The ACIT, Central Circle-1(4), Ahmedabad V. B.Nanji Enterprises Ltd., Ahmedabad

ITSSA 121/AHD/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1871 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-04-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 16-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NOS. 121, 125 & 126/AHD/2013 & CO NOS. 117, 121 & 122/AHD/2013 (IN IT(SS)A NOS. 121, 125 & 126/AHD/2013 RESPECTIVE LY) / ASSESSMENT YEAR: 2003-04, 2007-08 & 2008-09 RESPECTIVELY ACIT, CENTRAL CIRCLE 1 (4), AHMEDABAD .. APPELLANT VS M/S. B. NANJI ENTERPRISES LTD, MOORTI BUNGALOW, 5, ASHOKNAGAR CO-OP. HOUSING SOCIETY LTD., NR. ISRO, B/H. SUNDARVAN, AHMEDABAD-15 .. RESPONDENT PAN : AAACB 7702 P REVENUE BY : SHRI R.I. PATEL, CIT-DR ASSESSEE(S) BY : SHRI SAKAR SHARMA, AR / DATE OF HEARING 08/04/2016 /DATE OF PRONOUNCEMENT 08/04/2016 / O R D E R PER BENCH: THESE THREE APPEALS BY THE REVENUE AND THE CROSS-OB JECTIONS THEREOF BY THE ASSESSEE ARE DIRECTED AGAINST SEPARA TE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, AHMEDABAD D ATED 28.12.2012, 12.12.2012 & 12.12.2012 FOR ASSESSMENT YEARS 2003-04, 2007-08 & 2008-09 RESPECTIVELY. IT(SS)A NOS. 121, 125 & 126/AHD/2013 & CO NOS. 117, 12 1 & 122/AHD/2013 ACIT VS. B NANJI ENTERPRISES LTD AYS : 2003-04, 2007-08 & 2008-09 2 2. FOR ASSESSMENT YEAR 2003-04, THE REVENUE HAS TAK EN FOLLOWING GROUNDS OF APPEAL:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.8,47,466/- MADE ON ACCOUNT OF DISALL OWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT AS THE A SSESSEE HAS NOT FULFILLED THE CONDITION OF COMPLETING THE PROJE CT BEFORE 01.04.2008 AS PRESCRIBED IN SECTION 80IB(10) READ W ITH EXP. (II) TO SECTION 80IB(10) OF THE ACT. 2) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE MA TTER BEING IN THE NATURE OF EXCEPTION, IT IS TO BE CONSTRUED S TRICTLY AT THE STAGE OF DETERMINATION WHETHER THE ASSESSEE FALLS W ITHIN ITS TERMS OR NOT AND IN CASE OF DOUBT THE BENEFIT MUST GO TO THE STATE AS HELD IN NOVOPAN INDIA LTD VS. COLLECTOR OF CENTRAL EXCISE AND CUSTOMS, 1994 (73) ELT 679 (SC). 3) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE IN COME WHICH IS SUBJECT TO DEDUCTION MUST BE VIEWED AS PER THE P ROVISIONS OF THE I.T. ACT APPLICABLE IN THE RELEVANT YEAR. ON LY WHEN ALL THE CONDITIONS LAID DOWN ARE FULFILLED, THE DEDUCTI ON IS ADMISSIBLE. 4) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 2.1 FOR ASSESSMENT YEAR 2007-08, THE EFFECTIVE GROU NDS RAISED BY THE REVENUE READ AS UNDER:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.28,72,858/- MADE ON ACCOUNT OF DISAL LOWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT AS THE A SSESSEE HAS NOT FULFILLED THE CONDITION OF COMPLETING THE PROJE CT BEFORE IT(SS)A NOS. 121, 125 & 126/AHD/2013 & CO NOS. 117, 12 1 & 122/AHD/2013 ACIT VS. B NANJI ENTERPRISES LTD AYS : 2003-04, 2007-08 & 2008-09 3 01.04.2008 AS PRESCRIBED IN SECTION 80IB(10) READ W ITH EXP. (II) TO SECTION 80IB(10) OF THE ACT. 2) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE MA TTER BEING IN THE NATURE OF EXCEPTION, IT IS TO BE CONSTRUED S TRICTLY AT THE STAGE OF DETERMINATION WHETHER THE ASSESSEE FALLS W ITHIN ITS TERMS OR NOT AND IN CASE OF DOUBT THE BENEFIT MUST GO TO THE STATE AS HELD IN NOVOPAN INDIA LTD VS. COLLECTOR OF CENTRAL EXCISE AND CUSTOMS, 1994 (73) ELT 679 (SC). 3) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE IN COME WHICH IS SUBJECT TO DEDUCTION MUST BE VIEWED AS PER THE P ROVISIONS OF THE I.T. ACT APPLICABLE IN THE RELEVANT YEAR. ON LY WHEN ALL THE CONDITIONS LAID DOWN ARE FULFILLED, THE DEDUCTI ON IS ADMISSIBLE. 2.2 FOR ASSESSMENT YEAR 2008-09, THE EFFECTIVE GROU NDS RAISED BY THE REVENUE READ AS UNDER:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.31,05,021/- MADE ON ACCOUNT OF DISAL LOWANCE OF CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT AS THE A SSESSEE HAS NOT FULFILLED THE CONDITION OF COMPLETING THE PROJE CT BEFORE 01.04.2008 AS PRESCRIBED IN SECTION 80IB(10) READ W ITH EXP. (II) TO SECTION 80IB(10) OF THE ACT. 2) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE MA TTER BEING IN THE NATURE OF EXCEPTION, IT IS TO BE CONSTRUED S TRICTLY AT THE STAGE OF DETERMINATION WHETHER THE ASSESSEE FALLS W ITHIN ITS TERMS OR NOT AND IN CASE OF DOUBT THE BENEFIT MUST GO TO THE STATE AS HELD IN NOVOPAN INDIA LTD VS. COLLECTOR OF CENTRAL EXCISE AND CUSTOMS, 1994 (73) ELT 679 (SC). 3) THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE IN COME WHICH IS SUBJECT TO DEDUCTION MUST BE VIEWED AS PER THE P ROVISIONS IT(SS)A NOS. 121, 125 & 126/AHD/2013 & CO NOS. 117, 12 1 & 122/AHD/2013 ACIT VS. B NANJI ENTERPRISES LTD AYS : 2003-04, 2007-08 & 2008-09 4 OF THE I.T. ACT APPLICABLE IN THE RELEVANT YEAR. ON LY WHEN ALL THE CONDITIONS LAID DOWN ARE FULFILLED, THE DEDUCTI ON IS ADMISSIBLE. 3. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEALS OF THE REVENUE NEED TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCU LAR NO.21 OF 2015 DATED 10.12.2015. 3.1 ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE SUBMITTED THAT ALL THESE APPEALS ARE NOT COVERED BY CBDT CIRC ULAR NO.21 OF 2015 DATED 10.12.2015 AS THE ISSUE RAISED IN ALL ASSESSM ENT YEARS UNDER CONSIDERATION ARE COMMON AND THEREFORE WILL FALL IN THE EXCEPTION MENTIONED IN PARAGRAPH 5 OF THE AFORESAID CIRCULAR. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE DO NOT AGREE WITH THE CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE. PARAGRAPH NO.5 OF THE CBDT CIRCULA R NO.21 OF 2015 IS APPLICABLE ONLY IN THOSE CASES WHERE COMPOSITE ORDE R HAS BEEN PASSED BY THE LD. CIT(A) FOR MORE THAN ONE YEAR OR COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEARS, WHICH IS NOT THE CASE I N RELATION TO APPEALS BEFORE US. PARAGRAPH NO.5 OF THE CBDT CIRCULAR NO .21/2015 DATED 10.12.2015 READS AS UNDER:- 5 HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH C OURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE A SSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESS MENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MON ETARY LIMITS IN IT(SS)A NOS. 121, 125 & 126/AHD/2013 & CO NOS. 117, 12 1 & 122/AHD/2013 ACIT VS. B NANJI ENTERPRISES LTD AYS : 2003-04, 2007-08 & 2008-09 5 ANY OF THE YEAR(S), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER/ JUDGEM ENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHAL L BE DEALT WITH SEPARATELY. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT IT I S NOT A COMPOSITE ORDER EVEN THE ISSUE RAISED IN DIFFERENT YEARS IS C OMMON. SO APPLYING THE AFORESAID CIRCULAR OF CBDT, WE DISMISS THE APPE ALS OF THE REVENUE AND THE CROSS-OBJECTION RAISED BY THE ASSESSEE GOES ACADEMIC IN ALL THESE ASSESSMENT YEARS. 5. AS A RESULT, ALL THE APPEALS FILED BY THE REVENU E AS WELL AS CROSS- OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 8 TH OF APRIL 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (SHAILENDRA K. YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 08/04/2016 BIJU T., PS ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD