The ITO, Ward-4(1), Ahmedabad V. M/s. Eco Tool Room Pvt. Ltd., Ahmedabad

ITA 513/AHD/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6137 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-07-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 21-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 01/07/2011 DRAFTED ON: 05/07 /2011 APPEAL(S) / CO(S) BY APPELLANTS VS. RESPONDENTS SL. NO(S). ITA NO(S) / CO NO(S) ASSESS- MENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 513/AHD/2011 2003-04 THE ITO WARD-4(1) AHMEDABAD ECO TOOL ROOM PVT.LTD. 33-34 PANCH RATNA IND ESTATE CHANGODAR TAL: SANAND DIST.AHMEDABAD PAN : AAACE 4183 B 2. 514/AHD/2011 2004-05 -DO- -DO- 3. 515/AHD/2011 2005-06 -DO- -DO- 4. CO NO.67/AHD/2011 (O/O ITA NO.513/AHD/2011) 2003-04 ASSESSEE REVENUE 5. CO NO.68/AHD/2011 (O/O ITA NO.514/AHD/2011) 2004-05 ASSESSEE REVENUE 6. CO NO.69/AHD/2011 (O/O ITA NO.515/AHD/2011) 2005-06 ASSESSEE REVENUE REVENUE BY : SHRI S.K. GUPTA, CIT-D.R. ASSESSEE BY : SHRI S.K. SADHWANI, CA. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE THREE APPEALS (BY THE REVENUE) AND THREE CR OSS OBJECTIONS (BY THE ASSESSEE) HAVE EMANATED FROM THE ORDERS OF LEARNED CIT(APPEALS)-VIII, AHMEDABAD DATED 16/12/2010. 2. FIRST, WE SHALL TAKE UP THE APPEALS FILED BY THE REVENUE AND FOR ALL THE YEARS GROUNDS ARE IDENTICALLY WORDED; REPRODUCE D FROM THE LEAD ASSESSMENT YEAR 2003-04 AS UNDER: ITA NOS.513 TO 515/AHD/2011(BY REVENUE) & CO NOS.67 TO 69/AHD/2011 (BY ASSESSEE) ITO VS. ECO TOOL ROOM PVT.LTD. AYS 2003-04 TO 2005-06 (RESPECTIVELY) - 2 - 1.1 THE LEARNED CIT(A)-VIII, AHMEDABAD HAS ERRED DIN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80IA OF THE ACT AMOUNTING TO RS.6,96, 800/- (A.Y. RS.7,05,368/- & A.Y. RS.9,86,236/-) TO THE AS SESSEE, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER . 1.2. IN DOING SO, THE LEARNED CIT(A) HAS ERRED IN LAW AN D ON FACTS IN NOT APPRECIATING THAT SINCE THE REPORT IN FORM NO.10CCB WAS NOT FILED WITH THE RETURN OF INCOME, T HE SAID DEDUCTION WAS RIGHTLY NOT ALLOWED BY THE ASSESSING OFFICER IN VIEW OF THE EXPRESS PROVISION IN THE ACT FOR FIL ING OF THE SAID REPORT WITH THE RETURN OF INCOME. 1.3. IN DOING SO, THE LEARNED CIT(A) HAS ERRED IN LAW AN D ON FACTS IN NOT APPRECIATING THAT IN CASE THE VIEW IS TAKEN THAT THE ASSESSEE CAN FILED THE REPORT IN FORM NO.10CCB ANY TIME DURING THE COURSE OF THE ASSESSMENT PROCEEDING S, IT WOULD MAKE THE PROVISIONS OF THE ACT REQUIRING THE ASSESSEE TO FILE THE SAID RETURN IN FORM NO.10CCB WITH THE R ETURN OF INCOME REDUNDANT. 3. VIDE AN ORDER PASSED U/S.143(3) R.W.S.147 OF THE I.T. ACT DATED 05/11/2009, IT WAS NOTED BY THE ASSESSING OFFICER T HAT THE ASSESSEE HAS NOT FILED AUDIT REPORT ON FORM NO.10CCB AS REQUIRED U/S.80IA(7) READ WITH RULES 18 BBB OF THE IT RULES, 1962. HIS MAIN ALLEGATION WAS THAT THE SAID AUDIT REPORT WAS NOT FILED ALONG WITH THE RETURN, THEREFORE, THE CLAIM OF DEDUCTION U/S.80IA(7) WAS DISALLOWED. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHO HAS PLACED RELIANCE ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V. GUJARAT OIL & ALLIED INDUSTRIES REPORTED AT [1993] 201 ITR 325 (GUJ.) AND THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. MAGNAM ITA NOS.513 TO 515/AHD/2011(BY REVENUE) & CO NOS.67 TO 69/AHD/2011 (BY ASSESSEE) ITO VS. ECO TOOL ROOM PVT.LTD. AYS 2003-04 TO 2005-06 (RESPECTIVELY) - 3 - EXPORT P.LTD. REPORTED AT [2003] 262 ITR 10 (CAL.) AND ALLOWED THE CLAIM AS PER THE FOLLOWING OBSERVATIONS:- 2.4. THE APPELLANT HAS STRONGLY OBJECTED THE STAND TAKEN BY THE A.O. ON THE ONE HAND HE ARGUED THAT SECTION 80IA( 7) UNDER WHICH THE REQUIRED AUDIT REPORT IS TO BE FILED IS N OT APPLICABLE TO THE APPELLANT, SINCE THE APPELLANT HAS STARTED MANU FACTURING OPERATION IN F.Y. 1995-96 AND IT IS ENTITLED FOR TH E BENEFIT U/S.80IA READ WITH SUB SECTION 8 AS PER THE PREVALENT LAW AT THAT TIME. HOWEVER, TO AVOID FURTHER LITIGATION THE APPELLANT FILED AUDIT REPORT IN FORM NO.10 CCB DURING ASSESSMENT PROCEEDINGS. T HE APPELLANT RELIED UPON THE VARIOUS JUDICIAL PRONOUNC EMENTS AS WELL AS THE CIRCULAR OF THE CBDT WHEREIN IT HAS BEEN HEL D THAT THE A.O SHOULD NOT DENY THE EXEMPTION TO THE ASSESSEE FOR L ACK OF ACCOUNTANTS REPORT IF THE REQUIRED AUDIT REPORT IS FURNISHED DURING ASSESSMENT PROCEEDINGS. IN VIEW OF THE FACTS MENTI ONED ABOVE AND PARTICULARLY WITH REFERENCE TO THE SIMILAR VIEW TAK EN BY THE GUJARAT HIGH COURT IN THE CASE OF CIT V/S. GUJARAT OIL & AL LIED INDUSTRIES 201 ITR 325, THE A.O IS DIRECTED TO ALLOW THE RELIE F OF RS.6,96,800/- U/S.80IA(7) OF THE I.T. ACT. 4. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES, WE FIND NO FORCE IN THE GROUNDS OF THE REVENUE BECAUSE THE HON'BLE COUR TS HAVE UNANIMOUSLY HELD THAT THOUGH OBTAINING OF AUDIT CER TIFICATE IS MANDATORY BUT TIME LIMIT IS DIRECTORY, HENCE THE ASSESSEE CAN NOT BE SAID TO BE IN DEFAULT IN FURNISHING THE AUDIT REPORT ON THE PRESC RIBED FORM IF THE SAME IS PLACED BEFORE THE ASSESSING OFFICER DURING THE A SSESSMENT PROCEEDINGS. RESPECTFULLY FOLLOWING THE AFORE CITE D DECISIONS, THESE GROUNDS ARE DISMISSED. ITA NOS.513 TO 515/AHD/2011(BY REVENUE) & CO NOS.67 TO 69/AHD/2011 (BY ASSESSEE) ITO VS. ECO TOOL ROOM PVT.LTD. AYS 2003-04 TO 2005-06 (RESPECTIVELY) - 4 - ASSESSEES CROSS OBJECTION NOS.67, 68 & 69/AHD/2011 FOR AYS 2003-04, 2004-05 & 2005-06 RESPECTIVELY 5. AT THE OUTSET, THE LEARNED AUTHORISED REPRESENTA TIVE MR.S.K.SADHWANI HAS EXPRESSED NOT TO PRESS THE CROS S OBJECTIONS, HENCE, DISMISSED BEING NOT PRESSED. 6. IN THE RESULT, REVENUES APPEALS AS WELL AS ASS ESSEES CROSS OBJECTIONS ARE DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 8 TH JULY, 2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 8/ 7 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VIII, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NOS.513 TO 515/AHD/2011(BY REVENUE) & CO NOS.67 TO 69/AHD/2011 (BY ASSESSEE) ITO VS. ECO TOOL ROOM PVT.LTD. AYS 2003-04 TO 2005-06 (RESPECTIVELY) - 5 - 1. DATE OF DICTATION.. 05.07.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.07.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 8.7.11. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.7.11. 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER