Dy Comm of Income-tax, Nashik V. M/s. Mangalmurty Construction, Nashik

ITA 799/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56515 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80IB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.799/PN/2010 & 800/PN/2010 (ASSESSMENT YEAR: 2004-05 & 2005-06) DCIT,CIR.1, NASHIK .. APP ELLANT VS. MANGALMURTI CONSTRUCTION, .. RESPONDENT 1 & 2, RAMTIRTH, APARTMENTS, KULKARNI COLONY, OPP. SHARANPUR ROAD, NASHIK PAN AAGFM7492Q APPELLANT BY: SHRI NEERA MALH OTRA, DR RESPONDENT BY: SHRI NIKHIL PATH AK, AR ORDER PER D.KARUNAKARA RAO, AM : THESE ARE THE TWO APPEALS BY THE REVENUE DIRECTED AGAINST THE COMBINED ORDER OF THE COMMISSIONER OF INCOME TAX (A )- I, DATED 23/03/2010 FOR THE ASSESSMENT YEAR 2004-05 AND 2005-06. THE SA ID ORDER IS PASSED IN CONNECTION WITH THE FRESH ASSESSMENT ORDERS PASSE D BY THE AO GIVING EFFECT TO THE REVIEW ORDER OF THE CIT. OTHERWISE THE CIT I NVOKED THE PROVISION OF SECTION 80IB AND ORDER FOR DENIAL OF DEDUCTION. AO GAVE EFFECT THE SAID ORDER OF THE CIT. DURING THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) GRANTED RELIEF TO THE ASSESSEE AND ALLOWED THE APPEALS OF THE ASSESSE E. THUS, THE REVENUE FILED THE PRESENT APPEALS. 2. THE GROUNDS OF APPEAL, AS RAISED BY THE REVEN UE, READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A)-I, NASHIK IS JUSTIFIED IN HOLDING THAT TH E PROVISIONS OF SECTION 80IB(13) AND 80IA (10) ARE NOT APPLICABLE I N THE CASE OF THE ASSESSEE FIRM ? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A)-I, NASHIK HAS ERRED IN HOLDING THAT THE A SSESSEE FIRM HAS EARNED NET PROFIT @ 42%, WHILE IN THE LINE OF BUSIN ESS THE ASSESSEE IS ENGAGED IN THE NET PROFIT RATE IS IN THE RANGE O F 8% TO 12% ? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A)-I, NASHIK HAS ERRED IN IGNORING THE FACT THAT THE ASSESSEE FIRM HAS NOT DEBITED IMPORTANT AND UNAVOIDABLE HEAD S OF EXPENSES ITA NO.799/PN/2010 & 800/PN/2010 (ASSESSMENT YEAR: 2004-05 & 2005-06) MANGALMURTI CONSTRUCTION, SUCH AS ACCOUNTING CHARGE, ADMINISTRATIVE CHARGES, BROKERAGE, SALES PROMOTION ETC. ? 3. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE FILED A COPY OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE SA ME ASSESSMENT YEAR 2004- 05 AND 2005-06 VIDE ITA NO. 845 AND 946/PN/2009 DAT ED 29/06/2011 AND MENTIONED THAT THIS IS ORDER OF THE TRIBUNAL WAS PA SSED IN THE CONTEXT OF THE PROVISIONS OF SECTION 263 OF THE ACT FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 AGAINST THE REVIEW OF THE CIT. THE TRIBUNA L QUASHED THE SAID PROCEEDINGS FOR BOTH THE YEARS ON THE ISSUE OF THE JURISDICTION OF THE CIT. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE R EFERRED LAST PARA NINE AND TEN. FURTHER, REFERRING TO THE PRESENT APPEALS, TH E LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THE THESE ARE APPEALS RELAT ED TO THE FRESH ASSESSMENT ORDERS PASSED U/S. 263 R.W.S. 143 OF THE ACT GIVING EFFE CT TO THE SAID QUASHED ORDERS OF THE CIT PASSED U/S. 263 OF THE ACT VIDE ORDER DATED 29/06/2011. FURTHER, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THESE ASSESSMENTS ALSO HAVE TO FOLLOW SAME FAT E AS THE REVIEW ORDERS, WHICH ARE THE SOURCES OF THE CAUSE OF ACTION, ARE Q UASHED BY THE TRIBUNAL PROCEEDINGS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE S AID ORDERS DATED 29/06/2011 AND ALSO PRESENT IMPUGNED ORDERS. ON FI NDING THAT THE APPEALS HAVE THE GENESIS IN THE REVIEW ORDERS, WHICH ARE AL READY QUASHED, WE ARE OF THE OPINION, THAT BOTH APPEALS OF THE REVENUE HAVE TO BE ALLOWED ON PRELIMINARY ARGUMENTS ITSELF. ACCORDINGLY, GROUNDS OF BOTH THE APPEALS OF THE REVENUE ARE DISMISSED . 5. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DISMISSED . ORDER PRONOUNCED IN THE COURT ON 05-10-2011. SD/- SD/- (I.C.SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 05-10-2011 ASHWINI ITA NO.799/PN/2010 & 800/PN/2010 (ASSESSMENT YEAR: 2004-05 & 2005-06) MANGALMURTI CONSTRUCTION, COPY TO:- 1) ASSESSEE 2) THE DCIT CIR.1,NASHIK 3) THE CIT(A) I NASHIK 4) THE CIT CONCERNED 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T .A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., PUNE