ADDL CIT RG 1(3), MUMBAI V. GIVAUDAN FLAVOURS (I) P.LTD, MUMBAI

ITA 702/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100920 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 18-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B D NAIK
• Assessee Lawyers: ARPIT AGRAWAL; DHARMESH BAFNA
• Keywords: Scheme of amalgamation
• Section: 143(3); 80IB

Judgement Text

M/S GIVAUDAN FLAVOURS (I) PVT LTD . ITA NO. 702 /MUM/201 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. : 7 02 /MUM/20 1 3 ( ASSESSMENT YEAR: 200 8 - 0 9 ) ASST./DY. COMM ISSIONER OF INCOME TAX 1 ( 3 ) , ROOM NO. 5 40 , 5 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 020 VS M/S GIVAUDAN FLAVOURS ( I ) PVT LTD , SURAKSHA, 170 JAMSHETJI TATA ROAD, CHURCHGATE, MUMBAI - 400 020 .: PAN: AAAC L 1 01 3 D (APPELLAN T) (RESPONDENT) APPELLANT BY : SHRI B D NAIK RESPONDENT BY : SHRI DHARMESH BAFNA & SHRI ARPIT AGRAWAL /DATE OF HEARING : 3 1 - 08 - 201 5 / DATE OF PRONOUNCEMENT : 04 - 0 9 - 201 5 ORDER , . . : PER AMIT SHUKLA, J M : THE ABOVE CAPTIONED APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 26 . 11 .201 2 , PASSED BY CIT(A) - 1 2 MUMBAI , FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) FOR THE ASSESSMENT YEAR 200 8 - 0 9 ON FOLLOWING GROUNDS: 1 . WHETHER O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS RIGHT IN ALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S 80 - IB OF THE INCOME - TAX ACT, 1961. 2 . WHETHER ON THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOW ING THE D EDUC TION U/S 80 - IB BY RELYING ON THE DECISIONS OF ITO VS HINDUSTAN PETROLEUM LTD. [16 ITD 574] CIT VS TYRESOLES CONCESSIONARIES [213 ITR 660] [BOM] WHEN THEY ARE REGARDING THE AMALGAMATED COMPANY IN THE SCHEME OF AMALGAMATION UNDER SEC. 391 TO 394 OF THE COMPANY ACT, WHEREAS IN THE PRESENT CASE, THE M/S GIVAUDAN FLAVOURS (I) PVT LTD . ITA NO. 702 /MUM/201 3 2 ASSESSEE HAS PURCHASED ASSETS FROM AN EXISTING COMPANY? 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSES S EE SUBMITTED THAT THE ISSUE OF 80 IB HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN THE ASSESSEES OWN CASE RIGHT FROM ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2006 - 07 , THEREFORE, FOLLOWING THE SAME, DEDUCTION SHOULD BE CONTINUED TO BE ALLOWED IN THIS YEAR. 3. EVEN LD. DR ACCEPTED THAT TH E ISSUE OF CLAIM OF 80IB HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN THE EARLIER YEARS BY THE TRIBUNAL. 4. BRIEF FACTS ARE THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB AT RS. 2,40,49,167/ - IN RESPECT OF THE FOLLOWING UNITS: SR. NO. UNIT YEAR OF ELIGIBILITY AMOUNT ELIGIBLE 1 NEWDENTAL 9 TH YEAR - 1,91,97,174 2 SAVOURY 9 TH YEAR 48,51,993 TOTAL 2,40,49,167 THE ASSESSING OFFICER NOTED THAT THE ISSUE O F DEDUCTION U/S 80IB HA D AR ISEN IN THE EARLIER ASSESSMENT YEARS , WHEREIN IT WAS H ELD THAT UNITS ON WHICH DEDUCTION U/S 80 - IB HAVE BEEN CLAIMED HAD ACTUALLY BEEN TRANSFERRED FROM HINDUSTAN UNILIVER LTD. ACCORDINGLY, IT WAS HELD THAT , SINCE ASSESSEE COMPANY HAS BEEN FORMED AFTER PURCHASING OF PLANT AND MACHINERY ALONG WITH THE PREMISES A ND OTHER TWO OTHER ASSETS FROM THE EARLIER COMPANY, THEREFORE , IT IS A VIOLATION OF SECTION 80IB AS THE NEW ENTITY IS FORMED AFTER THE TRANSFER OF ASSETS ALREADY IN USE BY ANOTHER COMPANY. 5 . THE LD. CIT(A) FOLLOWING THE TRIBUNAL ORDER FOR THE EARLIER YEA RS HAS ALLOWED THE CLAIM AS PER THE DISCUSSION APPEARING AT PAGES 5 TO 9 OF THE APPELLATE ORDER, WHEREIN, RELEVANT FINDING OF THE TRIBUNAL HAVE BEEN REPRODUCED. THE TRIBUNAL IN THE EARLIER YEARS H AS GIVEN CATEGORICAL FINDING OF FACT AND THAT ASSESSEE HAD A CQUIRED UNITS FROM HINDUSTAN UNIL E VER LTD. AS A GOING CONCERN, VIDE M/S GIVAUDAN FLAVOURS (I) PVT LTD . ITA NO. 702 /MUM/201 3 3 AGREEMENT DATED 29.06.2001 AND THERE IS NO SPLITTING UP OR RE - COMPUTATION AND HAD ALSO CLAIM ED DEDUCTION U/S 80IB DURING THAT YEAR , O N SUCH UNIT. FURTHER , THE CLAIM OF 80IB HAVE BEEN ALLO WED IN AY 2001 - 02 BY THE DEPARTMENT . TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002 - 03, 2004 - 05 & 2005 - 06 HAVE BEEN ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB. ONCE SUCH A CLAIM HAS BEEN ALLOWED IN THE CASE OF THE ASSESSEE AND SAME DEDUCTION HA S TO BE ALLOWED AS A MATTER OF CONSEQUENCE, BECAUSE SAME FACTS AND REASONING ARE PERMEATING THROUGH IN THIS YEAR ALSO. THUS, WE DECLINE TO INTERFERE WITH THE DIRECTION GIVEN BY THE CIT(A). 6 . IN THE RESULT, APPEAL OF THE REVENUE STANDS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER , 2015. SD/ - SD/ - ( RAJESH KUMAR ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL ME MBER MUMBAI, DATE: 4 TH SEPTEMBER , 2015 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 2 , MUMBAI. 4 ) THE CIT 1/ CONCERNED ______ , MUMBAI. 5 ) , , / THE D.R. G BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS