BY THE APEX CO URT THAT A BENEFICIAL PROVISION SHOULD BE CONSTRUED LIBERALLY AND IF TWO VIEWS ARE POSSIBLE THE VIEW FAVOURABLE TO THE ASSES SEE HAS TO BE FOLLOWED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FAIRL Y CONCEDED THAT THE ISSUE INVOLVED IN THE GROUNDS OF THIS APPEAL REGARD ING ALLOWABILITY OF DEDUCTION UNDER S.80IB OF THE ACT IS COVERED AGAINST THE ASSE SSEE WITH THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER YEA R, VIZ. ASSESSMENT YEAR 2003- 04, VIDE ORDER DATED 29.2.2008. THE LEARNED DEPART MENTAL REPRESENTATIVE SUPPORTED THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ISSUE REGARDING ALLOWABILITY OF DEDUCTION UNDER S.80IB OF THE ACT IS COVERED AGAINST THE ASSESSEE WITH THE DECISION OF THE TRIBUNAL IN ASSES SEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR, VIZ. 2003-04, VIDE ORDER DATED 29. 2.2008 AND ACCORDINGLY, THE ISSUE HAS TO BE DECIDED IN FAVOUR OF THE REVENUE. THE CIT(A) IN PARA 5 OF HIS ORDER HAS REFERRED TO THE DECISION OF THE JURISDICT IONAL TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 DATED 29.2.220 08 AND HAS FOLLOWED THE DECISION OF THE TRIBUNAL AND THE ORDER OF THE ASSES SING OFFICER DENYING THE DEDUCTION UNDER S.80IB WAS UPHELD. THERE BEING NO MISTAKE IN THE ORDER OF THE CIT(A) ON THIS ISSUE, WE DISMISS THE GROUNDS OF APP EAL OF THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 3-6-2011 SD/- SD/- (CHANDRA POOJARI) ( G.C. G UPTA) A CCOUNTANT MEMBER V ICE PRESIDENT DATED 03.06.2011 ITA NO.501/H YD/2009 M/S. SARVOTHAM CARE LTD., SECUNDERABAD. 3 COPY FORWARDED TO: 1. M/S. SARVOTHAM CARE LTD., (SECUNDERABAD) C/O. DR.C.P.RAMASWAMY, ADVOCATE, FLAT NO.303, GITAN JALI APTS., PLOT NO.108, SRINAGAR COLONY, HYDERABAD-500 072. 2. ASST. C OMMISSIONER OF INCOME - TAX, CIRCLE 3 (1), HYDERABAD 3. CIT (A) - IV , HYDERABAD . 4. COMMISSIONER OF INCOME - TAX - III , HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S.