ACIT, JODHPUR V. M/s. J P. Mills, BALOTRA

ITA 573/JODH/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4804 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-12-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 27-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Keywords: Depreciation; Search and seizure
• Section: 153A; 80IB; 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, JODHPUR BEFORE SHRI B.P JAIN ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY JUDICIAL MEMBER ITA NO S . 573 & 574 /JODH/201 4 ASSESSMENT YEAR S : 2007 - 08 & 2009 - 10 THE ACIT VS. M/S J.P. MILLS CIRCLE - 1 E - 240, INDUSTRIAL AREA JODHPUR 3 RD PHASE BALOTRA PAN NO. AAEFJ2921K (APPELLANT) (RESPONDENT) A SSESSEE BY : SH. AMIT KOTHARI DEPARTMENT BY : SH. S.K. MADHUK DATE OF HEARING : 07/12/2016 DATE OF PRONOUNCEMENT : 08/12/2016 ORDER PER PARTHA SARATHI CHAUDHURY , JM BOTH THESE APPEALS HAVE BEEN PREFERRED BY THE REVENUE AGAINST THE SAME ORDER OF THE LD. CIT(A) DT. 08/09/2014 ON THE FOLLOWING GROUNDS OF APPEAL: GROUNDS OF APPEAL FOR A.Y. 2007 - 08 ARE AS FOLLOWS: 1. ON FACTS A ND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A), JAIPUR HAS ERRED IN ALLOWING THE CLAIM OF DEDUCTION OF RS. 3,83,363/ - U/S 80IB OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OF RS. 32,35,090/ - . 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN DELETING THE ADDITION OF RS. 15,00,000/ - MADE U/S 69 OF THE IT ACT. 4. ON THE FACTS AND IN THE C IRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 80IB ON RS. 15,00,000/ - ADDED U/S 69 OF THE I T ACT. 5. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR ADD TO ANY OF THE G ROUNDS OF APPEAL GIVEN ABOVE. GROUNDS OF APPEAL FOR A.Y. 2009 - 10 ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN DELETING THE ADDITION OF RS. 34,38,958/ - ; MADE ON ACCOUNT OF EXCESS ST OCK FOUND DURING THE COURSE OF SEARCH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ORDER OF THE LD. CIT(A)(C), JAIPUR HAS ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OF RS. 10,55,961/ - . 4. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 2. ALL THE ABOVE GRO UNDS OF APPEAL ARE TAKEN TOGETHER FOR ADJUDICATION SINCE THEY ARE LINKED TO THE CENTRAL ISSUE OF ALLOWANCE OF EXEMPTION UNDER SECTION 80IB OF ACT TO THE ASSESSEE. 3. THE BRIEF FACTS APPEARING IN THIS CASE ARE THAT THE ORIGINAL RETURN FOR A.Y. 2007 - 08 WAS F ILED ON 29/10/2007 DECLARING TOTAL INCOME AT RS. NIL FOR A.Y. 2007 - 08 AND LOSS OF RS. 2,04,939 FOR A.Y. 2009 - 10 RESPECTIVELY. SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT ON 16/07/2008 AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE GROUP. INCRI MINATING EVIDENCES WERE GATHERED DURING THE COURSE OF SEARCH OPERATIONS. NOTICE U/S 153A FOR A.Y. 2007 - 08 WAS ISSUED ON 3 14/01/2009 IN RESPONSE TO THIS RETURN OF INCOME WAS FILED ON 31/03/2009 DECLARING INCOME AT RS. NIL. 4. THE ASSESSMENT UNDER SECTION 14 3(3) R.W.S WAS COMPLETED AS PER DETAILS BELOW: ASSESSMENT YEAR DATE OF ORDER ASSESSED INCOME 2007 - 08 29/12/2010 RS. 18,82,360/ - 2009 - 10 29/12/2010 RS. 32,34,020/ - 5. THE LD. CIT(A) IN HIS ORDER HAS HELD AND OBSERVED THAT ALL THE GROUNDS OF THE ASSESSEE IN THIS CASE FOR BOTH ASSESSMENT YEARS ARE COVERED BY THE ORDER OF THE HONBLE ITAT JODHPUR BENCH IN THE CASE OF THE