ITO, Ward - 8(3), Kolkata, Kolkata V. M/s. Farseen Rubber Industries Ltd., Kolkata

ITA 960/KOL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6655 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 29-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2010
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Assessee Lawyers: M P THARD
• Section: 80IB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND ! ! ! ! , '# SHRI AKBER BASHA, ACCOUNTANT MEMBER $ $ $ $ / ITA NO. 960 /KOL/2010 %& '(/ ASSESSMENT YEAR : 2004-05 (*+ / APPELLANT ) A,C.I.T., CIRCLE-7, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S. FARSEEN RUBBER INDUSTRIES LTD., KOLKATA (PAN: AAACF 3593 Q) *+ / 0 '/ FOR THE APPELLANT: SHRI A.K.PRAMANIK -.*+ / 0 '/ FOR THE RESPONDENT: SHRI M.P.THARD '! / ORDER ( (( ( ! ! ! !) )) ), , , , '# PER SHRI AKBER BASHA, AM THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DAT ED 18.02.2010 OF THE CIT (A)-VIII, KOLKATA PERTAINING TO ASSESSMENT YEAR 200 4-05. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE AR E AS UNDER:- 1. THAT THE LD. CIT(A) ERRED ON FACTS AND CASE AND IN LAW IN HOLDING THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 80IB AMOUNT ING TO RS.31,32,087/- DESPITE THE FACT THAT FORM NO.10CCB WAS NOT SUBMITT ED ALONG WITH THE RETURN OF INCOME. 2. THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN GRANTING RELIEF TO THE ASSESSEE IN VIEW OF THE FACT THAT AS PER SECTION 80IB READ WITH SECT ION 80IA(7) THE REQUIREMENT OF SUBMITTING FORM 10CCB ALONG WITH THE RETURN OF I NCOME IS AN ABSOLUTE ONE AND CANNOT BE CONSTRUED OTHERWISE. 3. THAT THE APPELLANT BEGS THE LIBERTY TO ADD, DELE TE, ALTER, MODIFY OR TAKE NEW GROUNDS OF APPEAL. 2 3. THE EFFECTIVE GROUNDS OF THE APPEAL RAISED BY T HE REVENUE IS WHETHER THE CIT(A) IS RIGHT IN ALLOWING DEDUCTION UNDER SECTION 80IB OF THE ACT AMOUNTING TO RS.31,32,087/- DESPITE THE FACT THAT FORM NO.10CCB WAS NOT SUBMITTED ALONG WITH THE RETURN OF INCOME. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER MADE THE ORIGINAL ASSESSMENT UNDER SECTION 254/143(3) OF THE IT ACT. IT IS CASE OF THE DEPARTMENT THAT THE ASSESSEE DID NOT FURNISH THE REQUIRED AUDITORS CERTIFICATE IN FORM 10CCB ALONG WITH THE RETURN OF INCOME. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS THE ASSESSING OFFICER, AFTER EXAMINING THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB OF THE IT ACT, REJECTED THE CLAIM OF DEDUCTION UNDER SECTION 80IB OF THE ACT FOR NON FURNISHING OF THE REQUIRED CERTIFICATE IN FORM 10CCB ALONG WITH THE R ETURN OF INCOME. 4.1. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFIC ER, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT (A). THE CIT (A) HELD THAT TH IS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE ITAT B BE NCH, KOLKATA IN ITS ORDER IN ITA NO.1809/KOL/2006 DATED 29.3.2007 IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003- 04. RESPECTFULLY FOLLOWING THE DECISION OF THIS TRI BUNAL THE CIT (A) DIRECTED THE ASSESSING OFFICER TO ALLOW THE DEDUCTION UNDER SECT ION 80IB OF THE IT ACT. 4.2. AGGRIEVED BY THE ORDER OF THE CIT [A], THE RE VENUE IS IN APPEAL BEFORE US. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPRE SENTATIVE APPEARING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT IN THE SI MILAR SET OF FACTS AND CIRCUMSTANCES IN ASSESSEES OWN CASE IN ITA NO.1809/KOL/2009 DATE D 29.03.2007 THIS TRIBUNAL HAS GIVEN A FINDING IN FAVOUR OF THE ASSESSEE.. THE LEA RNED AR FURNISHED COPIES OF THE ORDERS OF THIS TRIBUNAL IN ITA NO.2367/KOL/2005 IN THE CASE OF ACIT VS M/S. 3 NAGAREEK FOILS LTD IN ITS ORDER DATED 24.3.2006 AND VIDE ITA NO.1544/KOL/2006 IN THE CASE OF ITO-WARD-8, KOLKATA VS M/S. ASHIANA HOU SING AND FINANCE P.LTD. IN ITS ORDER DATED 7.11.2006. THEREFORE, HE REQUESTED TO U PHOLD THE ORDERS OF THE LD. CIT (A) WHICH IS IN CONFORMITY WITH THE TRIBUNALS DIRECTIO NS. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD IT IS OBSERVED THAT, T HE TRIBUNAL IN ITA NO.1809/KOL/2009 HAS HELD AS UNDER:- WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. AT THE TIME OF HEARING BEFORE US, THE ASSESSEES LEARNED C OUNSEL SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF JURISD ICTIONAL HIGH COURT IN THE CASE OF CIT VS MAGNUM EXPORTS (P LTD. [262 ITR 10(C AL)]. HE ALSO RELIED ON THE DECISIONS OF KOLKATA BENCHES OF THE TRIBUNAL IN THE CASES OF M/S. ASHIANA HOUSING & FINANCE P.LTD. [ITA NO.1544/KOL/06, ORDER DATED 7.11.2006] AND M/S. NAGREEKA FOILS LTD. [ITA NO.2367/K/05, ORDER D ATED 24.3.2006]. COPIES OF THE AFORESAID ORDERS OF THE TRIBUNAL HAVE BEEN F ILED BEFORE US. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ISSUE IN THIS APPEAL BEFORE US IS SQUARELY COVERED BY THE DECISION OF HONBLE J URISDICTIONAL HIGH COURT IN THE CASE OF MAGNUM EXPORTS (P) LTD.(SUPRA). THIS IS ALSO COVERED BY THE TWO DECISIONS OF KOLKATA BENCHES OF THE TRIBUNAL, REFER RED TO ABOVE. IT IS AN ADMITTED POSITION THAT PREPARATION OF ACCOUNT IS MA NDATORY, BUT FILING OF THE SAME IS A PROCEDURAL MATTER. THE RATIO OF THE AFORE SAID DECISION OF HONBLE JURISDICTIONAL HIGH COURT IS THAT THE BENEFIT OF DE DUCTION U/S 80IB IS AVAILABLE WHERE THE AUDIT REPORT HAS BEEN FILED BEFORE THE CO MPLETION OF THE ASSESSMENT INASMUCH AS FILING OF AUDIT REPORT IN FORM NO.10CCB IS DIRECTORY IN NATURE AND NOT MANDATORY. IN THIS CASE, THE ASSESSEE DID N OT ENCLOSE THE AUDIT REPORT IN FORM NO.10CCB ALONG WITH THE RETURN OF INCOME, BUT FILED THE SAME DURING ASSESSMENT PROCEEDING BEFORE THE AO. I.E.BEFORE THE COMPLETION OF ASSESSMENT. IN VIEW OF THE MATTER AND RESPECTFULLY FOLLOWING TH E AFORESAID DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT AND THE TRIBUNAL RELIED ON BY THE ASSESSEE WE DECLINE TO INTERFERE WITH THE ORDER OF THE CIT(A )ON THIS ISSUE AND REJECT THE GROUND OF APPEAL OF THE REVENUE. 7.1. KEEPING IN VIEW OF THE ABOVE DECISION AND SINC E THE. CIT(A)S ORDER IS IN CONFORMITY WITH THE TRIBUNALS ORDER, WE FIND NO IN FIRMITY IN THE ORDERS OF THE CIT (A) AND THE SAME IS CONFIRMED. 4 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.04.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, , , , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE: 29.04.2011. '! / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. M/S. FARSEEN RUBBER INDUSTRIES LTD., 98/7A, HARISH MUKHERJEE ROAD, KOLKATA-700025. 2 THE A.C.I.T.,CIRCLE-7, KOLKATA 3. THE CIT, 4. THE CIT(A)-VIII, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .2 -/ TRUE COPY, '!%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)