Midas Polymer Compounds P.Ltd, Kottayam V. ACIT, Kottayam

MA 100/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9679 (ITAT-COCHIN)
• Duration Of Justice: 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Section: 80IB

Judgement Text

1 MA NO.100/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO 100/COCH/2012 (ARISING OUT OF ITA NO 266/COCH/2010 (ASSESSMENT YEAR 2007-08) MIDAS POLYMER COMPOUNDS P LTD VS THE A.C.I.T., CE NT.CIR.1 MIDAS MARKETING BLDG KOTTAYAM MARIATHURUTHU P.O. KOTTAYAM PAN : AABCM5932D (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MATHEW JOSEPH RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 14-12-2012 DATE OF PRONOUNCEMENT : 21-12-2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 18-09-2012. 2 MA NO.100/COCH/2012 2. SHRI MATHEW JOSEPH, THE LD.REPRESENTATIVE FOR TH E TAXPAYER SUBMITTED THAT THIS TRIBUNAL WHILE ADJUDICATING GROU ND NO.1 WITH REGARD TO DEDUCTION U/S 80IB HAS FOLLOWED THE ORDER OF THIS T RIBUNAL IN TAXPAYERS OWN CASE FOR EARLIER ASSESSMENT YEAR IN ITA NO.375/ COCH/2006 ORDER DATED 25-09-2008 AND FOUND THAT THE TAXPAYER IS NOT ELIGI BLE FOR DEDUCTION U/S 80IB OF THE ACT. ACCORDING TO THE LD.REPRESENTATIV E, THE TAXPAYER HAS FILED AN APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER O F THIS TRIBUNAL IN ITA NO.375/COCH/2006 ORDER DATED 25-09-2008 AND THE HIG H COURT BY JUDGMENT DATED 21-12-2010 IN I.T.A. NO.84 OF 2009 FO UND THAT THE TAXPAYER IS ELIGIBLE FOR DEDUCTION U/S 80-IB OF THE ACT IN R ESPECT OF PROFIT DERIVED BY THE INDUSTRIAL UNIT WHERE THE COMPOUND RUBBER WAS M ADE. SINCE THE ORDER OF THIS TRIBUNAL IN ITA NO.375/COCH/2006 ORDER DATE D 25-09-2008 WAS REVERSED BY THE HIGH COURT AND IT WAS FOUND THAT TH E TAXPAYER IS ELIGIBLE FOR DEDUCTION U/S 80IB, ACCORDING TO THE LD.REPRESENTAT IVE, THE OBSERVATION MADE BY THIS TRIBUNAL AT PARAGRAPH 4 OF THE ORDER N EEDS TO BE RECTIFIED. 3. WE HEARD SMT. VIJAYAPRABHA, THE LD.DR ALSO. THE LD.DR STRONGLY OBJECTED THAT THERE IS NO ERROR IN THE ORDER OF THIS TRIBUNAL. ACCORDING TO 3 MA NO.100/COCH/2012 THE LD.DR, THIS TRIBUNAL HAS FOLLOWED ITS EARLIER O RDER. THEREFORE, NO RECTIFICATION OF THE ORDER OF THE TRIBUNAL NEEDS TO BE DONE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHT LY SUBMITTED BY THE LD.REPRESENTATIVE FOR THE TAXPAYER THIS TRIBUNAL, B Y FOLLOWING ITS EARLIER ORDER IN ITA NO.375/COCH/2006 ORDER DATED 25-09-200 8 FOUND THAT THE TAXPAYER IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB IN RESPECT OF INCOME EARNED FROM MIXING OF RUBBER FROM THIRD PARTIES. THE TAXP AYER FILED AN APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER OF THIS TRI BUNAL IN ITA NO.375/COCH/2006 ORDER DATED 25-09-2008 AND THE HIG H COURT FOUND THAT THE TAXPAYER IS ELIGIBLE FOR DEDUCTION U/S 80IB IN RESPECT OF INCOME EARNED ON PRODUCTION OF RUBBER COMPOUND ON JOB WORK BASIS F OR THE TYRE