ASSESSEE FOR A.Y. 2008 - 09 IN ITA NO. 146/JODHPUR/2012 DT. 10/01/2014. THE COORDINATE BENCH OF ITAT , JODHPUR HAS EXAMINED ALL THE FACTS AVA ILABLE ON RECORD AND HAS ALLOWED THE CLAIM OF 80 IB OF THE ACT TO THE ASSESSEE ON ITS INCOME AND SURRENDERED INCOME AS WELL. THE RELEVANT EXCERPT OF THE ORDER IS REPRODUCED BELOW: - SINCE THE FACT OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS INVOLVED I N THE AFORESAID REFERRED TO CASE, THEREFORE, BY RESPECTFULLY FOLLOWING THE ORDER DATED 30/11/2012 IN ITA NO. 145/JU/2012 FOR THE A.Y. 2004 - 05 IN THE CASE OF OM PRAKASH KAILASH KUMAR, HUF VS. ACIT, JODHPUR, THE IMPUGNED ORDER IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW CLAIM OF THE ASSESSEE UNDER SECTION 80IB OF THE ACT ON THE SURRENDERED INCOME OF RS. 20,00,000/ - I FIND THAT ALLOWING THE CLAIM OF EXEMPTION U/S 80IB TO THE ASSESSEE IS COVERED BY THE FINDINGS OF THE HONBLE ITAT IN THE CASE OF THE APPELLANT ON SAME FACTS AND SO IT IS ALLOWED FOR THESE 2 A.YS PURSUANT TO THIS FINDING. 4 THEREFORE FOLLOWING THE AFORESAID FINDINGS OF THE COORDINATE BENCH OF ITAT , JODHPUR THE LD. CIT(A) ALLOWED THE CLAIM OF EXEMPTION U/S 80IB OF THE ACT TO THE ASS ESSEE OF RS. 3,83,363/ - . 6. THE LD. CIT(A) WITH REGARD TO THE CLAIM OF DEPRECIATION OF RS. 32,35,090/ - FOR ASSESSMENT YEAR 2007 - 08 AND OF RS. 10,55,961/ - FOR THE ASSESSMENT YEAR 2009 - 10 OBSERVED AND HELD THAT SINCE COORDINATE BENCH OF ITAT, JODHPUR IN ITS ORDER IN THE CASE OF THE ASSESSEE FOR A.Y. 2008 - 09 HAS ALREADY ALLOWED CLAIM OF EXEMPTION UNDER SECTION 80IB AFTER CONSIDER ATION OF ALL ARGUMENTS SUBMITTED AND FACTS ON RECORD IT HAS BEEN ACCEPTED IN EFFECT THAT PRODUCTION COMMENCE IN A.Y. 2004 - 05 IN WHI CH CASE THE CLAIM OF DEPRECIATION ALSO IS TO BE ALLOWED TO THE ASSESSEE SINCE IT IS A MANDATORY CLAIM THEREFORE DISALLOWANCE OF CLAIM OF DEPRECIATION OF RS. 32,35,090/ - AND RS. 10,55,961/ - FOR BOTH THE RELEVANT ASSESSMENT YEARS WERE DELETED. 8. THAT , THE L D. CIT(A) FINDINGS WITH REGARD TO ADDITION UNDER SECTION 69 OF THE ACT OF EXCESS STOCK IS THAT SINCE THE COORDINATE BENCH OF ITAT, JODHPUR IN ASSESSEES OWN CASE ON THE SAME FACT S FOR A.Y. 2008 - 09 THE MATTER BEING COVERED FOR THE ASSESSMENT YEAR 2007 - 08 WH EREIN THE SURRENDER OF RS. 14,39,958/ - ON ACCOUNT OF EXCESS STOCK IS TO BE ACCEPTED AND THE EXEMPTION UNDER SECTION 80IB OF THE ACT IS TO BE ALLOWED ON THE SURRENDERED INCOME. THE ADDITION OF RS. 34,38,958/ - ON ACCOUNT OF EXCESS STOCK IN A.Y. 2009 - 10 WAS T HEREFORE DELETED. 9. WE HAVE PERUSED THE CASE RECORDS FOR BOTH THE ASSESSMENT YEARS, THE FACTS AND CIRCUMSTANCES AND RELEVANT DOCUMENTS PLACED BEFORE US AT THE TIME 5 OF HEARING AND WE FIND THAT ALL THE GROUNDS OF APPEAL FOR ASSESSMENT YEARS 2007 - 08 & 2009 - 10 ARE COVERED BY THE DECISION OF THE COORDINATE BENCH OF ITAT, JODHPUR IN ITA NO. 146/JODHPUR/2012 DT. 10/01/2014 FOR A.Y. 2008 - 09 IN ASSESSEES OWN MATTER. 10. THAT, FOLLOWING THE AFORESAID DECISION OF THE COORDINATE BENCH OF ITAT, JODHPUR WE UPHOLD THE ORDER OF THE LD. CIT(A) AND ALL THE GROUNDS OF APPEAL ARE DISMISSED. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/ - SD/ - (B.P. JAIN) ( PARTHA SARATHI CH AUDHURY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08/12/2016 AG COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR