The ACIT, Vapi Circle, Vapi V. M/s. Micro Inks Ltd., Vapi

ITA 697/AHD/2009

• Counselvise Citation: 69720514 RSA 2009
• Duration Of Justice: 3 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-04-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D P GUPTA
• Assessee Lawyers: M K PATEL
• Keywords: Reopening of assessment
• Section: 143(3); 80HHC; 80IB; 80IA; 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI D.K. TYAGI, HONBLE JUDICIAL MEMBER AND SHRI A.K.GARODIA, HONBLE ACCOUNTANT MEMBER ITA NO.697 & 698/AHD/2009 ASSESSMENT YEARS:2000-01 & 2001-02 ASSTT. COMMISSIONER OF INCOME-TAX VAPI CIRCLE, VAPI V/S. MICRO INKS LTD., BILAKHIA HOUSE, MUKTANAND MARG, CHALA, VAPI PAN NO.AADCS4420J (APPELLANT) .. (RESPONDENT) /BY ASSESSEE SHRI M.K. PATEL, AR /BY REVENUE SHRI D.P.GUPTA, CIT-DR /DATE OF HEARING 24-04-2012 /DATE OF PRONOUNCEMENT 27-04-2012 O R D E R PER D.K. TYAGI, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE REVENUE AGAINST THE SEPAR ATE ORDERS OF LD. COMMISSIONER OF INCOME-TAX(APPEALS)-VALSAD OF EVEN DATED 15-12-2008 FOR THE ASSESSMENT YEARS 2000-01 & 2001-02. SINCE IN BO TH THE APPEALS ISSUE INVOLVED IS SAME WE ARE DECIDING THESE APPEALS BY P ASSING A CONSOLIDATED ORDER BY TAKING THE FACTS FOR ASSESSMENT YEAR 2000- 01. GROUND NO.1 IN BOTH THE APPEALS READ AS UNDER:- 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ANNULLING THE ASSESSMEN T MADE U/S.143(3) R.W. SECTION 147 OF THE ACT DATED 27.12.2007 1.1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN GRANTING RELIEF TO ASSE SSEE WITHOUT CONSIDERING THE FACTS BROUGHT IN BY THE ASSESSING O FFICER AND DECISIONS RELIED ON IN SUPPORT OF RE-OPENING THE ASSESSMENT I N ITS ENTIRETY. ITA NO.697-98/AHD/2009 A.YS.00 -01 & 01-02 ACIT VAPI CIR. V. MICRO INKS LTD. PAGE 2 2. THE BRIEF FACTS ARE THAT ASSESSEE-COMPANY FILED ITS RETURN OF INCOME DECLARING INCOME OF RS.12,54,39,270/- AND SAME WAS PROCESSED U/S.143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT). THE ASSESSMENT U/S. 143(3) WAS COMPLETED DETERMINING TH E TOTAL INCOME AT RS.1,31,878,482/- AFTER GRANTING DEDUCTION U/S 80HH C OF RS.36,84,362/- AND RS.7,08,76,800/-. SUBSEQUENTLY ON PERUSAL OF THE CO MPUTATION OF TOTAL INCOME AND ANNEXED THERETO THE ASSESSING OFFICER FOUND THA T ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB AND 80HHC OF THE ACT SIMULTANEOU SLY ON THE GROSS TOTAL INCOME. THE PROVISIONS OF U/S 80IA(9) R.W.S 80IB(13 ) OF THE ACT PROVIDE THAT WHERE ANY AMOUNT OF PROFIT AND GAINS FOR AN UNDERTA KING IS CLAIMED AND ALLOWED UNDER THIS SECTION FOR ANY ASSESSMENT ORDER DEDUCTION TO THE EXTENT OF SUCH PROFIT AND GAINS SHALL NOT BE ALLOWED UNDER AN Y PROVISIONS OF THIS CHAPTER UNDER THE HEADING C-DEDUCTIONS IN RESPECT OF CERTAIN INCOME . ACCORDINGLY, DEDUCTION U/S. 80IB AND 80HHC SHOULD B E GRANTED TO THE ASSESSEE AS PER THE SAID PROVISIONS OF U/S 80IA(9) R.W.S 80IB(13) OF THE ACT. BASED ON THESE FACTS CASE WAS REOPENED BY ASSESSING OFFICER U/S 147 AFTER RECORDING THE REASONS FOR DOING SO. ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 DETERMINING TOTAL INCOME AT RS.14,71,87. 080/-. 3. BEFORE LD. CIT(A) THE ASSESSEE-COMPANY CHALLENGE D THE ASSESSING OFFICERS ACTION IN REOPENING ASSESSMENT AFTER EXPI RY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE ASSESSEE-C OMPANYS WRITTEN SUBMISSIONS WERE SENT BY LD. CIT(A) TO THE AO FOR H IS COMMENTS AND AFTER OBTAINING THE COMMENTS OF THE AO AND ASSESSEES COM MENTS THERE UPON THE LD. CIT(A) OBSERVED THAT ASSESSMENT HAS BEEN REOPEN ED IN THIS CASE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT A SSESSMENT YEAR. TAKING INTO CONSIDERATION THE PROVISO TO SECTION 147 OF THE ACT . LD. CIT(A) WAS OF THE VIEW THAT IN THE INSTANT CASE, THERE WAS NO FAILURE ON T HE PART OF THE ASSESSEE- COMPANY TO MAKE RETURN UNDER PROVISIONS OF INCOME-T AX ACT AND FURTHER ALL THE MATERIAL FACTS RELATING TO DEDUCTION CLAIMED BY HIM WERE FULLY AND TRULY DISCLOSED. IT WAS FURTHER HELD BY LD. CIT(A) THAT S INCE THE DEDUCTION U/S. 80IA ITA NO.697-98/AHD/2009 A.YS.00 -01 & 01-02 ACIT VAPI CIR. V. MICRO INKS LTD. PAGE 3 AND 80HHC OF THE ACT CLAIMED BY THE ASSESSEE-COMPAN Y WERE DULY DELIBERATELY UPON AND ALLOWED IN THE ORIGINAL ASSES SMENT ORDER REOPENING U/S.147 CANNOT BE DONE IN VIEW OF THE PROVISO TO SE CTION AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT ORDER . HE FURTHER HELD THAT REOPENING OF ASSESSMENT IN THIS CASE WAS BAD IN LAW AND THE RE-ASSESSMENT PROCEEDINGS WERE NOT IN CONFORMITY WITH THE PROVISI ONS OF SECTION 147 OF THE ACT. 4. AGGRIEVED BY THIS ORDER OF LD. CIT(A) NOW REVENU E IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ISSUE IS NOW COVERED BY THE DECISION OF THIS CO-ORDINATE BENCH IN THE CASE OF ACIT V. BILAG INDUSTRIES PVT. LTD. IN ITA NO.700-701/AHD/2009 ORDER DATED 29-07-2011, WHEREIN ON IDENTICAL FACTS, THE ISSUE WAS DECIDED IN FAVOUR OF ASSESSEE. 6. ON THE CONTRARY, LD. CIT-DR RELIED UPON THE ORDE RS OF AUTHORITIES BELOW. 7. AFTER HEARING BOTH THE SIDES AND PERUSING THE RE CORD WE FIND THAT ISSUE IN HAND IS COVERED BY THE DECISION OF THIS CO-ORDIN ATE BENCH IN THE CASE OF BILAG INDUSTRIES PVT. LTD. (SUPRA), WHEREIN ON IDENTICAL FACTS THE TRIBUNAL H AS HELD AS UNDER:- 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSMENT HAS BEEN REOPENED IN THIS CASE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IT IS ALSO NOT IN DISPUTE THAT MATERIAL FACT REGARDING DEDUCTION U/S. 80IA AND 80HHC WERE FULLY AND TRULY DISCLOSED BY THE ASSESSEE ALONG WITH RETU RN OF INCOME. THE PROVISO TO SECTION 147 OF THE ACT RELATING TO INCOME ESCAPI NG ASSESSMENT READS AS UNDER:- PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT ORDER, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER T HE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT ORDER, UNLE SS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT ORDER BY REASON OF THE FAILURE ON THE PART OF THE ASSESSE E TO MAKE A RETURN ITA NO.697-98/AHD/2009 A.YS.00 -01 & 01-02 ACIT VAPI CIR. V. MICRO INKS LTD. PAGE 4 UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR TH AT ASSESSMENT ORDER. IN THE INSTANT CASE WE FIND THAT THERE IS NO FAILUR E ON THE PART OF THE ASSESSEE- COMPANY TO MAKE A RETURN UNDER THE PROVISIONS OF IN COME-TAX ACT. THE ASSESSEE HAS FILED RETURN OF INCOME U/S.139 OF THE ACT IN WHICH ALL MATERIAL FACTS RELATING TO DEDUCTION CLAIMED BY THE ASSESSEE -COMPANY WERE FULLY AND TRULY DISCLOSED. IT IS CLEAR FROM THE ORIGINAL ASSE SSMENT ORDER PASSED BY ASSESSING OFFICER U/S.143(3) OF THE ACT THAT DEDUCT ION U/S.80IB AND 80HHC OF THE ACT CLAIMED BY THE ASSESSEE-COMPANY WAS DULY DE LIBERATED UPON BY AO AND WAS ALLOWED. IN THE LIGHT OF THESE UNDISPUTED F ACTS OF THIS CASE, WE ARE OF THE CONSIDERED OPINION THAT REOPENING U/S.147 CANNO T BE DONE IN VIEW OF THE PROVISO TO THE SECTION AFTER THE EXPIRY OF FOUR YEA RS FROM THE END OF RELEVANT ASSESSMENT YEAR AS THERE IS NO OMISSION OR FAILURE ON THE PART OF ASSESSEE- COMPANY IN PUTTING FOURTH ITS CLAIM IN ITS ENTERITY BEFORE THE AO. THIS VIEW OF OURS GET SUPPORT FROM THE CASE LAWS OF THE JURISDIC TIONAL HIGH COURT RELIED BY THE ASSESSEE. THEREFORE THE ACTION OF THE AO IN REO PENING THE ASSESSMENT OF THE ASSESSEE-COMPANY IS NOT SUSTAINABLE IN LAW AND LD. CIT(APPEALS) HAS RIGHTLY ANNULLED THE RE-ASSESSMENT PROCEEDINGS CARR IED OUT BY THE ASSESSING OFFICER. THE ORDERS PASSED BY LD. CIT(APPEALS) FOR BOTH THE YEARS ARE HEREBY UPHELD. RESPECTFULLY FOLLOWING THE ABOVE, THE ORDERS PASSED BY LD. CIT(A) FOR BOTH THE YEARS ARE HEREBY UPHELD. THESE COMMON GROUNDS OF BO TH THE REVENUES APPEALS ARE DISMISSED. 8. THE OTHER GROUNDS RAISED BY THE REVENUE IN THE A PPEALS DO NOT ARISE OUT OF LD. CIT(A)S ORDER AS HE HAS NOT ADJUDICATED THESE GROUNDS SINCE HE HAD ALREADY ANNULLED THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER. HENCE, DISMISSED ACCORDINGLY. 9. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (D.K. TYAGI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP ITA NO.697-98/AHD/2009 A.YS.00 -01 & 01-02 ACIT VAPI CIR. V. MICRO INKS LTD. 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