Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 99416 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 5 month(s) 11 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
05-11-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Assessment Year
2004-2005
Appeal Filed On
24-05-2013
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 550/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 M/S. NEW BHARAT TUBES LTD. D-134, M.G.D. MARKET JAIPUR CUKE VS. THE ACIT CIRCLE- 5 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAACN 8125 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL, C.A. JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 15-02-2013 FOR THE ASSESSME NT YEAR 2004-05 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: - 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE AO ACTION OF REOPENING THE CASE AS TH E PROCEEDINGS U/S 148 INITIATED IS BAD IN LAW AND BAD ON FACTS THE PROCEEDINGS INITIATED U/S 148 IS ALSO BAD IN LA W IN VIEW OF ORIGINAL ASSESSMENT BEING COMPLETED U/S 143(3) A FTER DETAILED EXAMINATION OF ISSUES ON WHICH THE PROCEED INGS HAS BEEN INITIATED. ITA NO. 550/JP/2013 M/S. NAV BHARAT TUBES LTD. VS. ACIT, CIRCLE- 5, JAI PUR 2 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE ORDER PASSED BY THE ACIT,CIRCLE- 5, JAIPUR OF REDUCING THE DEDUCTION U/S 80IB BY RS. 1,72,624/- O N ACCOUNT OF NON-CONSIDERATION OF DEPB BENEFITS AS INCOME FROM INDUSTRIAL UNIT. 2.1 DURING THE COURSE OF HEARING, THE LD. AR CONTEN DS THAT ORIGINAL ASSESSMENT IN THIS CASE WAS FRAMED U/S 143(3) ON 16 -11-2006 IN WHICH ISSUE ABOUT 80IB WAS DULY CONSIDERED BY THE AO WHO DID NOT ALLOW DEDUCTION U/S 80IB QUA INTEREST ON FDR. THE ISSUE A BOUT 80IB ON DEPB PROFITS WAS ALLOWED BY THE AO. A VIEW WHICH IS SUPP ORTED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SARAF SEAS ONING UDYOG VS. ITO, 219 CTR 461 WAS HELD AS UNDER:- IN VIEW OF INSERTION OF CLAUSE (IIID) OF SECTION 28 BY THE TAXATION LAWS (AMENDMENT) ACT, 2005, RETROSPECT IVELY W.E.F. 1 ST APRIL, 1998, PROFITS FROM SALE OF DEPB LICENSES AR E PROFITS DERIVED FROM ELIGIBLE BUSINESS FOR PURPOSE OF DEDUCTION U/S 80IB. THEREAFTER THE AO ISSUED NOTICE U/S 148 OF THE ACT PROPOSING THE REOPEN THE ASSESSMENT TAKING A DIFFERENT OPINION THAT 80IB SHOULD NOT HAVE BEEN ALLOWED QUA DEPB INCOME. 2.2 IT IS CONTENDED BY THE LD. AR OF THE ASSESSEE T HAT THE REASONS FOR REOPENING THE ASSESSMENT BEING PURELY CHANGE OF OPI NION; THE REOPENING IS BAD IN LAW. RELIANCE IS PLACED IN THE CASE OF C IT VS. KELVINATOR INDIA LTD. , 320 ITR 561 (SC) WHEREIN IT HAS BEEN HELD AS UNDER:- ITA NO. 550/JP/2013 M/S. NAV BHARAT TUBES LTD. VS. ACIT, CIRCLE- 5, JAI PUR 3 AFTER 1 ST APRIL, 1989, THE AO HAS POWER TO REOPEN THE ASSESSMENT U/S 147 PROVIDED AO HAS REASON TO BE LIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND THERE IS NO TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ES CAPEMENT OF INCOME, MERE CHANGE OF OPINION CANNOT PER SE BE REASON TO BELIEVE. IT IS FURTHER CONTENDED THAT ON THE DATE OF ORIGINA L ASSESSMENT AND DATE OF ISSUANCE OF NOTICE, THE LEGAL SITUATION WAS COVERED BY THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SA RAF SEASONING UDYOG VS. ITO (SUPRA). THE HON'BLE SUPREME COURT JUDGEME NT IN THE CASE OF LIBERTY INDIA WAS PRONOUNCED IN THE YEAR 2009 I.E. AFTER THE DATE OF RECALLING THE REASONS. BESIDES IN REASONS, THERE IS NO REFERENCE OF LIBERTY INDIA VS. CIT, (317 ITR 218- SC) JUDGMENT. THE REOP ENING BEING BAD IN LAW DESERVES TO BE QUASHED. 2.3 THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AU THORITIES. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE FACTS OF THE ORIGINAL ASSE SSMENT, REASONS AND NOTICE UU148 HAVE NOT BEEN DISPUTED. THE ASSESSMENT IN QUESTION IS BAD IN LAW INASMUCH AS:- (I) THE AOS VIEW OF ALLOWING 80IB QUA DEPB AT THAT TIME WAS IN CONFORMITY WITH HON'BLE JURISDICTIONAL HIGH COURT JUDGEMENT IN THE CASE OF SARAF SEASONING UDYO G VS. ITO (SUPRA) (II) IN ORIGINAL ASSESSMENT U/S 143(3), THE ISSUE A BOUT DEPB WAS CONSIDERED AND WAS ALLOWED IN CONFORMITY W ITH ITA NO. 550/JP/2013 M/S. NAV BHARAT TUBES LTD. VS. ACIT, CIRCLE- 5, JAI PUR 4 HON'BLE JURISDICTIONAL HIGH COURT JUDGMENT IN THE C ASE OF SARAF SEASONING UDYOG VS. ITO (SUPRA) THEREFORE, THE REASONS RECORDED AMOUNTS TO CHANGE O F OPINION ON WHICH SECTION 148 CANNOT BE INVOKED IN VIEW OF THE DECISI ON OF HON'BLE APEX COURT IN THE CASE OF CIT VS. KELVINATOR INDIA (SUPR A). IN VIEW OF THESE FINDINGS, I HOLD THAT THE REASSESSMENT HAS BEEN MAD E MERE CHANGE OF OPINION WHICH IS NOT SUSTAINABLE AND THE SAME IS QU ASHED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D ORDER PRONOUNCED IN THE OPEN COURT ON 05 /11/ 2015. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 /11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S.NAV BHARAT TUBES LTD. , JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE- 5, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 550/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR
