ACIT, New Delhi V. M/s. Gitwako Farms (India) Pvt. ltd., New Delhi

ITA 773/DEL/2011

• Counselvise Citation: 77320114 RSA 2011
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI G.D. AGGRAWAL, HONBLE VICE PRESIDENT & SHRI C.L. SETHI, JUDICIAL MEMBER ITA NO.773/DEL/2011 ASSESSMENT YEAR: 2005-06 ACIT, VS. M/S GITWAKO FARMS (INDIA) P. LTD., CIRCLE 12(1), BIRBAL ROAD, JANGPURA EXTN., NEW DELHI. NEW DELHI. AAACG 1096K (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SALIL MISHRA, SR. DR RESPONDENT BY : NONE ORDER PER C.L. SETHI, J.M. THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 19.11.2010 PASSED BY THE LD. CIT(A) PERTAINING TO T HE A.Y. 2005-06. 2. THE GROUND OF APPEAL RAISED BY THE REVENUE IS DI RECTED AGAINST THE CIT(A)S ORDER IN DELETING THE DISALLOW ANCE OF RS. 23,70,528/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF ASSESSEES CLAIM U/S 80IB OF THE ACT. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 3,06 ,81,526/- ITA NO. 773/D/11 2 ON 28.10.2005. THE CASE WAS SELECTED FOR SCRUTINY TO MAKE ASSESSMENT U/S 143(3) OF THE ACT. 3. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF PROCESSING OF FISH AND MEAT. IN THE RETURN OF INCO ME, THE ASSESSEE CLAIMED DEDUCTION U/S 80IB OF THE ACT AMOU NTING TO RS. 23,70,528/-. IT HAS BEEN STATED BY THE AO IN T HE ASSESSMENT ORDER THAT THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80IB WAS ALSO EXAMINED DURING THE COURSE OF ASS ESSMENT PROCEEDINGS FOR THE A.Y. 2004-05, WHERE THE CLAIM O F THE ASSESSEE FOR DEDUCTION U/S 80IB WAS REJECTED AS IT WAS FOUND THAT THE ACTIVITY OF FOOD PROCESSING UNDERTAKEN BY THE ASSESSEE COULD NOT BE CATEGORIZED AS MANUFACTURING OR PRODUCTION WHICH HAS RESULTED INTO CREATION OF A NE W AND DISTINCT ARTICLE AND THING, A SINE QUA NON FOR AVAI LING DEDUCTION U/S 80IB OF THE ACT. AFTER DISCUSSING THE FACTS AN D CIRCUMSTANCES OF THE CASE AND CONSIDERING THE VARIO US CASES RELIED UPON BY THE ASSESSEE WHICH WERE DEALT IN DET AIL IN THE PRECEDING A.Y. 2004-05 AND IN THE LIGHT OF DETAILED DISCUSSION MADE BY THE AO IN THE A.Y. 2004-05, THE ASSESSING O FFICER DISALLOWED THE ASSESSEES CLAIM OF DEDUCTION U/S 80 IB BY HOLDING THAT AS THE ASSESSEE COMPANY WAS ENGAGED IN FOOD ITA NO. 773/D/11 3 PROCESSING, ITS ACTIVITIES DID NOT RESULT INTO MANU FACTURE OR PRODUCTION OF AN ARTICLE OR A THING. 4. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LD. CIT(A). 5. AFTER CONSIDERING THE AOS ORDER AND ASSESSEES SUBMISSION, THE LD. CIT(A) DECIDED THE ISSUE IN FAV OUR OF THE ASSESSEE AFTER FOLLOWING HIS DECISION PASSED IN THE A.Y. 2004- 05 WHICH HAS BEEN CONFIRMED BY THE TRIBUNAL. THE O PERATIVE PORTION OF THE LD. CIT(A)S ORDER IS AS UNDER: - I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT, THE FINDINGS OF THE AO AND THE FACTS ON RECORD. PERUSAL OF THE FACTS ON RECORD SHOWS THAT ON SIMILAR FACTS THE AO HAD DISALLOWED THE APPELLANTS CLAIM OF DEDUCTION U/S 80-IB IN A.Y. 2004-05. THE CIT(A) VIDE ORDER DATED 06.02.2008 IN THE APPEAL FOR A.Y. 2004-05 ALLOWED THE APPELLANTS CLAIM OF DEDUCTION. ON FURTHER APPEAL BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) THE HONBLE ITAT VIDE ORDER DATED 20.02.2009 IN ITA NO. 1300/D/08 FOR A.Y. 2004-05 UPHELD THE ORDER OF THE CIT(A) AND ALLOWED THE CLAIM OF THE APPELLANT FOR DEDUCTION U/S 80IB. WHILE ALLOWING THE APPELLANTS CLAIM OF DEDUCTION U/S 80IB THE HONBLE ITAT HAS HELD AS UNDER: ITA NO. 773/D/11 4 AT THE TIME OF HEARING BEFORE US, THE LD. DR HAS NOT BEEN ABLE TO RAISE ANY MATERIAL CONTENTION TO DISLODGE THE BASIS ADOPTED BY THE LD. CIT(APPEALS) WHILE GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE AND THIS BEING SO AS WELL AS FOR THE REASONS GIVEN ABOVE, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER OF LD. CIT(APPEALS) DELETING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF ASSESSEES CLAIM FOR DEDUCTION U/S 80IB. THE SAME IS, THEREFORE, UPHELD AND THIS APPEAL FILED BY THE REVENUE IS DISMISSED. THE FACTS AND CIRCUMSTANCES IN THE A.Y. 2005-06 ARE IDENTICAL TO THE FACTS IN A.Y. 2004- 05. RESPECTFULLY THE FOLLOWING DECISION OF THE HONBLE ITAT IN THE APPELLANTS OWN CASE IN A.Y. 2004-05, THIS GROUND OF APPEAL IS ALLOWED IN FAVOUR OF THE APPELLANT.' 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. NONE FOR THE ASSESSEE WAS PRESENT. THE APPLICATION FILED FOR ADJOURNMENT WAS REJECTED IN THE LIGHT OF THE SETTLE D ISSUE INVOLVED IN THE PRESENT CASE. ITA NO. 773/D/11 5 7. IN THE COURSE OF HEARING OF THIS APPEAL, IT WAS POINTED OUT TO THE LD. DR THAT IDENTICAL ISSUE HAVE BEEN DE CIDED BY THE TRIBUNAL IN A.Y. 2004-05, WHICH HAS BEEN FOLLOWED B Y THE LD. CIT(A) IN THE PRESENT ASSESSMENT YEAR. THIS POSITI ON HAS NOT BEEN DISPUTED BY THE LD. DR. SINCE, THIS IDENTICAL ISSUE CONSIDERED BY THE AO IN THE A.Y. 2004-05 HAS BEEN D ECIDED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 20.02.20 09 BY THE TRIBUNAL IN ITA NO. 1300/DEL/2008, WE HAVE NO REASO N TO TAKE A VIEW OTHER THAN THE VIEW TAKEN BY THE LD. CIT(A) IN THIS YEAR IN THE LIGHT OF THE DECISION OF THE TRIBUNAL PASSED IN IMMEDIATE PRECEDING A.Y. 2004-05. WE, THEREFORE, UPHELD THE ORDER OF LD. CIT(A) AND REJECT THIS GROUND RAISED BY THE REV ENUE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON 13.12.2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (G.D. AGGRAWAL) (C.L. SETHI ) VICE PRESIDENT JU DICIAL MEMBER DATED: 13.12.2011 *KAVITA ITA NO. 773/D/11 6 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR ITA NO. 773/D/11 7