M/s GE Thermometrics India Private Limited, Bangalore V. DCIT, Bangalore

ITA 937/BANG/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57428 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 25-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARCHANA CHOWDHARY
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N. BARATHVAJA SANKAR, VICE-PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER STAY PETN.NO.142(BANG)/2011 (IN ITA NO.937(BANG)/2011) (ASSESSMENT YEAR: 2007-08) AND ITA NO.937(BANG)/2011 (ASSESSMENT YEAR: 2007-08) M/S. GE THERMOMETRICS INDIA PVT. LTD. (PRESENTY EXA THERMOMETRICS INDIA PVT. LTD.) NO.181, LAKE SHORE ROAD, BTM II STAGE, BANGALORE-560 076. PAN:AABCG 1778J VS. PETITIONER/ APPELLANT DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 11(3), BANGALORE. RESPONDENT ASSESSEE BY: SHRI TATA KRISHNA. RESPONDENT BY : SMT. ARCHANA CHOWDHARY. DATE OF HEARING: 06-01-2012 DATE OF PRONOUNCEMENT: 06-01-2012 O R D E R PER GEORGE GEORGE K, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-I, BANGALORE, DATED 22-9-2011. THE RELEV ANT ASSESSMENT YEAR IS 2007-08. 2. THE ASSESSEE IS A COMPANY ENGAGED IN TH E M ANUFACTURE AND SALE O F P TC & NTC THERMI ST ORS , PROBES AND SIMILA R PRODU CTS. TH E ASSESSEE F IL E D ITS RE TU R N OF ITA 937/B/2011 & SP 142/B/2011 PAGE 2 OF 5 IN C OM E FOR THE ASS E SSM E N T 2 007-0 8 O N 5 . 09 . 2007 DECLARING A TOT AL INCOM E OF ` .91 , 50,575/-. TH E S A ID RE T U RN W AS P R O C ESSED UNDER SECT I O N 143 (1) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] . SUBSEQUEN T L Y, T H E AO SEL EC TED TH E RETURN FO R THE SCRUT I N Y A S S E SSM E NT UND ER S E C TI O N 1 4 3 (3) B Y SER V IN G A N O T I CE UN D ER S ECTI O N 1 43 ( 2 ) D A TED 09.0 9 . 2 008 AND THER EA FTE R PASSED AN ORD ER OF ASS E SSM E NT UND ER S E C T IO N 14 3 (3) BY D I SALLO W IN G DEDUC TI O N UNDER SECTION 10B OF ` .11 , 2 2, 97,0 92/-. AGGRIEVED B Y THE SAID ASS E SSMENT ORDER , THE ASSESSEE FILED AN A PPEA L BEFORE THE CIT(A). IT WAS PLEADED BEFORE THE CIT(A) THAT THE CASE OF THE ASSESSEE WAS COVERED IN ITS FAVOUR B Y DECISION OF THE TRIBUNAL IN ITS OWN CAS E. HOWEVER , THE CIT(A) DISMISSED THE APPEAL. 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL RAISING THE FOLLOWING EFFECTIVE GROUNDS: 1) THE ORD E R OF TH E L EAR N E D COMMISSION E R I S NO T JUSTI FIE D IN L A W A ND ON FACTS AND CIRCUMST A N CE S OF TH E CAS E . 2) THE LEARNED COMMISSION E R (APPEALS) IS NOT JUSTIFIED IN WRONGLY UPHOLDING THE ORD E R OF THE LEARNED ASSESSING OFFICER IN INVOK I NG S ECTION 10B(9) BY REJECTING THE VARIOUS CONTENTIONS . RAISED BY THE APPELLANT . 3) THE LEARNED COMMISSIONER (APPEALS) I S N OT JUSTIFIED PRESSING INTO SERVICE THE PROVISIONS OF SECTION 10B(9) FOR THE ASSESSMENT YEAR 2007 -2008 WHEN THE SAID SUB-SECTION HAS BEEN OMITTED WITH EFFECT FROM THE ASSESSMENT Y EAR COMMENCING ON 01 . 04 .2 004. HE IS NO T JUSTIFIED IN READING AND APPLYING A NON-E X ISTENT PROVISION FOR THE PURPOSE OF DENYING THE BENEFIT OF DEDUCTION TO THE APPELLANT . ITA 937/B/2011 & SP 142/B/2011 PAGE 3 OF 5 4) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN NOT REASONABLY INFERRING THAT , UNDERTAKINGS ESTABLISHED ON OR AFTER 1 . 4.2000 ALONE WOULD BE HIT BY THE NEW RESTRICTION AND NOT THE UNDERTAKING ESTABLISHED EARLIER . HENCE, HE HAS FAILED TO APPRECIATE THAT, THE SAID RESTRICTION WOULD NOT BE APPLICABLE TO THE CASE OF THE APPELLANT AT ALL. 5) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN NOT CONSIDERING THE VARIOUS RULINGS GIVEN BY THE APEX COURT TO THE EFFECT THAT THE BENEFICIAL PROVISIONS SHOULD NOT BE READ SO AS TO FRUSTRATE THE BASIC OBJECT OF THE SAID PROVISIONS. THE LEARNED COMMISSIONER (APPEALS) HAS FAILED TO APPRECIATE THAT THE PRINCIPLES OF STRICT INTERPRETATION SHOULD BE FOLLOWED ONLY IN THE NORMAL CIRCUMSTANCES AND NOT IN EXTRANEOUS CIRCUMSTANCES WHERE APPLICATION OF THE SAID PRINCIPLE WOULD RESULT IN ABSURDITY. 6) T H E LEA RN E D COMMI SS IONER (APPEALS) IS NOT JUSTIFI E D IN N O T FOLLO WI N G TH E DEC ISI O N O F T H E H O NORABLE ITAT , BANGALOR E B E NCH I N TH E APP E LL A NT'S OWN CA S E IN ITA NOS . 257 & 258 (B A NG)/ 2 008 , D A T E D 30 . 05 . 2008, IN ITA NO. 97(BANG)/2008 , DAT E D 05.04 . 200 9 AN D ITA NO . 151(BANG)/2011 , DATED 05.06.2011 IN THE APPELLANT ' S O WN CAS E FOR THE AY 2003-04 & 2004- 05 , AY 2005-06 AND FOR AY 2006-07 , WH E REIN THE HONORABLE TRIBUNAL ALLOWED THE APPEAL AND HELD THAT THE FACTS OF CASE OF TH E APPELL A NT COMPANY DID NOT FALL WITHIN TH E M ISCHI E F OF SECTION 10B (9) . 7) TH E LEARNED COMMISSIONER (APPEALS)'S ACTION OF NOT FOLLOW I NG THE BINDING DECISION OF THE JURISDICTIONAL TRIBUNAL IS ILLEG A L A ND ARBITRARY AND IF PERMITTED WOULD RESULT IN MOCKERY OF JUSTICE . H I S ACTION OF REFUSING TO FOLLOW THE BINDING DECISION O F THE SUPERIOR TRIBUNAL DESPITE HIS ATTENTION HAVING BEEN INVITED TO THE CASES OF THE HONORABLE SUPREME COURT IN UNION OF INDIA VS. KAMLAKSHI FINANCE CORPORATION LTD. (1991) 55 E.L . T. 433 (SC) AND CIT VS. RALSON INDUSTRIES LTD (2007) 288 ITR 322 (SC) REQUIRES TO BE SET ASIDE AS ILLEGAL AN D IMPROPER. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERA TED THE SUBMISSIONS MADE BEFORE THE CIT(A) AND SUBMITTED TH AT THE CIT(A) IS NOT JUSTIFIED IN NOT FOLLOWING THE DECISI ON OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.257 & 258/BANG/20 08 DATED ITA 937/B/2011 & SP 142/B/2011 PAGE 4 OF 5 30-5-2008, ITA NO.97/BANG/2008 DATED 5-4-2009 AND I TA NO.151/BANG/2011 DATED 10-6-2011. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OT HER HAND, SUPPORTED THE FINDINGS/CONCLUSIONS OF THE FIRST APP ELLATE AUTHORITY. SHE ALSO SUBMITTED THAT THE ITAT ORDERS IN THE ASSE SSEES OWN CASES IN ITA NOS.257 & 258/BANG/2008 DATED 30-5-20 08, ITA NO.97/BANG/2008 DATED 5-4-2009 AND ITA NO.151/BANG/ 2011 DATED 10-6-2011 HAVE NOT ATTAINED FINALITY SINCE TH E REVENUE HAS FILED APPEALS BEFORE THE HONBLE HIGH COURT. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. WE FIND THAT THE ISSUE IS SQUARELY COVE RED BY THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA N OS.257 & 258(BANG)/2008 DATED 30-5-2008 FOR ASSESSMENT YEARS 2003-04 AND 2004-05 AND ITA NO.151(BANG)/2011 DATED 10-6-20 11 FOR ASSESSMENT YEAR 2006-07. COPIES OF ORDERS CITED SU PRA ARE PLACED ON RECORD. FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE FACTS CONSIDERED BY THE TRIBUNAL IN ITA NOS.257 & 258(BAN G)/2008 AND ITA NO.151/BANG/2011. HENCE, FOLLOWING THE ORDERS OF THE CO- ORDINATE BENCH OF THE TRIBUNAL, WE ALLOW THE ASSESS EES CLAIM U/S 10B OF THE ACT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA 937/B/2011 & SP 142/B/2011 PAGE 5 OF 5 7. SINCE THE APPEAL OF THE ASSESSEE IS ALLOWED, THE STAY PETITION FILED BY THE ASSESSEE IS DISPOSED OF AS IN FRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2012 . SD/- SD/- ( N.BHARAT H VAJA SANKAR ) VICE- PRESIDENT (GEORGE GEORGE K) JUDICIAL MEMBER PLACE : BANGALORE DATED: 6 TH JANUARY, 2012. EKS COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE