M/s Goldwin Technologies Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5018/DEL/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7488 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 15-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Section: 80IB; 263

Judgement Text

ITA NOS. 5012 & 5018/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 5012/DEL/2010 A.Y. : 2006-07 A CIT, CIRCLE - 12(1), NEW DELHI VS. M/S GOLDWIN TECHNOLOGIES PVT. LTD., B-47, GREATER KAILASH, PART-I, NEW DELHI (PAN/GIR NO. : AAACG0979K) AND ITA NO. 5018/DEL/2010 A.Y. : 2006-07 M/S GOLDWIN TECHNOLOGIES PVT. LTD., B-47, GREATER KAILASH, PART-I, NEW DELHI (PAN/GIR NO. : AAACG0979K) VS. ACIT, CIRCLE - 12(1), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSEESSEE BY : NONE DEPARTMENT BY : SH. SALIL MISHRA, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA : AM SHAMIM YAHYA : AM SHAMIM YAHYA : AM SHAMIM YAHYA : AM THESE CROSS APPEALS FILED BY THE REVENUE AND ASSE SSEE EMANATING OUT OF ORDER OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) DATED 23.8.2010 AND PERTAIN TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED IN ITA NO. 5012/DEL/2010 READ AS UNDER:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS ITA NOS. 5012 & 5018/DEL/2010 2 ERRONEOUS, PERVERSE, ILLEGAL AND AGAINST THE PROVIS IONS OF LAW WHICH IS LIABLE TO BE SET ASIDE. II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAWS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED I N ALLOWING THE DEDUCTION U/S. 80IB AMOUNTING TO ` 17 ,91,295/- DISALLOWED BY THE ASSESSING OFFICER IN RESPECT OF THE JAMMU UNIT. III) THE APPELLANT CRAVES TO LEAVE, TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 3. THE GROUNDS RAISED IN ITA NO. 5018/DEL/2010 READ AS UNDER:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS BAD IN LAW AND ON THE FACTS OF THE CASE. II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAWS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTI FIED IN SUSTAINING IN SUSTAINING THE REJECTION OF DEDUCTION U/S. 80-IC OF THE IT ACT AND HOLDING THAT NO MANUFACTURING ACTI VITIES WERE BEING CARRIED OUT AT MANDI UNIT. III) WITHOUT PREJUDICE TO THE ABOVE ON THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF IN COME TAX (APPEALS) IS NOT JUSTIFIED IN NOT ALLOWING DEDUC TION 30% U/S 80-IB IN RESPECT OF PROFIT FROM MANDI UNIT AS CLAIMED BY WAY OF ALTERNATIVE REMEDY. ITA NOS. 5012 & 5018/DEL/2010 3 IV) THAT THE APPELLANT CRAVE LEAVE TO TAKE ADDITIO NAL GROUND OR GROUNDS OF APPEAL OR TO ALTER OR VARY ANY OR ALL TH E GROUNDS OF APPEAL BEFORE OR AT THE TIME OF BEARING OF THE AP PEAL. 4. IN THIS CASE A SURVEY U/S 132A OF THE IT ACT WA S CONDUCED BY THE TDS WING OF MANDI CIRCLE ON THE ASSESSEES INDUSTRIAL UNIT AT MANDI, WHEREBY THE SURVEY TEAM FOUND THAT ONLY A SKELETON STAFF OF AROUND 10- 12 NON-QUALIFIED LABOUR WERE FOUND TO BE ENGAGED IN JOINTING TV SETS OF BESTAVISION MAKE. DURING THE COURSE OF SURVEY PRO CEEDINGS STATEMENT ON OATH OF SHRI SANJAY KAUSHIK, INCHARGE O F THE BRANCH OFFICE, MANDI WAS ALSO RECORDED ON OATH, WHO TESTIFI ED THAT THEY WERE GETTING THE CHASIS AND PICTURE TUBE FROM THEIR HEAD OFFICE AT LUDHIANA AND IT TOOK JUST 30-40 MINUTES TO ASSEMBLE A TV. IT WA S ALSO NOTED BY THE SURVEY TEAM THAT NO REGULAR BOOKS OF ACCOUNT BE ING MAINTAINED BY THE ASSESSEE COMPANY AT THE BRANCH OFFICE. ASSESSI NG OFFICER OBSERVED THAT THE ABOVE PROPOSITION PUTS SPANNER IN THE ASSESSEES CLAIM FOR DEDUCTION U/S 80IC ON MANDI UNIT AND CLAIM FOR DEDUCTION U/S 80IB ON ITS JAMMU UNIT AS THE LD. AUTHORISED REPRESE NTATIVE OF THE ASSESSEE COMPANY HAD ALREADY DRAWN PARALLEL BETWEEN THE ACTIVITIES BUSINESS CARRIED OUT AT MANDI AND JAMMU UNITS. ASSESS ING OFFICER FURTHER CONCLUDED THAT THE ASSESSEE COMPANY HAS BEEN SENDING ITS ALREADY MANUFACTURED TV SETS FROM LUDHIANA UNIT TO IT S MANDI AND JAMMU UNIT, WHICH ARE GIVEN THE FAADE OF CARRYING O N MANUFACTURING ACTIVITIES, WHERE IN FACT, NO REAL MANUFACTURING ACT IVITIES TAKING PLACE. THEREFORE, ASSESSING OFFICER HELD THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 80IB ON ITS JAMMU UNIT AND 80IC ON IT S MANDI UNIT WAS THEREFORE, REJECTED. ITA NOS. 5012 & 5018/DEL/2010 4 5. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ASSESSING OFFICERS ACTION , AS REGARDS MANDI UNIT IS CONCERNED. HE UPHELD THE DISALLOWANCE OF CL AIM U/S 80IC. AND AS REGARDS THE CLAIM U/S. 80IB FOR JAMMU UNIT, LD. CO MMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT FROM THE PERUSAL OF THE FACT ON RECORD, ASSESSEES JAMMU UNIT COMMENCED BUSINESS O N 6.1.2003. THE ASSESSEE HAD SUBMITTED A COPY OF ASSESSMENT ORDE R FOR A.Y. 2004- 05 FROM WHICH IT WAS SEEN THAT IN RESPECT OF THE PR OFIT FOR JAMMU MANUFACTURING UNIT DEDUCTION U/S. 80IB WAS GRANTED. THE ITAT VIDE ORDER DATED 07.8.2009 IN ITA NO. 288/DEL/2009 FOR A. Y. 2004-05 HAS HELD THAT THE ORDER OF THE ASSESSING OFFICER FOR A .Y. 2004-05 WAS NOT ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE AND THEREBY SET ASIDE THE ORDER U/S. 263 PASSED BY THE C.I.T. FROM T HE ABOVE LD. COMMISSIONER OF INCOME TAX (APPEALS) DEDUCED THAT TH E ABOVE FACTS SHOW CLEARLY THAT THE ITAT HAD UPHELD THE ASSESSME NT ORDER FOR ASSESSMENT YEAR 2004-05 WHEREIN THE CLAIM OF THE DE DUCTION U/S. 80IB WITH REGARD TO THE JAMMU UNIT WAS ALLOWED BY THE ASS ESSING OFFICER. LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED TH AT THE JAMMU UNIT WAS REGULARLY ALLOWED DEDUCTION U/S. 80IB FROM A.Y. 2003-04 TO 2005-06. LD. COMMISSIONER OF INCOME TAX (APPEALS ) FURTHER OBSERVED THAT ON PERUSAL OF THE FACTS ON RECORD SHO W THAT THE ASSESSING OFFICER IN THE YEAR UNDER APPEAL HAS NO T BROUGHT ON RECORD ANY EVIDENCES ON THE BASIS OF WHICH HAS BEEN HELD T HAT NO MANUFACTURING ACTIVITY WERE BEING CARRIED OUT AT T HE JAMMU UNIT. ACCORDINGLY, LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT HE WAS OF THE OPINION THAT JAMMU UNIT WILL BE ELIGIBLE FOR DEDUCTION U/S 80IB. ITA NOS. 5012 & 5018/DEL/2010 5 6. AGAINST THE ABOVE ORDER THE REVENUE AND ASSESSEE ARE IN CROSS APPEALS BEFORE US. 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. NONE APPEARED ON BEHALF OF THE ASSESSEE. UPON CAREFUL C ONSIDERATION, WE FIND THAT THE MATTER CAN BE DISPOSED OF BY HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORDS. WE FIND TH AT THE ASSESSEE HAS CLAIMED DEDUCTION OF ` 1135529/- U/S. 80IC IN RESPECT OF MANDI UNIT. PERUSAL OF THE FACTS ON RECORD SHOW THAT DUR ING THE SURVEY CONDUCTED BY THE TDS WING AT MANDI IT WAS FOUND THA T ONLY 10-12 NON- QUALIFIED LABOURERS WERE WORKING AT MANDI UNIT. TH E SURVEY TEAM ALSO FOUND OUT THAT NO REGULAR BOOKS OF ACCOUNT WERE B EING MAINTAINED AT THE BRANCH. THE ASSESSING OFFICER HAS CORRECTL Y BROUGHT OUT ON RECORD THAT NO MANUFACTURING ACTIVITIES WERE BEING CARRIED OUT BY THE ASSESSEE AT THE MANDI UNIT. DURING THE SURVEY PR OCEEDINGS IT WAS SEEN THAT NO MANUFACTURING ACTIVITIES WERE CARRIED OUT AT MANDI UNIT. THE STATEMENT OF SHRI S.K. KAUSHIK BRANCH INCHARGE ALSO SHOWS THAT NO MANUFACTURING ACTIVITIES WERE BEING CARRIED OUT . THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY FACT TO SHOW THAT THE MA NUFACTURING ACTIVITIES WERE BEING CARRIED OUT AT MANDI UNIT. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE AUT HORITIES BELOW REGARDING DISALLOWANCE OF DEDUCTION CLAIM U/S 80IC IN RESPECT OF THE MANDI UNIT. 7.1 AS REGARDS THE CLAIM OF DEDUCTION U/S 80IB WITH REGARD TO JAMMU UNIT, IT IS NOTED THAT JAMMU UNIT WAS REGULARLY ALL OWED DEDUCTION U/S. 80IC FROM A.Y. 2003-04 TO 2005-06. ASSESSING OFFIC ER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT NO MANUFACTURING ACTIVITIES WERE ITA NOS. 5012 & 5018/DEL/2010 6 CARRIED OUT AT JAMMU UNIT. IN A.Y. 2004-05 THE ITA T HAS ALSO HELD THAT THE ORDER OF THE ASSESSING OFFICER FOR A.Y. 2004- 05 WAS NOT ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE AND THER EBY SET ASIDE THE ORDER U/S. 263 PASSED BY THE C.I.T. IN THESE CIRC UMSTANCES, LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE A SSESSEES CLAIM FOR DEDUCTION U/S 80IB FOR JAMMU UNIT IS TO BE ALLOW ED. IN OUR CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE ALSO. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) ON THIS ISSUE. 8. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AND ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/1/2012. SD/- SD/- [I.P. [I.P. [I.P. [I.P. BANSAL] BANSAL] BANSAL] BANSAL] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE: 20/1/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES