RAINBOW PLASTICS INDIA LTD, MUMBAI V. ITO 8(3)(3), MUMBAI

ITA 7358/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7268 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 17-03-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 31-12-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S RAWAL
• Assessee Lawyers: N R AGRAWAL
• Keywords: Opportunity of being heard
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D: MUMBAI BEFORE SHRI S.V. MEHROTRA (AM) AND SHRI R.S. PADVEKAR (JM) ITA NO. 7358/MUM/2008 (ASSTT. YEAR : 2005-06) M/S. RAINBOW PLASTICS INDIA LTD., APPELLANT 45-A, GIRIRAJ INDUSTRIAL ESTATE, ANDHERI (E), MUMBAI- 400 093 PAN : AAACR3169G V/S. INCOME TAX OFFICER 8(3)(3) RESPONDENT AAYKAR BHAVAN, MUMBAI APPELLANT BY :MR. N.R. AGRAWAL RESPONDENT BY :MR. S. RAWAL : O R D E R : PER R.S. PADVEKAR, J.M THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE IMPUGNED ORDER OF THE LD CIT(A)- XXIX, MUMBAI DATED 06.11.2008 FOR THE A.Y. 2005-06. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE G ROUND IN THE APPEAL : 1: THE LEARNED CIT-APPEALS ERRED IN DISALLOWING A DED UCTION U/S. 80IB OF RS.2,82,363/- WHICH WAS NOT CLAIMED EARLIER BY ASSESSEE IN HIS RETURN FOR ASSESSMENT YEAR 2005-06 BUT CLAIMED IN A SSESSMENT PROCEEDING . 3. THE FACTS IN BRIEF WHICH REVEAL FROM THE RECORD ARE AS UNDER : THE ASSESSEE IS IN MANUFACTURING OF PLASTIC GOODS. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2005-06 DECLARING THE TOTAL INCOME OF RS.9,41,211/-. THE ASSESSEES CASE WAS SELECTED FO R SCRUTINY AND ASSESSMENT WAS COMPLETED U/S. 143(3). DURING THE COURSE OF TH E ASSESSMENT PROCEEDINGS, ITA NO. 7358/MUM/2008 2 THE ASSESSEE MADE THE CLAIM FOR DEDUCTION U/S. 80IB OF THE ACT TO THE EXTENT OF RS.2,82,363/-. THE A.O. REJECTED THE CLAIM OF T HE ASSESSEE RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GO EZE (I) LTD. V/S. CIT, 284 ITR 323. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD CIT(A) WHO CONFIRMED THE ORDER OF THE A.O. NOW, THE ASSESSEE IS IN APPE AL BEFORE US. 4. WE HAVE HEARD THE PARTIES. THE LD COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS FULL POWERS TO ADMIT ANY GROU ND ON ANY NEW CLAIM WHICH IS A LEGAL GROUND. IT IS ARGUED THAT IN GOEZE (I) L TD. (SUPRA), IN CLEAR TERMS THE HONBLE SUPREME COURT HAS OBSERVED THAT THE POWERS OF THE TRIBUNAL TO ADMIT THE NEW GROUND WILL NOT BE AFFECTED AND THE RESTRIC TIONS ARE ONLY ON THE A.O. IT IS ARGUED THAT IN ASSESSEES OWN CASE FOR THE A. Y. 2003-04, THE TRIBUNAL HAS CONFIRMED THE ORDER OF THE CIT(A) ALLOWING THE DEDU CTION U/S. 80IB AS CLAIMED BY THE ASSESSEE. IT IS ARGUED THAT IN THE SUBSEQUE NT YEARS, MORE PARTICULARLY, IN THE A.Y. 2006-07 AND 2007-08. THE ASSESSEES CL AIM U/S. 80IB HAS BEEN ALLOWED BY THE A.O. THE LD COUNSEL RELIED ON THE F OLLOWING PRECEDENTS : I) CIT V/S. RAMCO INTERNATIONAL, 221 CTR 491 (PUN . & HARYANA) II) CHICAGO PNEUMATIC INDIA LTD. V/S. DY. CIT, 15 SOT 252 (MUM) 5. WE HAVE HEARD THE LEARNED D.R. IN THIS CASE, TH E ASSESSEE HAS BEEN ALLOWED THE DEDUCTION U/S. 80 IB IN THE IMMEDIATE P RECEDING YEAR AS WELL AS THE SUBSEQUENT YEAR. IN THE ORIGINAL RETURN, THE A SSESSEE DID NOT CLAIM THE DEDUCTION U/S. 80 IB, BUT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE CLAIMED THE DEDUCTION WHICH WAS REJECT ED BY THE A.O, RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF GOEZE (I) LTD. (SUPRA), IN WHICH IT IS HELD THAT ANY CLAIM OF DEDU CTION WHICH IS NOT MADE IN THE ORIGINAL RETURN CAN ONLY BE MADE BY FILING A RE VISED RETURN. AT THE SAME TIME, THE HONBLE SUPREME COURT HAS MADE IT CLEAR T HAT THE ISSUE WAS DEALT WITH IN RESPECT OF THE LIMITATION ON THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT RESTRICT POWER OF THE TRIBUNAL U/SEC. 254 OF THE I.T. ACT. AS THE ISSUE BEFORE US IS LEGAL ISSUE AND AS THE FACTS ARE RECOR DED, WE THEREFORE, ADMIT THE GROUND TAKEN BY THE ASSESSEE AND RESTORE THE SAME T O THE FILE OF THE A.O FOR ITA NO. 7358/MUM/2008 3 ADJUDICATION ON MERIT. THE A.O IS DIRECTED TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER PROVISIONS OF LAW. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH DAY OF MARCH, 2010. SD/- SD/- (S.V. MEHROTRA) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 24TH DAY OF MARCH, 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT , 3.THE CIT(A)- XXIX, MUMBAI 4.THE CIT -8, MUMBAI 5.THE DR, D BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. ITA NO. 7358/MUM/2008 4 US DATE INITIALS 1. DRAFT DICTATED ON 18/3/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 22/3/10 --------- ----- SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----