ITO 19(3)(4), MUMBAI V. SHANKAR K. BHANAGE, MUMBAI

ITA 7451/MUM/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71895 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 01-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Question of law
• Section: 80IB; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , , , ! ' BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY AROR A, AM ./ I.T.A. NO. 7451/MUM/2010 ( # # # # $ $ $ $ / ASSESSMENT YEAR : 2007-08 THE ITO-19(3)(4), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012 SHRI SHANKAR K. BHANAGE, 6, BELLEVUE APARTMENTS, 1/5, DR. AMBEDKAR ROAD, BANDRA(W), MUMBAI-400 050 % ! ./ & ./PAN/GIR NO. : AAIPB 8595P ( %' /APPELLANT ) .. ( ()%' / RESPONDENT ) %' * / APPELLANT BY : ` SHRI ASHOK SURI ()%' + * /RESPONDENT BY : SHRI ASHOK J. PATIL # + ,-! / DATE OF HEARING :10.12.2013 .$ + ,-! / DATE OF PRONOUNCEMENT :10.12.2013 / / O R D E R U/S. 158A(4) PER I.P BANSAL, JM: THIS APPEAL IS FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER OF THE LD. CIT(A)-30, MUMBAI DT.13.8.2010 PERTAINI NG TO A.Y. 2007-08. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APP EAL: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING TH E CLAIM ITA NO.7451/M/2010 2 U/S. 80IB(11A) OF RS. 21,16,678/- WHICH WAS REJECTE D BY THE AO IGNORING THE FACT THAT: (A) THE ASSESSEE HAS NEVER PROVIDED ANY EVIDENCES TO ESTABLISH THAT HE IS INVOLVED IN THE STORAGE OF FOO D GRAINS. (B) THE TENDER DOCUMENT NOWHERE SAYS THAT THE TASK OF STORAGE IS INHERENT AND THE STATEMENT OF THE ASSESS EE TO THAT EFFECT IS CLEARLY AN AFTERTHOUGHT. (C) THE CERTIFICATE GIVEN BY THE FCI REGARDING THE ACTI VITIES OF THE ASSESSEE BEING INTEGRATED ACTIVITIES OF HAND LING, TRANSPORTATION AND STORAGE OF FOOD GRAINS HAS NO EVIDENTIARY VALUE UNLESS THE ASSESSEE ESTABLISHES T HROUGH EVIDENCES THAT HE IS ENTITLED FOR THE SAID DEDUCTIO N U/S. 80IB(11A) OF THE I.T. ACT. 3. AT THE OUTSET IT WAS CLAIMED BY THE LD. AR THAT THE ISSUE RAISED BY THE REVENUE IS COVERED IN FAVOUR OF DEPARTMENT BY THE ORDER OF THE TRIBUNAL RENDERED IN RESPECT OF EARLIER YEARS. RE FERENCE IN THIS REGARD WAS MADE TO THE ORDER OF THE TRIBUNAL DT. 5 TH SEPTEMBER, 2012 RENDERED IN ITA NOS. 3216 & 3217/MUM/2010 IN RESPECT OF ASSESSM ENT YEARS 2005- 06 AND 2006-07. HE FURTHER SUBMITTED THAT AN APPEA L HAS BEEN FILED AGAINST THE SAID ORDER BEFORE THE HONBLE BOMBAY HI GH COURT. A COPY OF APPEAL FILED BEFORE THE HONBLE BOMBAY HIGH COURT I S ALSO ENCLOSED IN THE PAPER BOOK ALONGWITH FORM NO. 8 AS PER RULE 16 U/S. 158A(1). 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY OBJECTION. 5. IN THESE CIRCUMSTANCES, WE ARE SATISFIED THE QUE STION OF LAW ARISING IN THE RELEVANT CASE IS IDENTICAL TO THE QUESTIONS RAISED BY THE ASSESSEE IN HIS APPEAL FILED BEFORE THE HONBLE BOMBAY HIGH COU RT IN RESPECT OF ASSESSMENT YEAR 2005-06. THEREFORE, WE ADMIT THE C LAIM OF THE ASSESSEE AND FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL, WE ALLOW THE APPEAL FILED ITA NO.7451/M/2010 3 BY THE REVENUE. FOR THE SAKE OF COMPLETENESS, THE RELEVANT OBSERVATIONS OF THE TRIBUNAL FROM AFOREMENTIONED ORDER DT. 5 TH SEPTEMBER, 2012 ARE REPRODUCED BELOW: WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES. THE WHOLE DISPUTE REV OLVES AROUND THE CLAIM OF THE ASSESSEE U/S. 80IB(11A) OF THE ACT. L ET US FIRST EXAMINE THE PROVISIONS OF SEC. 80IB(11A) OF THE ACT. SEC. 80IB (11A) THE AMOUNT OF DEDUCTION IN A CASE OF AN UNDERTAKING DERIVING PROFIT FROM THE BUSINESS OF PROCESSING, PRESERVATION AND PACKAGING OF FRUITS OR VEGETABLES OR MEAT AND MEAT PRODUCTS OR POULTRY OR MARINE OR DAIRY PRODUCT S OR] FROM] THE INTEGRATED BUSINESS OF HANDLING, STORAGE AND TR ANSPORTATION OF FOODGRAINS, SHALL BE HUNDRED PER CENT OF THE PRO FITS AND GAINS DERIVED FROM SUCH UNDERTAKING FOR FIVE ASSESSMENT Y EARS BEGINNING WITH THE INITIAL ASSESSMENT YEAR AND THER EAFTER, TWENTY-FIVE PER CENT (OR THIRTY PER CENT WHERE THE ASSESSEE IS A COMPANY) OF THE PROFITS AND GAINS DERIVED FROM THE OPERATION OF SUCH BUSINESS IN A MANNER THAT THE TOTAL PERIOD OF DEDUCTION DOES NOT EXCEED TEN CONSECUTIVE ASSESSMENT YEARS AN D SUBJECT TO FULFILMENT OF THE CONDITION THAT IT BEGINS TO OP ERATE SUCH BUSINESS ON OR AFTER THE 1ST DAY OF APRIL, 2001 :] [ PROVIDED THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO AN UNDERTAKING ENGAGED IN THE BUSINESS OF PROCESSIN G, PRESERVATION AND PACKAGING OF MEAT OR MEAT PRODUCTS OR POULTRY OR MARINE OR DAIRY PRODUCTS IF IT BEGINS TO OPERATE SUCH BUSINESS BEFORE THE 1ST DAY OF APRIL, 2009.] A PLAIN READING OF THE AFOREMENTIONED PROVISIONS SH OW THAT THE DEDUCTION IS AVAILABLE TO AN UNDERTAKING DERIVING P ROFIT FROM THREE BUSINESS ACTIVITIES. WE ARE NOT CONCERNED WITH THE FIRST TWO BUSINESS ACTIVITIES. WE ARE CONCERNED WITH THE THIRD BUSINE SS ACTIVITY. FOR OUR CONVENIENCE, LET US REFRAME THE PROVISION WHICH IS AS UNDER: THE AMOUNT OF DEDUCTION IN A CASE OF AN UNDERTAKI NG DERIVING PROFIT FROM THE INTEGRATED BUSINESS OF HANDLING, STORAGE A ND TRANSPORTATION OF FOOD GRAINS SHALL BE .. THREE CONDITIONS HAVE TO BE FULFILLED AS IT APPEARS FROM A PLAIN READING OF THE AFORESAID PROVISION. FIRST HANDLING, SECOND STORAGE AND THIRD TRANSPORTATION OF FOOD GRAINS. ALL THE THREE CONDI TIONS SHOULD BE ITA NO.7451/M/2010 4 INTEGRATED WITH EACH OTHER. THE DISPUTE IN THE PRE SENT CASE RELATES TO THE SECOND CONDITION I.E. STORAGE. LET US NOW SEE H OW IMPORTANT IS THIS CONDITION. THE MEMORANDUM APPENDED TO THE FINANCIA L BILL BY WHICH SEC. 80IB(11A) WAS AMENDED SHOW THE LEGISLATIVE INT ENT IS AS UNDER: TAX HOLIDAY FOR UNDERTAKINGS ENGAGED IN THE INTEGRA TED HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS . UNDER THE EXISTING PROVISIONS OF SEC. 80-IB OF THE INCOME-TAX ACT, A DEDUCTION IS ALLOWED, IN COMPUTING THE TAXAB LE INCOME, IN RESPECT OF PROFITS DERIVED FROM A NEW INDUSTRIAL UN DERTAKING OR A SHIP OR THE BUSINESS OF A HOTEL. TO ADDRESS THE CO UNTRYS BASIC CONCERNS RELATING TO ENHANCED FOOD SECURITY AND AGR ICULTURAL DEVELOPMENT, UPGRADATION AND MODERNIZATION OF INFRA STRUCTURE FOR STORAGE, HANDLING AND TRANSPORTATION OF FOOD GR AINS IS A CENTRAL CONCERN IN WHICH INTRODUCTION OF MODERN TEC HNOLOGY WOULD BRING GREATER EFFICIENCY IN THE GRAIN MANAGEM ENT SYSTEM AND MINIMIZE POST HARVEST FOOD GRAIN LOSSES. THE BILL PROPOSES TO ENCOURAGE BUILDING OF STORAGE CAPACITIES, BY PROVIDING THAT ANY UNDERTAKING ENGAG ED IN INTEGRATED BULK HANDLING, STORAGE AND TRANSPORTATIO N WOULD BE ALLOWED HUNDRED PER CENT DEDUCTION FOR THE FIRST FI VE YEARS AND THIRTY PER CENT DEDUCTION FOR THE NEXT FIVE YEARS. POLICY AND ITS IMPLEMENTATION :- THE ENTIRE SCHEME COVERED BY SEC. 80-IB(11A) RELATES TO SERVICES IN CONNECTION WI TH PRESERVATION OF FOOD GRAINS PROMOTED BY THE GOVERNM ENT OF INDIA UNDER TFC-14/99-VOLUME III, DT. 4 TH JULY, 2000 FOLLOWING THE NATIONAL POLICY IN RESPECT OF HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS. IT RELATES TO BOTH C ONSTRUCTION CONTRACT AND THE PRESERVATION CONTRACTS ARISING OUT OF A SCHEME SPONSORED BY THE GOVERNMENT OF INDIA ADMINISTERED B Y AN AGENCY OF THE STATE GOVERNMENT. IT IS PART OF THE CENTRAL SCHEME UNDER THE IMPLEMENTATION OF FOOD CORPORATION OF INDIA IN PURSUANCE OF THE NATIONAL POLICY FOR HANDLING, S TORAGE AND TRANSPORTATION OF FOOD GRAINS. SECTION 80-IB(11A) TARGETS FOR RELIEF FOR THE BUSINE SS OF PROCESSING PRESERVATION AND PACKAGING OF FRUITS AND VEGETABLES AS NEWLY ADDED FROM A.Y. 2005-06, WHILE THE RELIEF HAS BEEN ITA NO.7451/M/2010 5 AVAILABLE W.E.F. 1.4.2002 FOR ALL UNDERTAKINGS, WHI CH HAVE BEGUN TO OPERATE ON OR AFTER 1 ST APRIL, 2001 FOR ANY INCOME FROM THE INTEGRATED BUSINESS OF HANDLING, STORAGE AND TRANS PORTATION OF FOOD GRAINS USING THE VERY LANGUAGE OF THE POLICY. BOTH THE CONSTRUCTION AS WELL AS THE PRESERVATION C ONTRACT ARE SUBJECT TO AN AGREEMENT WITH CENTRAL OR STATE WAREH OUSING CORPORATION IN PURSUANCE OF THE POLICY AND THE OTHE R PAPERS ISSUED FROM TIME TO TIME BY THE GOVERNMENT. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS NEITHER TH E OWNER NOR THE LESSEE OF THE GODOWN. THE OWNERSHIP VESTS WITH THE FCI. THE LD. COUNSEL SUBMITTED THAT EVEN WHEN THE ASSESSEE WAS C ARRYING FOOD GRAINS IN HIS TRUCK, HE WAS IN THE PROCESS OF STORA GE OF FOOD GRAINS. TO SUBSTANTIATE, THE LD. COUNSEL RELIED UPON THE DECIS ION OF THE HONBLE HIGH COURT OF ORISSA IN CRIMINAL REVN. NO. 43 OF 19 51 DECIDED ON 15.01.1953 IN THE CASE OF BALABHADRA RAJA GURU MOHA PATRA VS THE STATE AIR 1954 ORISSA 95 AND SUBMITTED THAT IN THIS CASE, THE HONBLE HIGH COURT OF ORISSA HAS HELD THAT CARRYING OF GOOD S IN A TRUCK AMOUNTS TO STORAGE. WE HAVE CAREFULLY GONE THROUGH THE CIT ED CASE. WE FIND THAT IN THAT CASE THE ACCUSED WAS CARRYING 50 BAGS OR 100 MAUNDS RAGI IN A TRUCK WHICH ACCORDING TO THE STATE WAS IN CONTRAVENTION TO THE ORISSA FOOD GRAINS CONTROL ORDER, 1947 WHEREIN IT W AS PROVIDED THAT NO PERSON SHALL ENGAGE IN ANY UNDERTAKING WHICH IN VOLVES THE PURCHASE, SALE OR STORAGE FOR SALE, IN WHOLESALE QU ANTITIES OF ANY FOOD GRAINS EXCEPT UNDER AND IN ACCORDANCE WITH A LICENC E ISSUED IN THAT BEHALF BY THE DIRECTOR OF FOOD SUPPLIES. EXPLANAT ION (2) OF THE SAID ORDER PROVIDED THAT FOR THE PURPOSE OF THIS CLAUSE ANY PERSON WHO STORES MUNG AND BIRI OR THEIR PRODUCTS IN QUANTITIE S EXCEEDING 20 STANDARD MAUNDS AND OTHER FOOD GRAINS IN QUANTITIES EXCEEDING 50 STANDARD MAUNDS, SHALL UNLESS THE CONTRARY IS PROVE D BE DEEMED TO STORE THE FOOD GRAINS FOR PURPOSES OF SALE. IT WAS HELD THAT THE TRUCK BELONGS TO THE ACCUSED AND THEREFORE 100 MAUNDS OF RAGI FOUND IN THE TRUCK BELONGED TO THE ACCUSED. THE QUESTION BEFORE THE HONBLE COURT WAS WHETHER POSSESSION OF THE GOODS WHILE IN TRANSI T IN A TRUCK CAN BE DESCRIBED AS STORAGE WITHIN THE MEANING OF THE CO NTROL ORDER. ON THIS QUESTION, THE HONBLE HIGH COURT HAS HELD THAT THE PETITIONER WAS ENGAGED IN AN UNDERTAKING WHICH INVOLVED THE STORAG E FOR SALE OF MORE THAN 50 MAUNDS AND ACCORDINGLY HAD CONTRAVENED THE PROVISIONS OF CLAUSE III(1). WE DO NOT FIND ANY SUBSTANCE IN THE SU BMISSION OF THE LD. COUNSEL TO RELY UPON THE MEANING GIVEN TO STOR AGE OF THIS DECISION OF THE HONBLE HIGH COURT OF ORISSA BECAUS E IN THAT CASE, THE ACCUSED WAS FOUND TO CARRY GOODS WHICH WERE PROHIBI TED BY THE LAW AND ON THAT NOTE, THE COURT HAS HELD THAT EVEN IF A PERSON IS FOUND CARRYING GOODS WILL BE TAKEN AS INVOLVED IN THE STO RAGE FOR SALE. ITA NO.7451/M/2010 6 HOWEVER, THE POINT WHICH IS TO BE NOTED HERE IS THA T THE COURT HAS EMPHASIZED ON STORAGE IN RELATION TO SALE. ASS UMING YET DENYING THAT BY CARRYING GOODS, THE ASSESSEE WAS IN THE PRO CESS OF STORAGE THEN SUCH PROCESS SHOULD CULMINATE INTO SALE WHICH IS MISSING ON THE FACTS OF THE INSTANT CASE. THE ASSESSEE FURTHER RE LIED UPON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CI T VS AHMEDABAD MASKATI CLOTH DEALERS CO-OPERATIVE WAREHOUSES SOCIE TY LTD. 162 ITR 142 WHEREIN THE HONBLE GUJARAT HIGH COURT HAD AN O CCASION TO CONSIDER WORDS GODOWNS OR WAREHOUSES AND THEIR D ICTIONARY MEANING. IN THAT CASE, THE ASSESSEE CLAIMED EXEMPT ION U/S. 80P(2)(E) ON THE PRETEXT THAT RENTAL INCOME RECEIVED BY IT ON LETTING OUT OF SHOP AMOUNTED TO RENTAL INCOME RECEIVED FROM GODOWNS OR WAREHOUSES. AFTER CONSIDERING IN DETAIL, THE MEANING OF THE WOR DS GODOWNS AND WAREHOUSES AND THE LEGISLATIVE INTENT FOR ALLOWING DEDUCTION U/S. 80P(2)(E) OF THE ACT, THE HONBLE HIGH COURT HELD T HAT ASSESSEE SOCIETY MUST SHOW THAT IT HAS DERIVED INCOME FROM THE LETTI NG OF GODOWNS OR WAREHOUSES WHICH IT HAS FAILED BECAUSE IT HAS RECEI VED RENTAL INCOME FROM THE LETTING OF SHOPS USED FOR BUSINESS IN CLOT H WHICH CANNOT BE SAID TO BE INCOME DERIVED FROM LETTING OF GODOWNS A ND WAREHOUSES. IN OUR HUMBLE OPINION THIS DECISION ALSO DOES NOT HELP THE ASSESSEE ON THE FACTS OF THIS CASE. TAKING A LEAF OUT OF THE ABOVE SAID DECISION, WE FI ND THAT THE HONBLE GUJARAT HIGH COURT HAS REFERRED TO THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CASE OF CGT VS N.S. GETTI CHE TTIAR (1971) 82 ITR 599 AT PAGES 605-606 OF THE SAID JUDGEMENT, THE HONBLE SUPREME COURT HAS OBSERVED AS UNDER: WORDS IN THE SECTION OF A STATUTE ARE NOT TO BE IN TERPRETED BY HAVING THOSE WORDS IN ONE HAND AND THE DICTIONARY I N THE OTHER. IN SPELLING OUT THE MEANING OF THE WORDS IN A SECTIO N, ONE MUST TAKE INTO CONSIDERATION THE SETTING IN WHICH THOSE TERMS ARE USED AND THE PURPOSES THAT THEY ARE INTENDED TO SE RVE. IN RESPONSE TO WHICH THE HONBLE GUJARAT HIGH COURT OBSERVED THAT THE DICTIONARY MEANING OF A WORD OR EXPRESSION USED IN A STATUTE IS RELEVANT BUT NOT SACROSANCT AND THE COURT WILL NOT HESITATE TO DEPART FROM THE DICTIONARY MEANING IF THE CONTEXT AND THE SETTING IN WHICH THE WORD OR EXPRESSION IS USED SO SUGGESTS OR DEMAN DS. LITERAL INTERPRETATION OF WORDS INTEGRATED BUSINE SS OF HANDLING, STORAGE AND TRANSPORTATION OF FOOD GRAINS WILL NO T LEAD TO ANY ABSURDITY OR PRODUCE ANY MANIFESTLY UNJUST RESULT. THE LEGISLATIVE INTENT IS NOT TO ENCOURAGE TRANSPORTATION OR HANDLI NG OF FOOD GRAINS BUT THE LEGISLATIVE INTENT IS TO ENCOURAGE CONSTRUCTION OF GODOWNS AND ITA NO.7451/M/2010 7 WAREHOUSES WITH A VIEW TO PROVIDING STORAGE OF FOOD GRAINS. IF WE CONSIDER THE ENTIRE COMBAT OF THE SCHEME RELATING T O THE TAX HOLIDAY PROVIDED BY THE LEGISLATURE, WE FIND THAT THE DEDUC TIONS ARE AVAILABLE UNDER VARIOUS PROVISIONS WHEN THE ASSESSEE HAS CONT RIBUTED SOMETHING TOWARDS THE INFRASTRUCTURE DEVELOPMENT OF THE COUNT RY. IN THE INSTANT CASE, WE DO NOT FIND ANY CONTRIBUTION TOWARDS THE I NFRASTRUCTURE BY THE ASSESSEE. THE ASSESSEE IS SIMPLY HANDLING AND TRAN SPORTING THE FOOD GRAINS AND STORING AT THE GODOWNS OF THE FCI WHICH MEANS THAT THE ASSESSEE IS USING THE EXISTING INFRASTRUCTURE OF TH E STATE WHEREAS THE MAIN PURPOSE OF BRINGING THIS PROVISION IS CONSTRUC TION OF GODOWNS SPECIFICALLY FOR STOCKING FOOD GRAINS FOR GREATER E FFICIENCY IN THE GRAIN MANAGEMENT SYSTEM AND MINIMIZE POST HARVEST FOODGRA IN LOSSES. THE ASSESSEE HAS NOT DONE ANYTHING TOWARDS THESE FACILI TIES. IF WE LOOK AT TENDER BY WHICH THE ASSESSEE HAS BEEN AWARDED THIS CONTRACT, THE TENDER IS ISSUED WITH THE FOLLOWING HEAD NOTE: INVITATION TO TENDER AND INSTRUCTIONS TO THE TENDE RERS FOR APPOINTMENT OF HANDLING AND TRANSPORT CONTRACTOR AT FSD. BHUIWANDI WITH HANDLING OF FOODGRAINS AT TURBHE GOO DS SHED/BHIWANDI/KALYAN GOODS SHED AND TRANSPORTATION FROM TURBHE BHIWANDI GOODS SHED AND KALYAN GOODS SHED TO BHIWANDI DEPOT AND VICE VERSA. EVEN THE TENDER PARTICIPATED BY THE ASSESSEE SHOW T HAT THE ASSESSEE HAS BEEN AWARDED THE CONTRACT FOR HANDLING AND TRANSPORTATION OF FOOD GRAINS TO THE PLACES MENTION ED THEREIN. THE CONTENTION OF THE ASSESSEE THAT SEC. 80IB BEING A BE NEVOLENT PROVISION LIBERAL CONSTRUCTION SHOULD BE APPLIED CANNOT BE AC CEPTED BECAUSE BENEFICIAL INTERPRETATION APPLIES ONLY WHERE TWO VI EWS ARE REASONABLY POSSIBLE WHEREAS IN THE INSTANT CASE, WE DO NOT FIN D ANY OTHER POSSIBLE VIEW ON THE FACTS OF THE MATTER WHERE THE LAW IS CL EAR AND UNAMBIGUOUS, WE CANNOT ACT CONTRARY TO IT WITH A VI EW TO GIVE BENEFIT TO THE ASSESSEE. AFTER CONSIDERING THE ENTIRE FACTS IN TOTALITY ALONGWITH THE LEGISLATIVE INTENT, IN OUR CONSIDERATE VIEW, TH E ASSESSEE HAS NOT FULFILLED THE CONDITIONS PRECEDENT FOR MAKING HIM E LIGIBLE FOR DEDUCTION U/S. 80IB(11A) OF THE ACT. WE FIND THAT THE LD. CIT (A) HAS BEEN CARRIED AWAY WITH THE CERTIFICATE ISSUED BY DGM OF FCI. THE DGM IN HIS WISDOM MAY HAVE ISSUED THE CERTIFICATE WITHOUT CONSIDERING THE LEGISLATIVE INTENT OF THE SCHEME, THEREFORE WE CANN OT GIVE MUCH WEIGHTAGE TO SUCH CERTIFICATE. THE LD. CIT(A) HAS ERRED IN ALLOWING DEDUCTION TO THE ASSESSEE WHICH HE IS NOT ELIGIBLE. ACCORDINGLY, THE FINDING OF THE LD. CIT(A) IS REVERSED. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS A LLOWED. ITA NO.7451/M/2010 8 6. IT MAY FURTHER BE MENTIONED THAT AS PER PROVISIO NS OF SUB-SECTION 5 TO SEC. 158A, WHEN THE DECISION OF QUESTION OF LAW IN RESPECT OF ASSESSMENT YEAR 2005-06 SHALL BECOME FINAL, THE SAM E SHALL BE APPLIED TO THE PRESENT CASE AND THE ASSESSEE WILL INFORM THE T RIBUNAL SO THAT NECESSARY AMENDMENT BE EFFECTED TO BRING THIS ORDER IN CONFORMITY WITH THE DECISION OF HONBLE HIGH COURT AS AND WHEN REN DERED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.12.2013 . / + $ ! 0 1#2 10.12.2013 + 3 SD/- SD/- (SANJAY ARORA) (I.P. BANSAL ) ! / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 1# DATED 10/12/2013 . # . ./ RJ , SR. PS / / / / + ++ + (,4 (,4 (,4 (,4 5 4$, 5 4$, 5 4$, 5 4$, / COPY OF THE ORDER FORWARDED TO : 1. %' / THE APPELLANT 2. ()%' / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 473 (,# , , / DR, ITAT, MUMBAI 6. 38 9 / GUARD FILE. /# /# /# /# / BY ORDER, )4, (, //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI