Atul Limited, Ahmedabad V. The DY.CIT,(OSD), Ahmedabad Range-1, Ahmedabad

MA 132/AHD/2012

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4179 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 16-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA R SHAH

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.132/AHD/2012 IN ./ ITA NO.157/AHD/2007 / ASSTT.YEAR: 2003-2004] ATUL LIMITED 3 RD FLOOR, ASHOKA CHAMBERS RASALA MARG ELLISBRIDGE, AHMEDABAD. VS DCIT (OSD), RANGE - 1 AHMEDABAD ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI S.N. SOPARKAR WITH SHRI PARIN SHAH, AR REVENUE BY : SHRI NARENDRA R. SHAH / DATE OF HEARING : 01/04/2016 / DATE OF PRONOUNCEMENT: 07/04/2016 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT MISC. APPLICATION IS DIRECTED AT THE IN STANCE OF THE ASSESSEE POINTING OUT AN APPARENT ERROR IN THE ORDE R OF THE TRIBUNAL IN ITA NO.157/AHD/2007. 2. IT IS PLEADED IN THE APPLICATION THAT THE ASSESS EE HAS CLAIMED DEDUCTION UNDER SECTION 80IA OF THE ACT ON THE NEW POWER PLANT. THIS DEDUCTION WAS DISALLOWED BY THE TRIBUNAL BY FOLLOWI NG ITS ORDER PASSED IN THE ASST.YEAR 2001-02. THE TRIBUNAL HAS ALREADY RECALLED THE ORDER IN THE ASSTT.YEAR 2001-02, THEREFORE, THERE IS NO BASI S FOR REJECTING THE MA NO.132/AHD/2012 2 GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS YE AR ALSO. THE LD.COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT SIMILAR SITUATION HAS HAPPENED IN THE ASSTT.YEAR 2004-05, WHERE ALSO THE TRIBUNAL HAS DISALLOWED THE DEDUCTION UNDER SECTION 80IA BY FOLL OWING THE ORDER OF THE ITAT PASSED IN THE ASSTT.YEAR 2003-04 WHICH WER E FURTHER BASED ON THE ORDER PASSED IN THE ASSTT.YEAR 2001-02. THE TR IBUNAL HAS RECALLED ITS FINDING IN THE ASSTT.YEAR 2004-05 VIDE ORDER DA TED 30.3.2016. HE PLACED ON RECORD THE TRIBUNALS ORDER IN MA NO.157/ AHD/2012 FOR THE ASSTT.YEAR 2004-05. THE LD.DR UNABLE TO CONTROVERT THE CONTENTIONS OF THE LD.COUNSEL FOR THE ASSESSEE. THE ORDER OF THE TRIBUNAL IN THE ASSTT.YEAR 2004-05 IN MA NO.157/AHD/2012 DEALING WI TH AN IDENTICAL SITUATION WAS PLACED ON RECORDS. THE FINDING GIVEN BY THE TRIBUNAL READS AS UNDER: THE PRESENT MISC. APPLICATION IS DIRECTED AT THE I NSTANCE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER O F THE TRIBUNAL DATED 24.9.2010 PASSED IN ITA NO.1547/AHD/2007 FOR THE ASSTT.YEAR 2004-05. 2. THE ASSESSEE HAS POINTED OUT TWO APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL. WITH REGARD TO FIRST ERROR, THE ASSESSEE HAS PLEADED AS UNDER: THE HON'BLE ITAT NOTED AT PAGE 7 PARA 8 OF THE IMP UGNED ORDER THAT BOTH THE PARTIES AGREED THAT THE ISSUE W AS SQUARELY COVERED AGAINST THE APPLICANT BY THE DECISION DATED 24/07/2009 OF THE ITAT AHMEDABAD BENCH 'D' IN THE A SSESSEE'S OWN CASE FOR A.Y. 2003/04 IN ITA NO. 157/AHD/2007 A ND FURTHER THAT HON'BLE ITAT IN THAT ORDER FOLLOWED DE CISION IN ITA # 3528/AHD/2004 DATED 16/05/2008 IN A.Y. 2001/0 2. THE HON'BLE ITAT ON THE BASIS OF ABOVE OBSERVATION THEN PROCEEDED TO DISMISS GROUND # 2 BY THE APPLICANT CH ALLENGING DISALLOWANCE ON PAGE 12 PARA 9.1 AS FOLLOWS: '9.1 SINCE THE FACTS OBTAINING IN THE YEAR UNDER CO NSIDERATION ARE UNDISPUTEDLY SIMILAR TO THE FACTS OBTAINING IN THE PRECEDING ASSESSMENT YEAR, WE HAVE NO HESITATION IN UPHOLDING THE FINDINGS OF THE LEARNED CIT (A) IN THE LIGHT OF THE AFORE SAID DECISION OF THE ITAT IN THE ASSESSEE'S OWN CASE IN A.Y. MA NO.132/AHD/2012 3 2003/04. THEREFORE GROUND NO. 2 IN THE ASSESSEE'S A PPEAL IS DISMISSED' 3. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT THE TRI BUNAL HAS RECALLED ITS FINDING ON THIS ISSUE IN THE ASSTT.YEA R 2001-02 VIDE ORDER DATED 11.5.2012 PASSED IN MA NO.324/AHD/2008 IN ITA NO.3528/AHD/2004. THE DISCUSSION MADE BY THE TRIBU NAL READS AS UNDER: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT CERTAIN MISTAKES IN THE TRIBUNAL ORDER. THE CON TENTION RAISED IN THE MISCELLANEOUS APPLICATION ARE AS UNDER: '1. THE APPLICANT BEING AGGRIEVED BY THE ORDER PASS ED BY THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, BE NCH D DATED 16.05.2008 RECEIVED ON 19.05.2008 (ANNEXURE-A ) BEGS TO SUBMIT THIS MISCELLANEOUS APPLICATION UNDER SEC.254 (2) OF THE I.T. ACT FOR THE KIND CONSIDERATION OF THE HON'BLE MEMBERS OF BENCH 'D'. 3. ONE OF THE POINTS FOR ADJUDICATION BEFORE THE TRIBUNAL WAS IN RESPECT OF 80-IA RELIEF CLAIMED FOR THE FIRST TI ME FOR THE INCOME GENERATED FROM A NEW INDUSTRIAL UNDERTAKING BY WAY OF A NEW TURBINE WHICH GENERATES ELECTRICITY. 4. THE ASSESSEE HAD ALREADY ONE CAPTIVE POWER PLANT OF WHICH THE TURBINE AND THE BOILER WERE PRINCIPAL ITEMS. THE NE W POWER PLANT BY WAY OF TURBINE CONSUMED THE STEAM PRODUCED BY THE ABOVE BOILER WHICH WAS A PART OF OLD POWER PLANT. T HE A.O. REJECTED THE CLAIM OF SEC. 80-IA IN RESPECT OF NEW POWER PLANT BY HOLDING AS FOLLOWS :- 'IT IS HEREBY HELD THAT THE NEW POWER PLANT HAS BEE N ESTABLISHED BY WAY OF TRANSFER OF OLD AND PREVIOUSLY USED MACHI NERY WHICH DISQUALIFIES THE NEW POWER PLANT FROM BEING ELIGIBL E FOR DEDUCTION U/S.80-IA. ANY PROFITS DERIVED THEREFROM SHALL HAVE TO BE EXCLUDED FROM THE PROFITS OF THE NEW INDUSTRIAL UNDERTAKINGS ELIGIBLE FOR DEDUCTION U/S. 80-IA.' IN OTHER WORDS, A.O. WAS OF THE VIEW THAT AS THE NE W POWER PLANT WAS GETTING THE STEAM FROM ALREADY EXISTING BOILER, IT IS ESTABLISHED BY THE TRANSFER OF OLD AND PREVIOUSLY U SED MACHINERY MA NO.132/AHD/2012 4 AND THEREFORE, DISQUALIFIES THE ASSESSEE FOR 80-IA RELIEF. ON APPEAL, COMMISSIONER OF INCOME-TAX (APPEALS) AGREED WITH THE A.O. THAT THE NEW INDUSTRIAL UNDERTAKING HAS COME I NTO EXISTENCE BY TRANSFER OF THE OLD BOILER. 5. ON APPEAL, BY THE ASSESSEE, THE ASSESSEE'S COUNS EL MERELY CONTENDED BEFORE THE TRIBUNAL THAT ON THE BASIS OF THE FIGURES GIVEN BY THE A.O. IN HIS ASSESSMENT ORDER EVEN IF T HE BOILER IS TO BE CONSIDERED TO BE A PART OF NEW POWER PLANT EVEN THEN THE VALUE OF THE OLD MACHINERY AND THE BOILER IS NOT M ORE THAN 20% OF THE TOTAL VALUE OF THE MACHINERY AND PLANT USED IN THE BUSINESS. THE ASSESSEE'S COUNSEL RELIED ON THE FIGU RES GIVEN BY THE A.O. HIMSELF AT PAGE 48 & 49 OF HIS ASSESSMENT ORDER, ACCORDING TO WHICH RS. 14,47,600/- WAS THE ORIGINAL PURCHASE PRICE OF THE BOILER; WHEREAS TOTAL VALUE OF THE MAC HINERY INCLUDING THE ABOVE IS STATED TO BE RS. 14,46,44,29 5/- AND 20% THEREOF IS RS.2,92,24,180/- AND THEREFORE, THE VALU E OF THE MACHINERY AND PLANT PREVIOUSLY USED IS RS. 14,47,60 0/- AND DOES NOT EXCEED 20% OF THE TOTAL VALUE OF THE MACHINERY AND PLANT OF RS. 14,46,44,295/- EQUAL TO RS.2,92,24,180/-. THUS, BY VIRTUE OF THE PROVISION OF EXPLANATION 2 TO SECTION 801A(3) T HE CONDITION STATED IN SECTION 80-IA (3)(II) VIZ. IT IS NOT FORM ED BY THE TRANSFER TO A NEW BUSINESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE' IS COMPLIED WITH. THERE WAS NO FURTHER OR OTHER DISCUSSION ABOUT THIS POINT AT THE TIME OF HEARING OF THE APPEAL AND THE LEARNED DEPARTMENTAL REPRESENTATIVE MERELY RELIED ON THE ORDER OF THE A.O. WHICH HELD THAT THE 'NEW POWE R PLANT HAS BEEN ESTABLISHED BY WAY OF TRANSFER OF OLD AND PREV IOUSLY USED MACHINERY WHICH DISQUALIFIES THE NEW POWER PLANT FR OM BEING ELIGIBLE FOR DEDUCTION U/S. 80-1 A.' THE TRIBUNAL W ITHOUT ANY DISCUSSION IN THE OPEN COURT ABOUT THE POINT OF EXP ANSION HELD THAT THIS WAS A CASE OF EXPANSION OF THE EXISTING U NDERTAKING. THE ASSESSEE MOST HUMBLY SUBMITS THAT IN ABSENCE OF ANY ARGUMENTS HAVING BEEN INVITED FROM THE ASSESSEE ON THIS POINT , IT HAS BEEN DENIED THE RIGHT OF HEARING AND THE APPEAL ON THIS POINT HAS BEEN DECIDED WITHOUT HEARING THE ASSESSEE. FURTHER, IT I S WORTH APPRECIATING THAT THE A.O. ALSO AGREES THAT A NEW I NDUSTRIAL UNDERTAKING HAS COME INTO EXISTENCE BUT HE DENIES 8 0-IA RELIEF BECAUSE ACCORDING TO HIM THE CONDITION IN SECTION 8 0-IA(3)(II) VIZ. 'IT IS NOT FORMED BY THE TRANSFER TO A NEW BUS INESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE' IS NOT FULFILLED AND THE SHORT SUBMISSION OF THE ASSESSEE WAS THAT MA NO.132/AHD/2012 5 EXPLANATION 2 OF SECTION 34(3) SAVES THE ASSESSEE B ECAUSE VALUE OF OLD MACHINERY INCLUDING BOILER IS LESS THAN 20%. 6. THE ASSESSEE MOST HUMBLY SUBMITS THAT THE ORDER OF THE TRIBUNAL THUS SUFFERS FROM AN APPARENT ERROR WHICH HAS RESULTED INTO INJUSTICE TO THE ASSESSEE. THE ASSESSEE FURTHE R, MOST HUMBLY PRAYS THAT THE ABOVE APPARENT ERROR BE KINDLY RECTI FIED AND JUSTICE BE DONE TO THE ASSESSEE, FOR WHICH ACT OF K INDNESS THE ASSESSEE SHALL FOR EVER PRAY AND REMAIN GRATEFUL.' 2. IN THE COURSE OF HEARING BEFORE US OF THE MISCELLANEOUS APPLICATION, IT WAS SUBMITTED BY THE LD. A.R. THAT AS PER THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF GUJARAT ALKALI AND CHEMICALS LTD. VS CIT AS REPORTED IN 249 TR (GUJ.) 82, USE BY THE ASSESSEE OF THE OLD UNDERTAKING FOR THE PURPOSE OF PRODUCTION IN ITS NEW UNDERTAKING IS NOT A DECISIVE TEST IN CONSTRUING SE CTION 80-1. HE FURTHER SUBMITTED THAT AS PER THIS DECISION, IT WAS HELD BY THE HON'BLE GUJARAT HIGH COURT THAT NEW UNDERTAKING MUST NOT BE SUBSTAN TIALLY THE SAME OLD BUSINESS AND THERE SHOULD BE SUBSTANTIAL INVEST MENT OF NEW CAPITAL IS IMPERATIVE. HE FURTHER SUBMITTED THAT THIS JUDGM ENT OF HON'BLE GUJARAT HIGH COURT IS SQUARELY APPLICABLE IN THE PR ESENT CASE AND HENCE, THE ISSUE IN DISPUTE SHOULD BE DECIDED IN TH E LIGHT OF THIS JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT. 3. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER BECAUSE A CL EAR FINDING IS GIVEN BY THE TRIBUNAL THAT THERE IS MERELY AN EXPANSION O F INDUSTRIAL UNDERTAKING AND THE NEW UNDERTAKING MUST BE INDEPEN DENT OF EXISTING UNIT AND IT SHOULD BE ABLE TO CARRY OUT ACTIVITIES INDEPENDENTLY AND, THEREFORE, THERE IS NO APPARENT MISTAKE IN THE TRIB UNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE CASE OF GUJARAT ALKALI & CHEMICALS (SUPRA) ALSO, TH E SUBSTANTIAL EXPANSION WAS CARRIED OUT BY THE ASSESSEE AND DEDUC TION WAS CLAIMED U/S 80-1 AND THE SAME WAS REJECTED BY THE A.O. ON T HIS BASIS THAT IT WAS A CASE OF EXPANSION AND, THEREFORE, BENEFIT IS NOT AVAILABLE. THIS ORDER WAS CONFIRMED BY THE LD. CIT(A) AND BY THE TR IBUNAL BUT WHEN THE MATTER WAS BEFORE HON'BLE GUJARAT HIGH COURT, I T WAS HELD BY THE HON'BLE HIGH COURT THAT ONLY BECAUSE TO A CERTAIN E XTENT, THE NEW UNDERTAKING IS DEPENDENT ON THE EXISTING UNIT, IT W ILL NOT DEPRIVE THE NEW UNDERTAKING THE STATUS OF A SEPARATE AND DISTIN CT IDENTITY. IT ALL DEPENDS ON THE NATURE OF THE TECHNOLOGY AND THE MEC HANISM OF MA NO.132/AHD/2012 6 PRODUCTION. IN VIEW OF THIS DECISION OF HON'BLE GUJ ARAT HIGH COURT WHICH IS DATED 12.03.2012, IT APPEARS TO US THAT TH E IMPUGNED TRIBUNAL ORDER IS NOT IN LINE WITH THIS SUBSEQUENT JUDGMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF GUJARAT ALKALI & CHEMICALS (SUPRA). AS PER THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF ACIT VS SAURASHTSRA KUTCH STOCK EXCHANGE LT D., AS REPORTED IN 305 ITR 227, IF THE TRIBUNAL DECISION IS NOT IN LIN E WITH THE SUBSEQUENT JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT OR OF HON'BLE APEX COURT, IT AMOUNTS TO AN APPARENT MISTAKE IN THE TRI BUNAL ORDER. HENCE, IN OUR CONSIDERED OPINION, THERE IS AN APPARENT MIS TAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE THE SAME APPEARS TO BE NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF HON'BLE GUJARAT HIG H COURT WHICH IS THE JURISDICTIONAL HIGH COURT IN THE PRESENT CASE, RENDERED IN THE CASE OF GUJARAT ALKALIES & CHEMICALS LTD. (SUPRA). IN OU R CONSIDERED OPINION, THE TRIBUNAL ORDER ON THIS ASPECT SHOULD B E RECALLED AND THE MATTER SHOULD BE DECIDED AFRESH AFTER HEARING BOTH THE SIDES. WE ORDER ACCORDINGLY AND DIRECT THE REGISTRY TO FIX THIS APP EAL FOR HEARING IN RESPECT OF GROUND NO.3 OF THE ASSESSEE'S APPEAL I.E . I.T.A.NO. 3528/AHD/2004. THE REGISTRY SHOULD FIX THIS APPEAL IN DUE COURSE AND SHOULD ISSUE NOTICE TO BOTH THE SIDES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE. 4. SINCE IN THE PRESENT YEAR, THE TRIBUNAL HAS SIMP LY FOLLOWED THE FINDING RECORDED BY THE TRIBUNAL IN ITS ORDER D ATED 16.5.2008 PASSED IN ITA NO.3528/AHD/2004, THAT FINDING IS NO MORE IN EXISTENCE IN VIEW OF THE TRIBUNALS ORDER PASSED IN MA NO.324/AHD/2008 EXTRACTED (SUPRA). IN VIEW OF THIS DEVELOPMENT, WE ARE OF THE VIEW THAT IN THIS YEAR A PPARENT ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 24.9.2 010, BECAUSE THE TRIBUNAL HAS NOT RECORDED ANY INDEPENDENT FINDI NG ON THIS ISSUE. THE BASIS FOR ADJUDICATING THIS GROUND HAS BEEN EXTINGUISHED. THEREFORE, WE RECALL THE ORDER OF TH E TRIBUNAL TO THIS EXTENT AS FAR AS THE FIRST APPARENT ERROR POIN TED OUT BY THE ASSESSEE IS CONCERNED. THE FINDING RECORDED ON GRO UND NO.2 OF THE APPEAL IS RECALLED AND THIS GROUND IS RESTORED FOR RE- ADJUDICATION. 3. THERE IS NO DISPARITY ON FACTS IN THIS YEAR. TH EREFORE, WE RECALL THE FINDING OF THE TRIBUNAL ON GROUND NO.2 OF THE A SSESSEES APPEAL AND MA NO.132/AHD/2012 7 RESTORE THIS APPEAL TO ITS ORIGINAL NUMBERS FOR DIS POSING OF GROUND NO.2. THE MA OF THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, MA OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/04/2016