M/s Minilec India P.Ltd, Pune V. ACIT cir- 11{2] Pune, Pune

ITA 646/PUN/2012

• Counselvise Citation: 64624514 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 27-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANCHAL SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice; Competent authority; Revised return; Revenue expenditure; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 646 / P N/ 20 12 ASSESSMENT YEAR : 2007 - 08 M/S. MINILEC INDIA PRIVATE LIMITED, 1073/1 - 2 - 3, AT & POST - PIRANGUT, PUNE VS. A.C.I.T., CIRCLE 11(2), PUNE (APPELLANT) (RESPONDENT) PAN NO. AABCM2682E APPELLANT BY: SHRI KISHORE PHADKE RESPONDENT BY: SHRI ANCHAL SHARMA DATE OF HEARING : 23 - 07 - 2013 DATE OF PRONOUNCEMENT : 30 - 07 - 2 013 ORDER P ER R.S. PADVEKAR , JM : - THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - I, PUNE DATED 13 - 10 - 2011 FOR THE A.Y. 2007 - 08. THE ASSESSEE HAS FILED THE FOLLOWING MODIFIED/REVISED GROUND IN PLACE OF ORIGINAL GROUNDS: THE LEARNED CIT(A) - I ERRED IN LAW AND ON FACTS IN ALLOWING A DEDUCTION UNDER SECTION 35(2AB) AT 100% I.E. RS.51,82,842/ - INSTEAD OF WEIGHTED DEDUCTION OF 150% AMOUNTING TO RS.77,74,263/ - . 2. THE ISSUE IN CONTROVERSY IS THE WEIGHTED DEDUCTION C LAIMED BY THE ASSESSEE U/S. 35(2AB ) OF THE INCOME - TAX ACT WHICH WAS DENIED BY THE ASSESSING OFFICER AS WELL AS LD. CIT(A). THE ASSESSEE IS A M ANUFACTURER OF ELECTRONIC CURRENT SENSING, MICROPROCESSOR BASED ALARM ANNUNCIATES, WATER LEVELED CONTROLLERS ETC. THE ASSESSEE IS ALSO IN THE B IO - DIESEL ACTIVITY. ORIGINALLY IN THE RETURN OF INCOME THE ASSESSEE CLAIMED THE DEDUCTION U/S. 35( 1) OF THE I.T. ACT. DU RING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE CLAIMED THE WEIGHTED DEDUCTION U/S. 35(2AB ) OF THE INCOME - TAX ACT IN RESPECT OF THE EXPENDITURE PERTAINING TO THE ELECTRONIC DIVISION. THE ASSESSING OFFICER DID NOT ALLOW THE CLAIM OF THE 2 ITA NO.646/PN/2012, M/S. MINILEC INDIA PRIVATE LIMITED, PUNE ASSESSEE BY OBSERVING THAT SAID CLAIM WAS NOT MADE IN THE ORIGINAL RETURN OF INCOME AND ALSO THE ASSESSEE IS NO T FULFILLING THE CONDITIONS OF SUB - SECTIONS ( 3 ) & ( 4 ) OF SEC. 35(2AB ) . THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE LD. CIT (A) HAS OBSERVED THAT THE ADDITIONAL GROUND OR WEIGHTED DEDUCTION U/S. 35(2AB ) OF THE INCOME - TAX ACT CANNOT BE ENTERTAINED AS THE ASSESSEE HAS NOT FILED THE REVISED RETURN. THE LD. CIT(A) REFERRED TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F GOETZE (INDIA) LTD. VS. CIT, 284 ITR 323 (SC). THE LEARNED COUNSEL SUBMITS THAT SO FAR AS THE DEDUCTION IN RESPECT OF BIO - DIESEL ACTIVITY THERE IS NO CONTROVERSY AND THE ISSUE OF WEIGHTED DEDUCTION ONLY PERTAINS TO ELECTRONIC MANUFACTURING TO THE EXTENT OF REVENUE EXPENDITURE OF RS.50,39,442/ - AND CAPITAL EXPENDITURE OF RS.1,43,400/ - , TOTAL RS.51,82,842/ - . HE SUBMITS THAT THE ASSESSEE GOT THE APPROVAL W.E.F. 01 - 04 - 2006 FROM DSIR WHICH IS A COMPETENT AUTHORITY AND HENCE, THE LD. CIT(A) HAS NOT PROPERLY A PPRECIATED THE PROVISIONS OF LAW. 4. WE FIND THAT THE LD. CIT(A) HAS OBSERVED THAT THE APPROVAL WAS RECEIVED ON 01 - 06 - 2006 AND THEREFORE THE SAME CANNOT BE ALLOWED IN THE A.Y. 2007 - 08. IN OUR OPINION , AT LEAST THE LD. CIT(A) SHOULD NOT HAVE DECLINED TO EXAMINE THE CLAIM OF THE ASSESSEE U/S.3 5 (2AB) OF THE ACT A S ADMITTEDLY THE ASSESSEE CLAIMED THE SAME IN THE ASSESSMENT PROCEEDINGS. MOREOVER IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (SUPRA) THE ASSESSING OFFICER HAS NO POWER TO ENTERTAIN THE CLAIM UNLE SS THE REVISED RETURN IS FILED BUT THE LD. CIT(A) COULD HAVE EXAMINED AND DECIDED THE GROUND/ISSUE WHEN IT WAS CARRIED BEFORE HIM. WE, THEREFORE, CONSIDER IT FIT TO RESTORE SAID ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE SAME AS PER THE PROV ISION OF LAW WHETHER THE CLAIM OF THE 3 ITA NO.646/PN/2012, M/S. MINILEC INDIA PRIVATE LIMITED, PUNE WEIGHTED DEDUCTION OF THE ASSESSEE U/S. 35 (2AB) OF THE ACT IS TENABLE . THE ASSESSING OFFICER SHOULD PASS SPEAKING ORDER IF HE IS NOT IN FAVOUR OF ALLOWING THE CLAIM OF THE ASSESSEE . WE MAKE IT CLEAR THAT THE ASSESSE E HAS ALREADY BEEN GRANTED 100% OF THE CLAIM BUT EXTRA WEIGHTED DEDUCTION IS DECLINED. NEEDLESS TO SAY THAT THE ASSESSING OFFICER SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE PR INCIPLES OF NATURAL JUSTICE. 5. IN THE RESULT, THE AS SESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 30 - 07 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 30 TH JULY, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I, PUNE 4 THE CIT - I, PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE