ITO, Ward - 2(3), Kolkata V. J.D. Enterprises Pvt. Ltd., Kolkata

ITA 728/KOL/2008

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3062 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Next Hearing Date: 16-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 02-05-2008
• Court: TRIBUNAL
• Department Lawyers: AMIT KUMAR MAITRA
• Assessee Lawyers: H V BHARADWAJ
• Section: 10B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , ! ' #!' ' #!' ' #!' ' #!', ,, , ] ]] ] [BEFORE HONBLE SRI N.S.SAINI AM & HONBLE SRI M AHAVIR SINGH, JM] !% !% !% !% /ITA NO.728/KOL/2008 #& '(/ ASSESSMENT YEAR : 2004-05 (*+ / APPELLANT ) - - ( -.*+ /RESPONDENT) I.T.O., WARD-2(3), . J.D.ENTERPRISES PVT. LTD. KOLKATA -VERSUS- KOLKATA (PAN:AAACJ 6512 F) *+ / 0 / FOR THE APPELLANT: SHRI AMIT KUMAR MAITRA, SR.DR -.*+ / 0 / FOR THE RESPONDENT: SHRI H.V.BHARADWAJ 1 2 / 3 /DATE OF HEARING : 26.04.2013 4' / 3 /DATE OF PRONOUNCEMENT : 30.04.2013. 5 / ORDER PER SHRI N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 31.01.2008. 2. THE SOLE ISSUE INVOLVED IN THE APPEAL OF THE RE VENUE IS THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 10B FOR A.Y.200-05, EVEN THOUGH THE ASSESSEE HAD NOT FILED CERTIFICATES GRANTING STATUS OF 100% EOUAS PER EXPLANATION 2(IV) BELOW SUB-SECTION (8) OF SECT ION 10B OF THE I.T.ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IN THE RETURN OF INCOME FILED CLAIM OF EXEMPTION U/S 10B OF THE IT ACT OF RS.29,6 2,795/-. THE DEDUCTION WAS DISALLOWED BY THE AO ON THE GROUND THAT THE GENERAL MANAGER, DIRECTORATE OF COTTAGE AND SMALL SCALE INDUSTRIES, WHO HAD ISSUED THE CERT IFICATE OF REGISTRATION CERTIFYING THE ASSESSEE AS A SMALL SCALE INDUSTRY UNIT IN REPLY TO THE LETTER OF THE AO HAS STATED THAT HE WAS NOT THE AUTHORITY FROM THE CONCERNED MINISTR Y TO ISSUE SUCH A CERTIFICATE. ITA NO. 728/KOL/2008 2 FURTHER THE CERTIFICATE ISSUED DID NOT SPECIFY THE ASSESSEE TO BE 100% EXPORT ORIENTED UNDERTAKING FOR THE PURPOSE OF SECTION 10B OF THE I T ACT BUT WAS ONLY A CERTIFICATE OF REGISTRATION AS SMALL SCALE UNIT. 4. ON APPEAL THE LD. CIT(A) ALLOWED THE DEDUCTION C LAIMED BY THE ASSESSEE U/S 10B OF THE ACT BY FOLLOWING THE ORDER OF THE TRIBUN AL IN ASSESSEES OWN CASE FOR A.Y.2002-03 PASSED IN ITA NO.2491/KOL/2005 DATED 28 .7.2006. 5. AT THE TIME OF HEARING THE LD. DR MR.AMIT KUMAR MAITRA, VERY FAIRLY CONCEDED THAT THE ISSUE HAS AGAIN COME UP BEFORE THE TRIBUNA L IN ASSESSEES OWN CASE IN THE IMMEDIATELY PRECEDING A.Y.2003-04 WHEREIN THE TRIBU NAL VIDE ORDER DATED 12 TH AUGUST, 2011 IN ITA NO.275/KOL/2010 CONFIRMED THE O RDER OF THE LD. CIT(A) ALLOWING DEDUCTION U/S 10B OF THE ACT TO THE ASSESS EE. 6. AFTER CONSIDERING THE ABOVE SUBMISSION OF THE LD . DR WE FIND THAT THE TRIBUNAL IN THE A.Y.2003-04 WHILE CONSIDERING GROUND NO.1 OF THE APPEAL OF THE ASSESSEE WHICH READS AS UNDER : 1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION OF RS.19,63,632/- U/S 10B OF THE INCOME TAX ACT, 1961 IGNORING PROVISIONS OF SECTION 10B(5) AND SUB-CLAUSE (IV) TO THE EXPLANATION 2 OF SECTION 10B OF THE I.T.ACT, 1961. HAS HELD IN PARA OF ITS ORDER AS UNDER :- 4. WE FIND THAT SUBMISSION OF AUDITORS REPORT A S DEFINED IN EXPLANATION (II) SECTION 288(2) OF THE ACT IS DIRECTORY AND NOT MANDATORY AN D REPORT CAN BE FILED EVEN DURING THE COURSE OF ASSESSMENT AND THE ASSESSEE FILED THE SAME BEFORE A O. EVEN OTHERWISE, ASSESSEE ALSO SUBMITTED CERTIFICATE FROM DIRECTORAT E OF COTTAGE AND SMALL SCALE INDUSTRIES, GOVT. OF INDIA WHICH HAS APPROVED THE C OMPANY AS 100% EOU. THE DIRECTORATE OF COTTAGE & SMALL SCALE INDUSTRIES, GO VT. OF INDIA IS AN AUTHORITY REGULATING PROVISIONS OF INDUSTRIES (DEVELOPMENT & REGULATION) ACT, 1951 AT THE LEVEL OF PRODUCTION AND INVESTMENT IN PLANT AND MACHINERY OF THE COMPANY FALLING UNDER THAT ACT. THE DIRECTORATE OF COTTAGE & SMALL SCALE INDUS TRIES, GOVT. OF INDIA IS THE ENTITY, BEING BOARD APPOINTED IN THIS BEHALF, BY THE CENTRA L GOVT. IN EXERCISE OF ITS POWER CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPM ENT & REGULATION) ACT, 1951. WE FIND THAT THIS CERTIFICATE ISSUED BY DIRECTORATE OF COTTAGE & SMALL SCALE INDUSTRIES, GOVT. OF INDIA SATISFIED THE PROVISIONS OF SUB-CLAU SE (4) EXPLANATION (II) TO SECTION 10B OF THE ACT. EVEN THE ASSESSEE HAS SUBMITTED FORM NO .56G ALONG WITH RETURN OF INCOME WHEREIN THE DATE OF COMMENCEMENT OF MANUFACTURE OR PRODUCTION IS DECLARED AS ITA NO. 728/KOL/2008 3 24.12.1991 WHEREAS FRESH CERTIFICATE IN FORM NO.56G WAS FILED REFERRING COMMENCEMENT OF MANUFACTURE/PRODUCTION AS 18.2.2000 , WHICH IS THE DATE OF REGISTRATION AS 100% EOU. ASSESSEE CLAIMED DEDUCTIO N U/S 10B OF THE ACT W.E.F. ASSESSMENT YEAR 2001-02, AS ASSESSEES UNIT WAS REG ISTERED AS 100% EOU FROM 18.2.2000. IN VIEW OF THESE FACTS, HE ALLOWED THE C LAIM OF ASSESSEE. WE FIND NO INFIRMITY IN ORDER OF CIT(A) AND UPHOLD THE SAME. ACCORDINGLY , APPEAL OF REVENUE IS DISMISSED. 6.1. RESPECTFULLY FOLLOWING THE ABOVE QUOTED ORDER OF THE TRIBUNAL, WE CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE GROUND OF A PPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE COURT ON 30.04.2013. SD/- SD/- [ .' #!' , ] [ .., ,, , ] [MAHAVIR SINGH ] [N.S.SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (3 3 3 3) )) ) DATE: 30.04.2013. R.G.(.P.S.) 5 / -##6 76'8- COPY OF THE ORDER FORWARDED TO: 1. J.D.ENTERPRISES PVT. LTD., 25/27, CANAL SOUTH ROAD, KOLKATA-700015. 2 I.T.O., WARD-2(3), KOLKATA 3 . CIT KOLKATA 4 . CIT(A)-I, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. .6 -#/ TRUE COPY, 51/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES