Prabhat Dairy Pvt. Ltd., Ahmednagar V. ITO, Ward-2, Ahmednagar

ITA 546/PUN/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9164 (ITAT-PUNE)
• Duration Of Justice: 6 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MILIND CHAHURE
• Keywords: Set aside
• Section: 201; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM . / I TA NO. 546 /PUN/20 13 / ASSESSMENT YEAR : 2009 - 10 PRABHAT DAIRY PVT. LTD. RANJANKHOL, TAL. SHRIRAMPUR, DIST. AHMEDNAGAR. PAN : AACCP8872E ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD - 2, AHMEDNAGAR. / RESPONDENT A SSESSEE BY : SHRI S. N. PURANIK REVENUE BY : SHRI MILIND CHAHURE / DATE OF HEARING : 03.10 .2019 / DATE OF PRONOUNCEMENT : 03 .10 .2019 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS) - I, PUNE DATED 07.12.2012 FOR THE ASSESSMENT YEAR 2009 - 10 AS PER THE GROUNDS OF APPEAL ON RECORD. 2 ITA NO. 546 /PUN/20 13 A.Y. 2009 - 10 2. THE ASSESSEE HAS FILED GROUNDS OF APPEAL IN THE MEMO AS WELL AS MODIFIED GROUNDS OF APPEAL. THE SOLE GRIEVANCE OF THE ASSESSEE IS THE DENIAL OF CLAIM FOR DEDUCTION U/S.80IB OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT). 3. THE CONTENTIONS OF THE REVENUE IS THAT SUCH DEDUCTION IS NOT ALLOWABLE IN THE CASE OF THE ASSESSEE SINCE IT DOES NOT QUALIFY UNDER THE DEFINITION OF SMALL SCALE INDUSTRY UNIT FOR ASSESSMENT YEAR 2009 - 10 I.E. RELEVANT YEAR AS RS.5 CRORE WAS T HE LIMIT FOR GETTING APPROVAL AS SMALL SCALE INDUSTRY UNIT . THE LD. AR OF THE ASSESSEE HAD FILED CERTIFICATE FROM DISTRICT INDUSTR IAL CENTRE WHERE IN THE ASSESSEE QUALIFIED AS A SMALL SCALE INDUSTRIAL UNDERTAKING (SSI) UNIT. 4. THE LD. AR OF THE ASSESSEE SUBMITTED THAT IN ASSESSEES OWN CASE IN ITA NO.785/PN/2008 FOR THE ASSESSMENT YEAR 2005 - 06. THE TRIBUNAL WAS FACED WITH THE SIMILAR QUESTION WHICH IS AS FOLLOWS: 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(APPEALS) ERRED IN DIRECTING THE ASS ESSING OFFICER TO GRANT DEDUCTION U/S.80IB. IN THAT YEAR, THE LIMIT FOR QUALIFYING AS SMALL SCALE INDUSTRIAL UNIT WAS RS.3 CRORE AND THE TRIBUNAL HELD THE ASSESSEE AS A QUALIFIED SMALL SCALE INDUSTRY UNIT BY OBSERVING AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AS WELL AS PAPERBOOK FILED BEFORE US. THE MOOT FOR DECISION IN THIS APPEAL RELEVANT IS WHETHER THE ASSESSEE IS S.S.I. UNIT OR NOT AND WHETHER IT IS ENGAGED IN THE MANUFACTURING ACTIVITY OF ANY ARTICLE OR T HING. FOR THIS PURPOSE, WE FIND THAT THE CLAUSE (G) OF SECTION 80IB(4) IS RELEVANT WHICH READS AS UNDER. 3 ITA NO. 546 /PUN/20 13 A.Y. 2009 - 10 (G) SMALL - SCALE INDUSTRIAL UNDERTAKING MEANS AN INDUSTRIAL UNDERTAKING WHICH IS, AS ON THE LAST DAY OF THE PREVIOUS YEAR, REGARDED AS A SMALL - SCALE INDUSTRIAL UNDERTAKING UNDER SECTION 11B OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 (65 OF 1951).] 6. FROM THE ABOVE, IT IS EVIDENT THAT THE INDUSTRIAL UNDERTAKING WHICH IS REGARDING AS A SMALL SCALE INDUSTRIAL UNDERTAKING UND ER SECTION 11 B OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 IS THE DECIDING FACTOR AND THERE IS NO CLEAR DEFINITION IN THE ACT. THEREFORE, THE CERTIFICATE ISSUED BY D.I.C PLACED AT PAGES 3 TO 11 OF THE PAPER - BOOK, IS DONE UNDER THE PROVISIONS OF SECTION 11B OF INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 THAT PLANT AND MACHINERY OF AN INDUSTRIAL UNDERTAKING MUST BE BELOW RS.3 CRORES. IN THE LIGHT OF THE SAME, WE FIND THERE IS NO REASON TO REJECT THE SAID ENDORSEMENT OF THE DI C. FURTHER R EGARDING THE ISSUE OF MANUFACTURING ACTIVITY RAISED IN GROUND 2 OF THE APPEAL, PAGES 5 AND 13 OF THE PAPER BOOK, ISSUED BY THE CONCERNED D.I.C., ARE CATEGORICAL IN STATING THAT THE ASSESSEE IS ENGAGED IN MANUFACTURING ACTIVITY OF VARIOUS ITEMS AS LISTED ON PAGE 5 AND 13 OF THE PAPERBOOK. WE FIND NO REASON TO REJECT THE SAID ENDORSEMENT. CONSIDERING THE VALIDITY OF THE SAID DOCUMENTS RELIED UPON BY THE ASSESSEE, WHICH WERE NOT APPRECIATED BY THE ASSESSING AUTHORITIES, WE ARE OF THE OPINION THAT THE ORDER O F THE CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITTED IN THAT YEAR WHEN LIMIT FOR SMALL SCALE INDUSTRIAL UNIT WAS RS.3 CRORE, THE TRIBUNAL HAS HELD THE ASSESSEE BEING ELIGIBLE FOR DED UCTION U/S.80IB OF THE ACT AND THEREFORE , FOR THIS YEAR ALSO, SIMILAR TREATMENT MAY BE GIVEN TO THE ASSESSEE. 5. PER CONTRA, THE LD. DR HAS PLACED STRONG RELIANCE ON THE ORDERS OF THE SUB - ORDINATE AUTHORITIES. 6. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. ON PERUSAL OF THE TRIBUNALS ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 - 06 (SUPRA.) SUCH CLAIM OF DEDUCTION U/S.80IB OF THE ACT WAS GRANTED TO THE ASSESSEE ON EXAMINATION THAT THE ASSESSEE HAD QUALIFIED AS SMALL SCALE INDUSTR IAL UNIT AND EVEN CE RTIFICATE ISSUED BY DISTRICT INDUSTRIAL CENTRE WAS 4 ITA NO. 546 /PUN/20 13 A.Y. 2009 - 10 FOUND TO BE RELEVANT AND CONSIDERED . THAT HOWEVER, THE LIMIT FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION IS RS.5 CRORE BUT HERE ALSO DISTRICT INDUSTRIAL CENTRE CERTIFICATE GIVEN WHICH RECOGNIZES T HE ASSESSEE AS SMALL SCALE INDUSTRIAL UNIT AND THEREFORE , IN LIGHT OF OUR FINDINGS GIVEN IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 - 06, FOR THE INTEREST OF JUSTICE, WE FIND IT DEEM AND APPRO PRIATE TO RESTORE THE ISSUE TO THE FILE OF ASSESSING OFFICER FOR EXAMINATION IN THIS BACKGROUND AND ADJUDICATE THE SAME AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(APPE ALS) AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE QUALIFICATION WHETHER THE ASSESSEE IS ELIGIBLE AS SMALL SCALE INDUSTRY UNIT TO GET DEDUCTION U/S.80IB OF THE ACT AS CLAIMED BY THEM. THIS EXAMINATION HAS TO BE DONE AS PER LAW AND IN THE BACKDROP OF THE FINDINGS GIVEN IN THE TRIBUNALS ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 - 06. THUS ALL GROUNDS IN APPEAL AND MODIFIED GROUNDS ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER AS INDICATED ABOVE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRO NOUNCED ON 3 RD DAY OF OCTOBER , 201 9 . SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 3 RD O CTOBER , 2019 . SB 5 ITA NO. 546 /PUN/20 13 A.Y. 2009 - 10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - I, PUNE. 4. THE CIT - 1, PUNE. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 6 ITA NO. 546 /PUN/20 13 A.Y. 2009 - 10 DATE 1 DRAFT DICTATED ON 03 . 10 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 03.10 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER