ANUPAMA B. SHETTY, L/H. OF K.H.P. SHETTY, MUMBAI V. I.T.O.-23 (2)-4, MUMBAI

ITA 8391/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9412 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 12-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER ITA NO.8391/MUM/2011(A.Y. 2004-05) ITA NO.8392/MUM/2011(A.Y. 2005-06) ITA NO.6957/MUM/2012(A.Y. 2006-07) ITA NO.8393/MUM/2011(A.Y.2007-08) ITA NO.8394/MUM/2011(A.Y. 2008-09) ANUPAMA S. SHETTY, LEGAL HEIR OF K.H.P. SHETTY, FLAT NO.B-25, GALA NAGAR, NAHUR ROAD, MULUND (W), MUMBAI- 400 080. PAN: AAUPS 5355C (APPELLANT ) VS. INCOME TAX OFFICER 23(2)(4), C-10, 3 RD FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. (RESPONDENT) APPELLANT BY : SHRI HARI S. RAHEJA RESPONDENT BY : SHRI AS GHAR ZAIN DATE OF HEARING : 19/02/2015 DATE OF PRONOUNCEMENT : 2 5/02/2015 ORDER PER I.P.BANSAL, J.M: ALL THESE APPEALS ARE FILED BY THE ASSESSEE BEING LEGAL HEIR OF K.H.P SHETTY IN ALL THESE APPEALS THE ASSESSEE IS CONTESTING NON -GRANTING OF DEDUCTION UNDER SECTION 80 IB OF THE INCOME TAX ACT, 1961 (THE ACT) . GROUNDS OF APPEAL IN ALL THESE APPEALS ARE IDENTICAL EXCEPT DIFFERENCE IN FI GURES. FOR ASSESSMENT YEAR 2004- 05 THE GROUNDS OF APPEAL READ AS UNDER: ITA NO.8391/MUM/2011 ETC. 2 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE LD . COMMISSIONER OF INCOME TAX (A) ERRED IN CONFIRMING THE DISALLOWANC E OF DEDUCTION U/S. 80 IB OF RS.9,66,204/- ON THE GROUND/S AS CONTAINED IN THE APPELLATE ORDER OR OTHERWISE. 2.1 FOR OTHER YEARS FIGURES ARE AS UNDER: ASSESSMENT YEAR AMOUNT (RS.) 2005-06 8,41,711/- 2006-07 29,98,970/- 2007-08 11,15,438/- 2008-09 3,39,875/- 2.2 THESE APPEALS ARE FILED IN SECOND ROUND. EARL IER LD. CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE AGAINST WHICH REVENUE HAD FILED APPEALS WHICH WAS DECIDED BY THE TRIBUNAL IN RESPECT OF A.Y 2004-05 O N 18/05/2009 IN ITA NO. 4680/MUM/2007. COPY OF THIS ORDER IS FILED AT PAGE 28 OF THE PAPER BOOK. THE TRIBUNAL HAD RESTORED BACK THE MATTER TO THE FILE O F AO FOR VERIFICATION OF THE CLAIM OF THE ASSESSEE THAT ENTIRE MACHINERY PURCHASED WAS NEW MACHINERY. PURCHASE AND USE OF NEW MACHINERY IS CONDITION PRECEDENT FOR GRA NT OF DEDUCTION UNDER SECTION 80 IB OF THE ACT. ACCORDING TO REVENUE SUCH CONDIT ION WAS NOT FULFILLED BY THE ASSESSEE, THEREFORE, ASSESSEE IS NOT ENTITLED TO GE T DEDUCTION UNDER SECTION 80 IB OF THE ACT. IT WILL BE RELEVANT TO REPRODUCE THE RELE VANT PORTION OF THE ORDER OF THE TRIBUNAL VIDE WHICH THE MATTER WAS RESTORED BACK TO THE FILE OF AO. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT ORDERS OF THE REVENUE AUTHORITIES. THE CASE OF THE REVENUE IS THAT THE AS SESSEE HAS FAILED IN DISCHARGING OF THE ONUS ABOUT THE FULFILLMENT OF THE CONDITION SPECIFI ED IN CLAUSE (II) OF SECTION 801B(2) OF THE ACT. THE CASE OF THE ASSESSEE IS THAT NON-TRACE ABILITY OF THE SUPPLIER IS SEPARATE FROM THE PURCHASE, INSTALLATION AND USE OF THE MACHINERY FOR THE PURPOSE OF THE BUSINESS. THESE FACTS ARE EVIDENCES BY PLETHORA OF EVIDENCES, SUCH AS SALES-TAX REGISTRATION, INSPECTION ITA NO.8391/MUM/2011 ETC. 3 REPORTS OF THE OFFICIALS OF THE DLC, VERIFICATION EXERCISES UNDERTAKEN BY THE BANKERS, WHO ARE THE FINANCIERS FOR THE PURCHASE OF MACHINE RY. 8.THE PROVISIONS OF CLAUSE (II) OF SUBSECTION (2) O F SECTION 801B IS RELEVANT AND READS AS UNDER. DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM CERT AIN INDUSTRIAL UNDERTAKINGS OTHER THAN INFRASTRUCTURE DEVELOPMENT UNDERTAKINGS. 80-LB (.1,).... (2) THIS SECTION APPLIES TO ANY INDUSTRIAL UNDERTA KING WHICH FULFILS ALL THE FOLLOWING CONDITIONS, NAMELY, - (I) (II) IT IS NOT FORMED BY THE TRANSFER TO A NEW BUS INESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE; (III) (IV). THERE ARE FOUR SUB CLAUSE UNDER SUBSECTION (2) PROV IDING VARIOUS CONDITIONS, WHICH ARE REQUIRED TO BE CUMULATIVELY SATISFIED. AMOUNT THEM, THE CLAUSE (II) PROVIDES FOR THE CONDITION THAT THE INDUSTRIAL UNDERTAKING IS NOT FO RMED BY THE TRANSFER OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE. AS THE DEDUC TION IS CLAIMED BY THE ASSESSEE, UNDOUBTEDLY, THE ONUS IS ON THE ASSESSEE TO PROVIDE THE RELEVANT BASIS FACTS, WHICH ARE RELIABLE AND STAND THE TEST OF THE SCRUTINY. 9. CONSIDERING THIS LEGAL POSITION AS WELL AS THE F ACTS OF THE CASE,, FOR RESOLVING THE PRESENT DISPUTE, WE NEED TO UNDERSTAND THE FOLLOWIN G PARTIES. THEY ARE: (I) THE MANUFACTURER OR FABRICATOR OR SUPPLIER OF THE NEW M ACHINERY OR PLANT; AND (II) THE ASSESSEE, WHO PURCHASED, INSTALLED AND USED THE SAM E FOR HIS BUSINESS PURPOSES. IT IS NOT CLEAR FROM THE FACTS OF THE CASE, IF THE ALLEGED MA CHINERY OR PLANT PURCHASED IS DIRECTLY MANUFACTURED BY THE SUPPLIER OR NOT. IF THE SUPPLIE R IS ALSO A FABRICATOR, HE MUST BE HAVING A FACTORY PREMISES FOR FABRICATION AND MANUF ACTURE OF THE ALLEGED MACHINERY. SO FAR AS THE SUPPIERS ARE CONCERN, IT IS FACT THAT TH EY ARE NOT NON-EXISTENT, PARTIES AS THEIR EXISTENCE IS CONFIRMED BY THE THIRD PARTIES SUCH AS SRI RAJENDHRA J SHAH AND. MEHTA INDUSTRIAL CORPORATION. IT IS ALSO A FACT THAT TH E ASSESSEE HAD APPROACHED TO THEM AND OBTAINED THE CONFIRMATIONS IN HIS FAVOUR, WHERE T HE SUPPLIERS HAVE ASSERTED THAT THEY SUPPLIED THE MACHINERY AND RECEIVED THE CONSIDERAT ION BY CHEQUENO.488483 DT 13.10.2003 OF THE BHARAT CO-OP. BANK LTD. FOR AN AM OUNT OF RS 6,08,400/-. NOTWITHSTANDING THE ONUS TO BE DISCHARGED BY THE AS SESSEE, CONSIDERING THE NON COOPERATIVE ATTITUDE OF THE SUPPLIERS, THE AO, WH O IS EMPOWERED BY VARIOUS PROVISIONS OF THE ACT, IS ALSO UNABLE TO EITHER REACH HIM OR O BTAIN THE CORRECT ADDRESS WITH OR WITHOUT THE CO- OPERATION AND ASSISTANCE OF THE ASS ESSEE. WE ARE UNABLE TO COMPREHEND AS TO HOW THE ASSESSEE APPROACHED THE SUPPLIERS SUC CESSFULLY AND NOT THE DEPARTMENTAL AUTHORITIES. AUTHORITIES. IN SO FAR AS THE ASSESSEE IS CONCERN, IT IS A FACT THAT HE FURNISHED COPIES OF THE PURCHASE BILLS, CONFIRMATION LETTER O F THE PURCHASES, PAYMENTS ARE MADE BY WAY CHEQUE ETC. HOWEVER, WE ARE UNDER TO APPRECIAT E AS TO HOW THE ITA NO.8391/MUM/2011 ETC. 4 PURCHASE BILLS 218/0304 DATED 1.10.2003 REFLECTS TH E ABOVE MENTIONED ADDRESS OF AUGUST 1997, HOW THE CONTRACT TO SUPPLY THE MACHINERY IS FINALIZED MERE BY A VISIT OF THE SUPPLIER TO THE ASSESSEE WITHOUT EXAMINING THE BONA FIDE OF THE SUPPLIER ETC. ON THE OTHER HAND, THE AO HAS STOPPED HIS INVESTIGATION WITH MER E ADDRESS VERIFICATION ONLY INSTEAD OF MAKING OTHER ENQUIRIES USING THE DETAILS FURNISHED BY THE ASSESSEE REGARDING THE SALES TAX REGISTRATION, REGISTRAR OF COMPANIES, BHARAT C O OP BANK LTD ETC. AO DID NOT UNDERTAKE THE SAME. 10. REGARDING THE FINDINGS IN THE IMPUGNED ORDER, W E ARE OF THE CONSIDERED OPINION THAT THE CIT(A) IS JUSTIFIED IN HOLDING THAT THE AO IS UNJUST IN HOLDING THAT THE MACHINERY IN QUESTION IS THE PREVIOUSLY USED ONE MERELY BASED ON THE NON- TRACEABLE SUPPLIERS. AT THE SAME, THERE IS NO FINDING IN THE IMPUGNED ORDER ON THE DISCHARGING OF THE ONUS BY THE ASSESSEE REGARDING T HE CORRECT ADDRESSES OF THE SUPPLIERS. PROVIDING UNVERIFIABLE INFORMATION OR UNVERIFIABLE BASIC FACTS DOES NOT AMOUNT TO DISCHARGING OF THE ONUS BY THE ASSESSEE. AT THE SAME TIME, AOS FAILURE TO MAKE USE OF THE CORRECT INFORMATION PROVIDED BY THE ASSESSEE IS ALSO NOT PREDICTED. 11. UNDER THESE CIRCUMSTANCES, AO HAS NO EVIDENCE IN HIS POSSESSION TO PIN POINT THAT THE MACHINERY OR PLANT IN QUESTION IS THE ONE PREVIOUSLY USED FOR ANY PURPOSE. AO HAS HELD IT SO BY INFERENCE AND THAT TO WHEN TH E ASSESSEE HAS FAILED TO SUBSTANTIATE THAT THE SAME IS NOT THE ONE PREVIOUSLY USED AND TH E ASSESSEE HAS FAILED TO PRODUCE THE SUPPLIER BEFORE HIM FOR EXAMINATION. FURTHER IT IS RELEVANT TO MENTION THAT THE INITIAL ONUS IS ON THE ASSESSE TO EVIDENCE THAT HE HAS FULFILLED THE SPECIFIED CONDITIONS BY FILING THE RELEVANT VERIFIABLE OR CREDIBLE INFORMATION. THEN, IT IS THE DUTY OF THE AO TO VERIFY THE VERACITY OF THE SAID DETAILS AND INFORMATION. IN CA SE THE INFORMATION SO SUPPLIED IS FOUND UNVERIFIABLE, THE ASSESSEE HAS TO CO-OPERATE WITH THE AO IN ESTABLISHING THE BONA FIDE OF THE TRANSACTIONS. 12. IN THE LIGHT OF THE ABOVE, CONSIDERING THE NON TRACEABLE SUPPLIER, WE ARE OF THE OPINION, THAT WHILE THE AO HAS NOT COMPLETED THE IN VESTIGATION, THE ASSESSE HAS FAILED TO DISCHARGE THE ONUS TO DEMONSTRATE THAT THE ASSESSEE HAS FULFILLED THE CONDITIONS SPECIFIED IN CLAUSE (II) ABOVE. THE CIT (A) HAS MISSED TO ADJ UDICATE THE CORE ISSUE OF DISCHARGING OF THE ONUS IN THE IMPUGNED ORDER. IN THE PROCESS, THE RELEVANT BASIC PARTICULARS SUCH WHO DESIGNED & FABRICATED THE ALLEGED MACHINERY, WHETHE R THE SAID MACHINERY IS ASSESSED TO EXCISE DUTY AND SALES TAX HOW THE SAID MACHINERY I S TRANSPORTED TO THE PREMISES OF THE ASSESSEE, DETAILS OF INSTALLATION CERTIFICATES ET C ARE NOT AVAILABLE ON THE RECORDS TO RESOLVE THE ISSUE. THESE FACTS SHALL DEMONSTRATE T HE NEWNESS OF THE MACHINERY. FOR THIS PURPOSE, THE ISSUE HAS TO BE REFERRED TO THE FILES OF THE AO FOR FRESH CONSIDERATION. AO SHALL COMPLETE THE INVESTIGATION AND BRING THE RELE VANT FACTS TO THE FACTS TO THE FILE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD. THUS , WE ARE OF THE CONSIDERED OPINION, THE ORDER OF THE CIT (A) HAS TO BE SET ASIDE. ACCOR DINGLY, THE GROUNDS OF THE REVENUE ARE SET ASIDE. 13. IN THE RESULT THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ITA NO.8391/MUM/2011 ETC. 5 3. THE ASSESSEE HAD PURCHASED FOLLOWING MACHINERY, WHICH ACCORDING TO ASSESSEE WAS NEW AND USED FOR THE PURPOSE OF MANUFA CTURING. THE DETAILS OF MACHINERY, AS PROVIDED IN THE ASSESSMENT ORDER IS A S UNDER: S.NO. INVOICE NO. DATE NAME & ADDRESS DESCRIPTION OF THE MACHINERY AMOUNT 1. 218/0304 1.10.03 MANSI TRADING PVT. LTD. PPP 500 PLASTIC EXTRUDER 6,08,400 2. 48 SA/03/04 9.10.03 SUJATA AIRCONTROL LTD. CHILLING PLANT-3 TON 72,800 3. 74 2.10.03 SAINATH ELECTRONICS CORPORATION 36 SILICON RUBBER ROLLER 44,980 3.1 IN PURSUANCE TO THE DIRECTIONS OF THE TRIBUNAL, THE AO IN THE IMPUGNED ASSESSMENT ORDER IN RESPECT OF A.Y. 2004-05, WHICH IS PASSED ON 14/12/2010 HAS DISCARDED THE EVIDENCE AND HAS MENTIONED THAT THE ON GIVING OPPORTUNITY DURING THE ASSESSMENT PROCEEDING THE ASSESSEE WAS UNABLE T O PRODUCE THE PARTY. THE QUESTION WAS NOT OF THE EXISTENCE OF MACHINERY, BUT THE QUESTION WAS THAT WHETHER THE MACHINERY INSTALLED WAS OLD OR NEW. THE SUBMIS SIONS OF THE ASSESSEE BEFORE THE AO DURING THE IMPUGNED ASSESSMENT PROCEEDINGS, AS ARE REPRODUCED IN THE ASSESSMENT ORDER, READ AS UNDER: WE ARE SUBMITTING THE FOLLOWING DETAILS TO SUPPORT OUR CONTENTION THAT WE HAVE INSTALLED NEW MACHINERY AT THE TIME OF COMMENCEMENT OF THE BU SINESS. 1. COPY OF THE PURCHASE INVOICE NO.218/03-04 DATED 01-10-2003 FROM M/S. MANASI TRADING PUT. LTD. FOR RS.6,08400/-. IT IS TO BE MEN TIONED HERE THAT THE B.S.T AND C.S.T NOS. ARE MENTIONED IN THE SAID INVOICE. THESE PROVE THAT THE SUPPLIER WAS ASSESSED TO SALES TAX. M/S.MANASI TRADING PUT. LTD IS A TRADING COMPANY AND NOT THE MANUFACTURER HENCE THE EXCISE REGISTRATION NUMBER IS NOT MENTION ED IN THE INVOICE. A COPY OF THE C FORM IS ALSO ENCLOSED WHICH CONFIRMS THE MACHINERY IS ASSESSED TO SALES TAX. CONFIRMATION LETTER DATED 14-11-2006 FROM M/S. MANA SI TRADING PUT. LTD IS ENCLOSED FOR YOUR READY REFERENCE WHICH RECONFIRMS THAT THEY HAV E SUPPLIED NEW MACHINERY TO US. ITA NO.8391/MUM/2011 ETC. 6 2. COPY OF THE TRANSPORT BILL ISSUED BY BRIGHT TRA NSPORT CO IS ENCLOSED IN SUPPORT OF THE TRANSPORTATION OF THE MACHINERY TO OUR PREMISES I N SILVASSA. 3. COPY OF THE INSTALLATION CERTIFICATE DATED 04.10 .2003 ISSUED BY M/S. RONAK ELECTRONICS. THE SAID REPORT CONFIRMS INSTALLATION AND WIRING WO RK OF THE MACHINERY WAS COMPLETED ON 03.10.2003. 4. COPY OF THE LOADING/UNLOADING BILL NO. 158/04 DA TED 02.10.2003 ISSUED BY VIJAY D MISHRA (LOADING / UNLOADING CONTRACTOR). THIS BILL CONFIRMS THAT THE MACHINERY WAS UNLOADED AT OUR PREMISES IN SILVAS. 5. COPY OF SSI REGISTRATION CERTIFICATE ISSUED BY DEPARTMENT OF INDUSTRY, DADRA AND NAGAR HAVELI U.T. THE SAID CERTIF1ATE CONFIRMS THAT THE PERMANENT SSI REGISTRATION WAS GRANTED ONLY AFTER DUE VERIFICATION OF THE REQUIR EMENT OF THE GUIDELINES. IT IS FURTHER CONFIRMED BY THEM THAT THE MACHINERIES AS PER APPE NDIX -B ARE NEW MACHINERIES. OUR CLAIM THAT THE NEW MACHINERY WAS INSTALLED HAS BEEN CONFIRMED BY THE CERTIFICATE ISSUED BY THE GOVERNMENT DEPARTMENT. 6. COPY OF THE INSPECTION REPORT DATED 10.10.2003 OF BHARAT CO-OP. BANK (MUMBAI) LTD IS ENCLOSED FOR YOUR KIND REFERENCE. THE SAID INSP ECTION REPORT CONFIRMS THAT ALL THE NEW MACHINERY WAS INSTALLED AT OUR PREMISES. THE BANK OFFICERS HAVE CARRIED OUT THE INSPECTION AS PER THE PROCEDURE BEING FOLLOWED BY THEM FOR THE VERIFICATION OF AUTHENTICITY OF THE NEW MACHINERY INSTALLED BY THE BORROWER. FROM THE ABOVE DETAILS IT IS PROVED THAT WE HAD INS TALLED THE NEW MACHINERY AT OUR PREMISES IN SILVASSA. THE EVIDENCES FURNISHED BY US ARE THIRD PARTY EVIDENCES AND EVEN THE GOVERNMENT DEPARTMENTS HAVE CONFIRMED THE INSTA LLATION OF NEW MACHINERY IN OUR UNDERTAKING. THE DOCUMENTS TO BE PRODUCED AS DIRECT ED BY THE HONBLE ITAT HAVE BEEN DULY FURNISHED FOR YOUR KIND PERUSAL. APART FROM TH E EVIDENCES CALLED FOR BY THE HONBLE ITAT, WE HAVE ALSO FURNISHED FURTHER DOCUMENTARY EV IDENCES TO AUGMENT OUR CLAIM. IN VIEW OF THE ABOVE, WE SUBMIT THAT THE MACHINERY SUPPLIED BY M/S MANASI TRADING PVT. LTD. WAS NEW MACHINERY AND THE ASSESSEE HAD COMPLI ED WITH ALL THE REQUIRED CONDITIONS AS LAID DOWN U/S 80-IB(2) OF THE I.T ACT. ACCORDING LY YOUR HONOR IS REQUESTED TO ALLOW OUR CLAIM FOR DEDUCTION U/S 801B OF THE I T ACT. I F YOUR HONOR REQUIRES ANY FURTHER CLARIFICATIONS WE WILL BE PLEASED TO FURNISH THE S AME. 3.2 REFERRING TO THE AFOREMENTIONED SUBMISSIONS, TH E AO OBSERVED THAT THE PRIMARY ONUS IS ON THE ASSESSEE TO ESTABLISH THAT T HE MACHINERY PURCHASED AND INSTALLED BY THE ASSESSEE IS NEW AND HAS NEVER BE EN USED BY ANY PERSON PRIOR TO THE USE BY THE ASSESSEE. THE AO HAS SUMMARIZED ABO VE CONTENTIONS OF THE ASSESSEE AND DISCARDED THE SUBMISSIONS AS FOLLOWS: ITA NO.8391/MUM/2011 ETC. 7 THE ASSESSEES SUBMISSION AND THE DOCUMENTS WERE P ERUSED. IT IS SEEN FROM THE DETAIL SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS FUR NISHED THE SAME DOCUMENTARY EVIDENCES WHICH WAS PREVIOUSLY SUBMITTED. THE PRIMA RY ONUS IS ON THE ASSESSEE TO ESTABLISH THAT THE MACHINERY PURCHASED AND INSTALLE D BY HIM IS NEW AND NEVER BEEN USED BY ANY OTHER PERSON PRIOR TO THE USAGE BY THE ASSES SEE. THE EVIDENCES PRODUCED BY THE ASSESSEE ARE SUMMARIZ ED AS UNDER: I. REGARDING FIRST ISSUE WHO DESIGNED AND FABRICATE D THE ALLEGED MACHINERY , ASSESSEE COULD NOT PROVE AND DISCHARGED ITS ONUS AS ASSESSEE STATED THAT M/S.MANASI TRADING PUT. LTD IS A TRADING COMPANY AND NOT THE MANUFACTURER. DUE TO INSUFFICIENT DATA AND ONUS IS ON ASSESSEE TO PROVIDE NAME AND ADDRESS OF THE MANU FACTURER, ASSESSEE COULD NOT PROVE THE NEWNESS OF MACHINERY WHICH CAN BE VERIFIED BY T HE DATE OF MANUFACTURE OF THE MACHINERY. THE NEWNESS OF MACHINERY COULD NOT BE ES TABLISHED ON THIS FACT. 2. WHETHER THE MACHINERY IS ASSESSED TO EXCISE DUTY AND SALES TAX. THE ASSEEE STATED HAT M/S.MANASI TRADING PVT. LTD I S A TRADING COMPANY AND NOT THE MANUFACTURER HENCE THE EXCISE REGISTRATION NUMBER I S NOT MENTIONED IN THE INVOICE. A COPY OF THE C FORM IS ALSO ENCLOSED WHICH CONFIRM S THE MACHINERY IS ASSESSED TO SALES TAX. THE ASSESSEE HAS FURNISHED THE SALES TAX DETAI LS OF M/S. MANASI TRADING PVT. LTD. ALONG WITH COPY OF C FORM ISSUED BY THE ASSESSEE. IN THIS NAME AND ADDRESS OF THE SELLER IS NOT MENTIONED NOR HIS REGISTRATION NO ON THE C F ORM. II. THE ASSESSEE HAS STATED THAT M/S. MANASI TRADIN G PVT. LTD IS A TRADER AND HENCE EXCISE DUTY IS NOT APPLICABLE TO THEM. HENCE, ON THIS FACT , NEWNESS OF MACHINERY COULD NOT BE ESTABLISHED. 3. HOW THE MACHINERY IS TRANSPORTED TO THE PREMISES IN THIS REGARD, VII. THE ASSESSEE HAS FURNISHED THE TRANSPORT BILL ISSUED BY BRIGHT TRANSPORT CO WAS ENCLOSED IN SUPPORT OF THE TRANSPORTATION OF THE MA CHINERY TO ASSESSEES PREMISES IN SILVASSA VIII. THE ASSESSEE HAS FURNISHED BILL OF LOADING AN D UNLOADING CHARGES PAID TO SHRI VIJAY D. MISHRA BY THE ASSESSEE FOR UNLOADING THE MACHINE RY AT SILVASSA. HERE IT IS NECESSARY TO CLARIFY THAT THE BONE OF CONTENTION IS NOT THE E XISTENCE OF MACHINERY BUT WHETHER THE MACHINERY TRANSPORTED IS OLD OR NEW. 4. DETAILS OF INSTALLATION CERTIFICATES. IN THIS RE GARD, IX. THE ASSESSEE HAS FURNISHED THE INSTALLATION CER TIFICATE DATED 04.10.2003 ISSUED BY M/S. RONAK ELECTRONICS. HERE IT IS NECESSARY TO CLARIFY THAT THE BONE OF CONTENTION IS NOT THE EXISTENCE OF MACHINERY BUT WHETHER THE MACHINERY IN STALLED IS OLD OR NEW. THE CLAIM OF DEDUCTION U/S. 80 IB OF THE I.T ACT IS CONSIDERED FOR DISALLOWANCE AS ASSESSEE FAILED TO ESTABLISH THAT THE MACHINERY INS TALLED IS NEW AS REQUIRED BY THE STATUTE. VII)THE ASSESSEE CLAIM THAT THE BANKER ALLOW LOAN F ACILITY ONLY AFTER INSPECTION OF MACHINERY. IT IS WELL KNOWN FACT THAT THE BANKER AL LOW LOAN ONLY ON THE STRENGTH OF BILLS SUBMITTED BEFORE THEM. HOWEVER EVEN IF IT IS PRESUM ED THAT THE BANKERS HAVE PHYSICALLY ITA NO.8391/MUM/2011 ETC. 8 VERIFIED THE MACHINERY, IT DOES NOT MEAN THAT THE M ACHINERY PURCHASED IS A NEW ONE AS ENVISAGED IN THE PROVISIONS OF LAW.. VIII) CST IS CHARGED ON THE BILL AND NOT ON VERIFIC ATION OF MACHINERY LEAVE ASIDE WHETHER THE MACHINERY IS OLD OR NEW. THUS MERELY BECAUSE CS T/BST NO. IS PROVIDED WOULD NOT MEAN THAT THE MACHINERY INSTALLED IS A NEW ONE. THUS ALL THE CONTENTIONS MADE AFRESH BY THE ASSESSE E WILL BE OF NO HELP TO THE ASSESSEE AS IT DOES NOT LEND ANY SUPPORT TO HIM IN WHATSOEVER M ANNER AS THE ASSESSEE HAS FAILED TO PRODUCE THE PARTIES FROM WHOM HE CLAIMED TO HAVE PU RCHASED THE MACHINERY OR DETAILS OF MANUFACTURER AND EXCISE REGISTRATION OF MANUFACTURE R SO AS TO PROVE THAT THE SAME IS NEW AND HAS NOT BEEN PUT TO USE EARLIER. 3.3 THUS, THE AO HAS HELD THAT THE DOCUMENTARY EVID ENCE SUBMITTED BY THE ASSESSEE DOES NOT SUPPORT THE CONTENTION THAT THE MACHINERY PURCHASED BY THE ASSESSEE WAS NEW AND AGAIN DISALLOWANCE HAS BEEN MA DE WHICH IS CONFIRMED BY LD. CIT(A). THE ASSESSEE IS AGGRIEVED, HENCE, HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. 4. LD. AR AFTER NARRATING THE FACTS, DREW OUR ATTEN TION TOWARDS SUBMISSIONS MADE BEFORE AO VIDE LETTER DATED 16/10/2009, COPY O F WHICH IS FILED AT PAGES 96- 97 OF THE PAPER BOOK. ALONG WITH THE SAID LETTER F OLLOWING EVIDENCES WERE FILED. 1. COPY OF THE BILL FOR NEW MACHINE PURCHASED FR OM MANASI TRADING PVT. LTD. 2. COPY OF LORRY RECEIPT FOR TRANSPORTATION OF MAC HINERY TO SILVASSA. 3. COPY OF BILL FOR UNLOADING AND LIFTING OF MACHI NE TO THE PREMISES. 4. COPY OF INSTALLATION CERTIFICATE ISSUED BY THE MACHINE INSTALLER. 5. COPY OF LETTER ISSUED BY THE BHARAT CO-OP. BAN K LTD., REGARDING CREDIT FACILITY AVAILED FROM THEM FOR NEW MACHINERIES PURCHAS ED AND PAYMENT MADE TO SUPPLIERS. 6. COPY OF BANK STATEMENT IN SUPPORT OF CLEARING O F CHEQUES IN FAVOUR OF ITA NO.8391/MUM/2011 ETC. 9 SUPPLIERS OF NEW MACHINERIES. 7. COPY OF SSI REGISTRATION CERTIFICATE ISSUED BY DEP. OF INDUSTRY, DEP. OF INDUSTRY, DADRA AND NAGAR HAVELI, UT CONFIRMING THE INSTALLATION OF NEW MACHINERIES IN APPENDIX B. 8. COPY OF C FORM ISSUED TO THE SUPPLIER OF MACHI NERY M/S. MANASI AS EVIDENCE OF MACHINERY ASSESSED TO SALE TAX. 9. COPY OF SALES TAX EXEMPTION CERTIFICATE ISSUED BY SALES TAX DEPARTMENT OF DADRA AND NAGAR HAVELI, U.T, SILVASSA. KINDLY NOTE THAT THE ADMINISTRATION OF DADRA AND NA GAR HAVELI, U.T ISSUES SSI REGISTRATION AND SALES TAX EXEMPTION CERTIFICATE ON LY AFTER CONFIRMING THE NEW INDUSTRIAL UNIT AND INSTALLATION OF NEW MACHINERIES . 4.1 LD. AR FURTHER REFERRED TO PAGE 92 OF THE PAPER BOOK, WHEREIN VIDE LETTER DATED 14/11/2006, M/S. MANASI TRADING PVT. LTD. HA S WRITTEN TO THE AO THAT THEY HAD SUPPLIED P.P.P 500 PLASTIC EXTRUDER MACHINERY TO THE ASSESSEE. BILL NUMBER ETC. WERE ALSO MENTIONED AND IT IS CONFIRMED THAT T HEY HAVE RECEIVED PAYMENT BY CHEQUE DRAWN ON BHARAT CO-OPERATIVE BANK MUMBAI LT D. ALONG WITH THE SAID LETTER COPY OF BILL WAS ALSO SENT TO THE AO. AT P AGE 94 OF LETTER DATED 26/3/2007, WRITTEN BY BHARAT CO-OPERATIVE BANK MUMBAI LTD., TO THE ASSESSEE CONFIRMED THAT NEW MACHINERY WAS INSTALLED IN THE FACTORY OF THE A SSESSEE. AT PAGE-95 OF LETTER DATED 23/2/2007, WRITTEN BY ADMINISTRATION OF DADRA & NAGAR HAVELI (UT) (DEPARTMENT OF INDUSTRY, DISTRICT INDUSTRIAL CENTER , SILVASSA) IN WHICH IT HAS BEEN CONFIRMED THAT IN REFERENCE TO THE LETTER DATED 10/ 2/2007 WRITTEN BY THE ASSESSEE TO THEM, THE ASSESSEE HAD OBTAINED THE PERMANENT SSI REGISTRATION NO.26/01/03032 DATED 29/12/2004 FOR MANUFACTURE OF PLAIN & PRINTE D PLASTIC BAGS & ROLLS AND IT ITA NO.8391/MUM/2011 ETC. 10 IS ALSO MENTIONED THAT THE CERTIFICATE OF PERMANENT SSI REGISTRATION TO UNIT WAS GRANTED AFTER DUE VERIFICATION OF THE REQUIREMENT O F THE GUIDELINES. THEREFORE, THE DEPARTMENT CONFIRMED THAT THE MACHINERY AS PER APPE NDIX-B TO THE CERTIFICATE OF PERMANENT SSI REGISTRATION ARE FOR NEW MACHINERY. THE SAID LETTER IS SIGNED BY GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, SILVAS SA. AT PAGE 99 OF THE PAPER BOOK, COPY OF GR IN THE NAME OF BRIGHT TRANSPORT C OMPANY, DATED 1/8/2003 IS FILED VIDE WHICH THE MACHINERY WAS TRANSPORTED. A T PAGE 101 LETTER WRITTEN BY BANK TO THE ASSESSEE CERTIFYING THAT ASSESSEE HAD PURCHASED CAPTIONED MACHINERY AND IT IS CERTIFIED THAT AFTER VISITING THE PREMIS ES OF THE ASSESSEE, IT WAS FOUND THAT THESE NEW MACHINERY WAS INSTALLED AT THE FACTORY OF THE ASSESSEE. AT PAGE 102 BILL ISSUED BY VIJAY D. MISHRA DATED 2/10/2003, W HICH IS REGARDING INSTALLATION OF THE MACHINERY ON THE BILLED ADDRESS HAS ALSO BEEN M ENTIONED. AT PAGE 103 OF THE LETTER ISSUED BY M/S. RONAK ELECTRONICS DATED 4/10/ 2003, MENTIONED THAT ON 3/10/2003 INSTALLATION WAS DONE ALONG WITH NECESSAR Y WIRING FOR MOTOR HEATER AND THERMOCOUPLE BETWEEN PANEL AND MACHINERY. AT PAGE 104 TO 108, COPY OF APPLICATION FOR OBTAINING PERMANENT REGISTRATION AS SSI UNIT. AT PAGE 115 COPY OF LETTER DATED 21/12/2009 WRITTEN BY THE BANK TO THE AO. IT WILL BE RELEVANT TO REPRODUCE THE CONTENTS OF THE ABOVE LETTER, WHICH A RE AS UNDER: TO DR. PAMOD SAHAKAR, INCOME TAX OFFICER, WARD 23(2)-4, MUMBAI. 205-C-10, PRATYAKSHA KAR BHAVAN, 2 ND FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 051. SIR, SUB: SANCTION OF TERM LOAN TOWARDS PURCHASE OF NEW MACHINERY TO SHRI K.H.P. ITA NO.8391/MUM/2011 ETC. 11 SHETTY PROPRIETOR OF SIDDHARTH PLASTICS) REF: YOUR LETTER NO.ITO 23(2)-4/KHPS/2009-10 DATED 07.12.2009. KINDLY REFER TO THE ABOVE WE HAVE RECEIVED YOUR ABOVE REFERRED LETTER ON 18 TH DECEMBER, 2009, IN THIS REGARD WE HAVE TO STATE THAT BEFORE SANCTION OF TER M, LOAN TO SHRI K.H.P. SHETTY (PROPRIETOR OF SIDDHARTH PLASTICS) OUR OFFICER HA VE VISITED THE FACTORY PREMISES SITUATED AT 24, AMLI INDL. ESTATE-II, PLOT AT SURVE Y NO.906/3, 66, K.V. POWER STATION SILVASSA 396 230. AS PER THE PROCEDURE FOLLOWED BY THE BANK, OUR OFFICERS HAVE INSPECTED THE PREMISES ON 9 TH OCTOBER 2003 AND VERIFIED ALL THE NEW MACHINERIES INSTALLED THEREIN. THE COPY OF THE VISIT REPORT IS ENCLOSED HEREWITH F OR YOUR PERUSAL. WE HOPE THE ABOVE INFORMATION WILL SUFFICE YOUR REQ UIREMENTS. THANKING YOU, SD/- SR.MANAGER, ANDHERI (EAST) BRANCH. AT PAGE 116, COPY OF INSPECTION REPORT SUBMITTED BY SR. MANAGER OF THE BANK IS FILED AND THE CONTENDS OF THIS LETTER ARE REPRODUC ED BELOW: DATE: 10 TH OCTOBER,2003 INSPECTION REPORT INSPECTION OF M/S.SIDDHARTH PLASTIC (PROPRIETOR OF MR. K.H.PRABAKAR SHETTY) FACTORY PREMISES SITUATED AT 24, AMIL INDL. ESTATE-II, PLOT AT SURV EY NO.906/3, 66, K.V.POWER STATION, SILVASSA 396230. WE HAVE INSPECTED PREMISES AND ALL NEW MACHINERIES SITUATED AT SAID UNIT DETAILS AS FOLLOWS: 1) M/S.MANSHI TRADING PVT. LTD. - P P EXTRUDER MACHINE 2) M/S. SUJATA AIR CONTACT ENGG. - A IR COOLER CHILLING MACHINE 3) M/S. SAINATH ELECTRONIC - CARONA TREATER MACHINE. FOR THE BHARAT CO-OP BANK (MUMBAI) LIMITED ITA NO.8391/MUM/2011 ETC. 12 SD/- SR.MANAGER, ANDHERI (EAST) BRANCH. 4.2 REFERRING TO AFOREMENTIONED EVIDENCES IT WAS SU BMITTED BY LD. AR THAT DEPARTMENT OF INDUSTRIES AND BANK ITSELF HAS CERTIF IED THE FACT THAT THE MACHINERY INSTALLED IN THE FACTORY OF THE ASSESSEE WAS NEW A ND THE SAME SHOULD HAVE BEEN ACCEPTED BY THE AO AND LD. CIT(A). IT WAS SUBMITTE D THAT BOTH THESE AGENCIES ARE INDEPENDENT PARTIES AND CREDIBILITY OF THESE EVIDEN CES CANNOT BE DOUBTED. IT WAS SUBMITTED THAT, IN VIEW OF THESE EVIDENCES FILED BY THE ASSESSEE, IT HAS TO BE HELD THAT ASSESSEE HAS PROVED BEYOND DOUBT THAT THE MAC HINERY INSTALLED IN THE PREMISES OF THE ASSESSEE WAS NEW, THEREFORE, THE ASSESSEE IS ENTITLED TO GET DEDUCTION UNDER SECTION 80 IB OF THE ACT. 5. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR TH AT DESPITE THE OPPORTUNITIES GIVEN TO THE ASSESSEE, IT COULD NOT BE PROVD THAT THE MACHINERY INSTALLED IN THE PREMISES WAS NEW. IN ABSENCE OF SUCH PROOF, HE SUB MITTED THAT THE ASSESSEE CANNOT BE SAID TO BE ENTITLED FOR DEDUCTION UNDER SECTION 80 IB. RELYING UPON THE ORDER PASSED BY AO AS WELL AS LD. CIT(A) IT WAS PLE ADED BY LD. DR THAT ASSESSEE HAS BEEN RIGHTLY BEEN HELD TO BE DISENTITLED FOR DE DUCTION. 6. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE BEEN CAREFULLY CONSIDERED. RIGHT FROM BEGINNING, IT IS THE CASE O F THE ASSESSEE THAT THE MACHINERY INSTALLED IN ITS PREMISES IS NEW. IT IS BECAUSE THAT ASSESSEE COULD NOT PRODUCE THE PARTIES FROM WHOM THE ASSESSEE HAD PURCHASED THESE MACHINERY, THE REVENUE IS DOUBTING ABOUT THE NEWNESS OF THE IMPUGNED MACHINE RY. THE EVIDENCE FURNISHED BY THE ASSESSEE TO SUPPORT ITS CONTENTION THAT MACH INERY IS NEW INCLUDES EVIDENCE FROM THE AGENCIES WHICH CANNOT BE SAID TO BE INTER ESTED PARTIES WHO WILL SUPPORT THE CONTENTION OF THE ASSESSEE. ONE OF SUCH EVIDEN CE IS IN THE SHAPE OF CERTIFICATE ITA NO.8391/MUM/2011 ETC. 13 GIVEN BY THE DEPARTMENT OF INDUSTRIES, VIDE THEIR C ERTIFICATE DATED 23/2/2007. IT HAS CLEARLY DESCRIBED THAT CERTIFICATE OF PERMANENT SSI REGISTRATION TO THE ASSESSEE WAS GRANTED AFTER DUE VERIFICATION OF THE REQUIRED GUIDELINE AND THE MACHINERY INSTALLED BY ASSESSEE IS NEW MACHINERY. COPIES OF SUCH CERTIFICATES HAVE BEEN FILED AT PAGES 95 TO 109 OF THE PAPER BOOK AND ALSO REPRODUCED ABOVE. IF IT IS THE CASE OF THE REVENUE THAT SUCH CERTIFICATE WAS WRON G, THEN REVENUE COULD EXAMINE THE SIGNATORY OF THE SAID LETTER, WHO IS GENERAL M ANAGER, DEPARTMENT OF INDUSTRIES CENTER, DADRA & NAGAR HAVELI SILVASA. IN THE PRESE NT CASE THE REVENUE HAS NOT DONE ANYTHING TO PROVE THAT THE CERTIFICATE GRANTE D BY DEPARTMENT OF INDUSTRIES WAS EITHER INCORRECT OR FALSE. THE RELEVANT PARA O F THE SAID CERTIFICATE IS REPRODUCED BELOW. THUS, THE CERTIFICATE OF PERMANENT SSI REGISTRATIO N TO UNIT WAS GRANTED AFTER DUE VERIFICATION OF THE REQUIREMENT OF THE GU IDELINE. THE DEPARTMENT THEREFORE CONFIRM THAT THE MACHINERIES AS PER APPEN DIX-B TO THE CERTIFICATE OF PERMANENT SSI REGISTRATION ARE NEW MACHINERIES. 6.1 THE SECOND EVIDENCE IS IN THE SHAPE OF CERTIFI CATE GRANTED BY THE BANK, COPY OF WHICH IS FILED AT PAGES 115-116 OF THE PAPER BOO K. THE RELEVANT PORTIONS HAVE ALREADY BEEN REPRODUCED IN THE ABOVE PART OF THIS O RDER IN PARA 4.1. THE BANK, AFTER GETTING INSPECTION REPORT FROM ITS OFFICIALS HAS GI VEN THE CERTIFICATE TO THE ASSESSEE THAT NEW MACHINERY WAS INSTALLED. IN VIEW OF AFORE MENTIONED TWO EVIDENCES, UNLESS SOME CONTRARY MATERIAL IS BROUGHT ON RECOR D, IT CANNOT BE SAID THAT THE ASSESSEE DID NOT INSTALL NEW MACHINERY. THE SUM AN D SUBSTANCE OF THE MATTER IS THAT WHETHER ON THE BASIS OF EVIDENCES FILED BY THE ASSESSEE, CAN IT BE SAID THAT THE ASSESSEE DID NOT INSTALL NEW MACHINERY SO AS TO MAK E IT DISENTITLED FOR DEDUCTION UNDER SECTION 80 IB OF THE ACT. AFTER PERUSING THE EVIDENCES FILED BY THE ASSESSEE, WE ARE OF THE OPINION THAT THE ASSESSEE HAS SUBMIT TED AMPLE EVIDENCE TO SUPPORT ITS CASE REGARDING INSTALLATION OF NEW MACHINERY FO R THE PURPOSES OF GETTING ITA NO.8391/MUM/2011 ETC. 14 DEDUCTION UNDER SECTION 80 IB. WE, THEREFORE, HOLD THAT THE DEDUCTION CANNOT BE DENIED TO THE ASSESSEE ON THE GROUND THAT ASSESSEE DID NOT PROVE THAT MACHINERY INSTALLED BY IT WAS NEW. 6.2 IN VIEW OF ABOVE DISCUSSION, WE REVERSE THE ORD ER PASSED BY LD. CIT(A) AND HOLD THAT THE MACHINERY INSTALLED BY THE ASSESSEE W AS NEW AND AS NO OTHER CONDITION FOR GRANT OF DEDUCTION UNDER SECTION 80 I B HAS BEEN HELD TO BE VIOLATED BY THE ASSESSEE, THE ASSESSEE IS ENTITLED TO GET DE DUCTION UNDER SECTION 80 IB. WE DIRECT THE AO TO ALLOW DEDUCTION UNDER SECTION 80 I B OF THE ACT TO THE ASSESSEE IN RESPECT OF ALL THE YEARS. 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEE ARE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 25 /02/2015 ! ' #$% & '() 25/02/2015 $ ' * + SD/- SD/- ( /CHANDRA POOJARI ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; '( DATED 25/02/2015 ! ! ! ! ' '' ' ,-. ,-. ,-. ,-. /.%- /.%- /.%- /.%- / COPY OF THE ORDER FORWARDED TO : 1. 01 / THE APPELLANT 2. ,201 / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. .4* ,-( , , / DR, ITAT, MUMBAI 6. *5 6 / GUARD FILE.