MANUFACTURING COMPANIES. THIS JUDGMENT OF THE HIGH COURT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH AT THE TIME OF D ISPOSAL OF THE APPEAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT NON CONSIDERATION OF THE JUDGMENT OF THE HIGH COURT IS AN ERROR WITHIN THE ME ANING OF SECTION 254(2) OF THE ACT. MOREOVER, THE ORDER OF THIS TRIBUNAL I N ITA NO.375/COCH/2006 ORDER DATED 25-09-2008 RELIED UPON BY THIS TRIBUNAL IS NO LONGER IN 4 MA NO.100/COCH/2012 EXISTENCE SINCE THE SAME HAS BEEN REVERSED BY THE H IGH COURT. THEREFORE, PLACING RELIANCE ON AN ORDER WHICH WAS REVERSED BY THE HIGH COURT IS ALSO AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE A CT WHICH NEEDS TO BE RECTIFIED. ACCORDINGLY, THE ORDER OF THIS TRIBUNAL IN ITA NO.226 /COCH/2010 AND 281/COCH/2010 DATED 18-09-2012 IS RECTIFIED AS FOLLOWS: 4.1 THE ENTIRE PARAGRAPH 4 ON PAGE 2 OF THE ORDER O F THE TRIBUNAL SHALL BE DELETED. INSTEAD , THE FOLLOWING SHALL BE SUBSTITUTED AS PARAGRAPH 4 ON PAGE 2 OF THE TRIBUNAL ORDER: 4. WE HEARD THE LD.REPRESENTATIVE FOR THE TAXPAYER AND THE LD.DR. NO DOUBT, THE TAXPAYERS CLAIM FOR DEDUCTIO N U/S 80IB IN RESPECT OF INCOME EARNED FROM MIXING OF RUBBER FROM THIRD PARTIES ON JOB WORK BASIS WAS REJECTED BY THE TRIBUNA L FOR THE EARLIER ASSESSMENT YEAR IN ITA NO.375/COCH/2006 ORD ER DATED 25-09-2008. HOWEVER, ON APPEAL BY THE TAXPAYER, TH E HIGH COURT IN I.T.A. NO.84 OF 2009 JUDGMENT DATED 21 ST DECEMBER, 2010 REVERSED THE ORDER OF THIS TRIBUNAL, ITA NO.375/COCH/2006 ORDER DATED 25-09-2008 AND FOUND T HAT THE TAXPAYER IS ELIGIBLE FOR DEDUCTION U/S 80IB IN RESP ECT OF PROFIT 5 MA NO.100/COCH/2012 DERIVED FROM MIXING OF RUBBER ON JOB WORK BASIS FOR OTHER TYRE MANUFACTURING COMPANIES. IN VIEW OF THE JUDGMENT OF THE KERALA HIGH COURT WHICH IS BINDING NOT ONLY ON THIS TRIBUNAL BUT ALSO ON THE TAXPAYER AS WELL AS THE DEPARTMENT, THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE TAXPAYER IS ELIG IBLE FOR DEDUCTION U/S 80IB OF THE ACT ON THE PROFIT DERIVED FROM MIXING OF RUBBER FROM THIRD PARTIES. BY RESPECTFULLY FOLL OWING THE JUDGMENT OF THE KERALA HIGH COURT IN TAXPAYERS OWN CASE FOR THE EARLIER ASSESSMENT YEAR IN I.T.A. NO.84 OF 2009 ORDER DATED 21-12-2010 THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDU CTION U/S 80IB OF THE ACT IN RESPECT OF INCOME EARNED FROM MI XING OF RUBBER FROM THIRD PARTY RUBBER MANUFACTURE COMPANIE S. 4.1 THE FOLLOWING SHALL BE DELETED ON PAGE 8 AT PAR AGRAPH 17 : 17. IN THE RESULT, APPEALS OF THE TAXPAYER AND THE REVENUE ARE DISMISSED. 6 MA NO.100/COCH/2012 4.3 AND THE FOLLOWING SHALL BE INSERTED ON PAGE 8 A T PARAGRAPH 17: 17. IN THE RESULT, THE APPEAL OF THE TAXPAYER IS P ARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE TAXPAYER IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 21 ST DECEMBER, 2012 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH