ACIT 11(1), MUMBAI V. A K FILMS P.LTD, MUMBAI

ITA 5598/MUM/2012

• Counselvise Citation: 559819914 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ISHA SEKHRI
• Assessee Lawyers: SU RENDRA KUMAR
• Section: 143(3); 80IB

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A BENCH. . .. . . .. . , ,, , / !'# !'# !'# !'# , ' ' ' ' BEFORE S/SH. B.R. MITTAL, JUDICIAL MEMBER & RAJENDR A, ACCOUNTANT MEMBER /. ITA NO.5598/MUM/2012, $ $ $ $ % % % % / ASSESSMENT YEAR-2008-09 ACIT 11(1) R.NO. 439, AAYAKAR BHAVAN, M.K.MARG, MUMBAI-400020 VS A.K. FILMS PVT. LTD. C-101 PURVI APARTMENTS, SUNDER VAN COMPLEX, OFF LOKHANDWALA ROAD, ANDHERI (W) MUMBAI- 400058 PAN: AACCA4742Q ( &' / APPELLANT) ( ()&' / RESPONDENT) $*+ $*+ $*+ $*+ , , , , ' '' ' / APPELLANT BY : SHRI SURENDRA KUMAR ! - , ' / REVENUE BY : MS. ISHA SEKHRI $ $ $ $ - -- - +. +. +. +. / DATE OF HEARING : 30-10-2013 /0% - +. / DATE OF PRONOUNCEMENT : 01-11-2013 $ $ $ $ , 1961 - -- - 254 )1( ' '' ' +1+ +1+ +1+ +1+ '2 '2 '2 '2 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM: CHALLENGING THE ORDER DATED 28.06.2012 OF CIT(A)-3, MUMBAI,ASSESSING OFFICER(AO) HAS FILED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) MUMBAI HAS ERRED IN HOLDING THAT THE ASSESSEE-COMPANY IS ELIGIBLE FOR D EDUCTION U/S.80IB OF THE INCOME TAX ACT, INSPITE OF THE FINDINGS OF THE A.O. THAT OLD PLANT AND MACHINE RY WAS USED. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. ASSESSEE-COMPANY FILED HIS RETURN OF INCOME ON 27.0 9.2008 DECLARING TOTAL INCOME OF RS. 1.77 CRORES.LLATER ON ASSESSEE REVISED ITS RETURN ON 21. 01.2010 DECLARING INCOME AT RS.1.61 CRORES. AO FINALISED THE ASSESSMENT ON 27.12.2010, U/S 143(3) OF THE ACT,DETERMINING THE TOTAL INCOME AT RS. 2.31 CRORES.DURING THE ASSESSMENT PROCEEDINGS AO FO UND THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB AMOUNTING TO RS.69.33 LACS. VIDE HIS NOTE-SHEE T ENTRY DATED 24.11.2010 AND 07.12.2010, AO ASKED THE ASSESSEE AS TO WHY DEDUCTION U/S 80IB OF THE ACT SHOULD NOT BE DISALLOWED. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,A O HELD THAT ASSESSEE-COMPANY WAS AN OLD ENTITY HAVING BEEN EXISTENCE SINCE AY 1999-2000,THAT THE A SSESSEE HAD CLAIMED DEDUCTION U/S 80IB DURING THE AY 2003-04,THAT IT HAD NOT STARTED ANY N EW UNDERTAKING, THAT THE BUSINESS OF THE ASSESSEE-COMPANY CONTINUED TO BE SAME SINCE INCEPTI ON,THAT THE ASSESSEE IS NOT MANUFACTURING OR AN INDUSTRIAL UNDERTAKING AS REQUIRED BY SECTION 80IB( 2) OF THE ACT,THAT IT HAD NOT PRODUCED ANY EXCISABLE COMMODITIES,THAT THE FIXED ASSETS OF THE ASSESSEE HAD CONTINUED TO BE THE SAME OVER THE YEARS.FINALLY, HE HELD THAT ASSESSEE WAS NOT ENTITL ED TO CLAIM DEDUCTION U/S 80IB OF THE ACT. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE TRIBUNAL (FAA).AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER , FAA HELD THAT ISSUE BEFORE HIM WAS COVERED 2 ITA NO. 5598/MUM/2012 A.K. FILMS PVT. LTD. IN FAVOUR BY THE DECISION GIVEN BY THE ITAT IN ASSE SSEES OWN CASE FOR THE AY 2004-05 AND 2005- 06(ITA NO.1857/MUM/2009-DATED22.10.2010),THAT WHILE DECIDING THE APPEAL TRIBUNAL HAD RELIED UPON THE JUDGMENT DELIVERED BY THE HONBLE BOMBAY H IGH COURT IN THE CASE OF DADA KONDKE, THAT THE HONBLE HIGH COURT HAD HELD THAT ASSESSEE WAS A N INDUSTRIAL UNDERTAKING ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT.AS REGARDS THE OTHER CONDITION THAT THE ASSESSEE SHOULD NOT USING THE OLD MACHINERY,ITAT HAD OBSERVED THAT AS PER THE CLAIM M ADE BY THE ASSESSEE IT HAD PURCHASED NEW MACHINERY,THAT THE SAME WAS USED FOR HINDI SERIALS DURING THE PERIOD, THAT THERE WAS NO TRANSFER OF OLD MACHINERY.HE ALLOWED THE APPEAL FILED BY THE AS SESSEE AND DIRECTED THE AO TO MAKE SOME VERIFICATION. 4 .BEFORE US,DEPARTMENTAL REPRESENTATIVE(DR)SUPPORTED THE ORDER OF THE AO. AUTHORISED REPRESE- NTATIVE(AR) SUBMITTED THAT SIMILAR ISSUE HAVE BEEN DECIDED BY THE TRIBUNAL, IN EARLIER YEARS IN FAVOUR OF THE ASSESSEE,THAT ACTIVITIES CARRIED OUT BY THE ASSESSEE WERE ELIGIBLE FOR DEDUCTION U/S 80I B OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT SIMILAR ISSUE HAD ARISEN IN THE EARLIER YEARS IN ASSESSEES OWN C ASE. VIDE ITS ORDER DATED 22.10.2010(SUPRA) TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASS ESSEE.FOLLOWING THE SAME, WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO AND UPHOL D THE ORDER OF THE FAA. AS A RESULT,APPEAL F ILED BY THE AO STANDS DISMISSED. * +3 $*+ . . . . 4 5 - 1 $!6 - !+ 78 . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST NOVEMBER,2013 . '2 - /0% ' 9 :$ 1 $ $$ $ OA OAOA OA , 2013 0 - 1 ; SD/- SD/- ( . < < < < . . B.R.MITTAL) ( !'# !'# !'# !'# / RAJENDRA) / JUDICIAL MEMBER ' ' ' ' /ACCOUNTANT MEMBER / MUMBAI, :$ /DATE: 1 ST NOVEMBER ,2013 SK '2 '2 '2 '2 - -- - ( (( (+= += += += >'=%+ >'=%+ >'=%+ >'=%+ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / &' 2. RESPONDENT / ()&' 3. THE CONCERNED CIT (A) / ? @ , 4. THE CONCERNED CIT / ? @ 5. DR A BENCH, ITAT, MUMBAI / =A1 (+$ , ,, , , . . . 6. GUARD FILE/ 1 B )=+ )=+ )=+ )=+ (+ (+(+ (+ //TRUE COPY// '2$ / BY ORDER, C / 7 ! DY./ASST. REGISTRAR , /ITAT, MUMBAI