CAPITAL FOODS EXPORTS PVT. LTD., MUMBAI V. I.T.O. 8(1)(2), MUMBAI

ITA 5116/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88451 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 19-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: KISHORE M RAJ ESHIRKE
• Section: 234B; 115JB; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER ITA NO.5116/MUM/2012 (A.Y. 2009-10) M/S.CAPITAL FOODS EXPORTS PVT. LTD. VILLA CAPITAL, SADHANA COMPOUND, OSHIWARA BRIDGE, S.V.ROAD, JOGESHWARI (WEST), MUMBAI 400 102 PAN:AACCC 2649A (APPELLANT ) VS. ITO 8(1)(2), MUMBAI. (RESPONDENT) APPELLANT BY : SHRI KISHORE M. RAJ ESHIRKE RESPONDENT BY : SHRI PR EMANAND J. DATE OF HEARING : 24/02/2015 DATE OF PRONOUNCEMENT : 24 /02/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-16, MUMBAI DATED 15/06/2012 FOR ASSES SMENT YEAR 2009-10. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XVI, MUMBAI (H EREINAFTER REFERRED TO AS THE CIT(A)S) HAS ERRED IN UPHOLDING THAT THE APPELLANT IS NOT ENTITLED TO EXEMPTION AS PROVIDED IN SUBSECTION(6) OF THE SE CTION 115JB OF THE INCOME TAX ACT, 1961 AND HENCE IS LIABLE TO BE PAY MINIMUM ALTERNATIVE TAX (MAT) AS BOOK PROFIT U/S. 115JB OF THE INCOME TAX A CT, 1961. ITA NO.5116/MUM/2012 (A.Y. 2009-12) 2 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A)S HAS ERRED IN UPHOLDING IN LEVYING INTEREST U/S. 234B AND U/S. 234C ON MAT LEVIED U/S. 115JB OF THE ACT. 2. AT THE OUTSET, IT WAS SUBMITTED BY LD. AR THAT T HE ISSUE RAISED BY THE ASSESSEE IS COVERED BY THE DECISION OF THE TRIBUNA L IN ASSESSEES OWN CASE FOR A.Y 2008-09. COPY OF ORDER OF THE TRIBUNAL DATED 23/5/ 2013 PASSED IN ITA NO.70/MUM/2012 IS PLACED IN THE PAPER BOOK AT PAGE 2 TO 5. THUS, IT WAS SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE SHO ULD BE ALLOWED. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. AFTER CAREFUL CONSIDERATION, WE FOUND THAT SIMILAR ISSUE WAS RAISED BY THE ASSESSEE IN RESPECT OF ASSESSMENT YEAR 2008-09 AND THE SAME WAS DECIDED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 23/05/2013. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL IS REPRODUCED BELOW: 5. AS THE FACTS AND ISSUES ARE IDENTICAL, RESPECT FULLY FOLLOWING THE DECISION OF THE TRIBUNAL, WE DIRECT THE A.O TO TREAT THE INTEREST I NCOME OF RS.3,16,275/- AS PART OF THE PROFIT FOR CALCULATING THE DEDUCTION U/S. 10A OF TH E ACT. GROUND NO.1 & 2 OF THE ASSESSEES APPEAL ARE ACCORDINGLY ALLOWED. 6. A PERUSAL OF THE DECISION IN THE CASE OF GENESY S INTERNATIONAL (SUPRA) ON IDENTICAL ISSUE, THE TRIBUNAL HAS HELD THAT THE AUTHORITIES B ELOW WAS NOT JUSTIFIED TO INCLUDE THE BOOK PROFIT IN RESPECT OF SEZ UNITS WHILE COMPUTING THE BOOK PROFIT U/S. 115JB OF THE ACT. REVERSING THE ORDERS OF THE AUTHORITIES BELOW, TH E TRIBUNAL HELD THAT INCOME RELATING TO SEZ UNITS IS EXCLUDED WHILE COMPUTING THE BOOK PROF IT U/S.115JB OF THE ACT. THE FACTS AND ISSUES ARE IDENTICAL, RESPECTFULLY FOLLOWING TH E DECISION OF THE TRIBUNAL, WE DIRECT THE AO TO ALLOW THE EXEMPTION AS PROVIDED IN SECTION 11 5JB OF THE ACT. GROUND NO.1& 2 ARE ACCORDINGLY ALLOWED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ACCORDINGLY, FOLLOWING THE AFOREMENTIONED ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN RESPECT OF A.Y. 2008-09 WE ALLOW GROUND NO .1. ITA NO.5116/MUM/2012 (A.Y. 2009-12) 3 5. SO FAR AS IT RELATES TO GROUND NO.2, NO ARGUMENT S WHATSOEVER WERE MADE. HOWEVER, LEVY OF INTEREST UNDER SECTION 234C & 234 C WILL BE CONSEQUENTIAL AND THE AO IS DIRECTED TO RECOMPUTE INTEREST AFTER GIV ING EFFECT TO GROUND NO.1 OF THIS ORDER. WE DIRECT ACCORDINGLY. 6. THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED T O BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 24/02/20 15 ! ' #$% & '() 24/02/2015 $ ' * + SD/- SD/- ( /CHANDRA POOJARI ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; '( DATED 24/02/2015 ! ! ! ! ' '' ' ,-. ,-. ,-. ,-. /.%- /.%- /.%- /.%- / COPY OF THE ORDER FORWARDED TO : 1. 01 / THE APPELLANT 2. ,201 / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. .4* ,-( , , / DR, ITAT, MUMBAI 6. *5 6 / GUARD FILE. !( !( !( !( / BY ORDER, 2.- ,- //TRUE COPY// 7 77 7 / 8 8 8 8 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ( . ./ VM , SR. PS