M/s. Pyramid Plastics, Daman V. The ACIT.,Vapi Circle, Vapi

MA 147/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9227 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 30-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND SHRI T.R. MEENA, ACCOUNTANT MEMBER M.A. NO. 1 47 /AHD/ 201 2 ASSESSMENT YEAR : 2004-05 (ARISING OUT OF ITA NO. 579/AHD/2010) ASSESSMENT YEAR :2004-05 M/S PYRAMID PLASTICS PLOT NO.377/1(1) & (2), KACHIGAM CHAR RASTA, DAMAN V/S . ASST. COMMISSIONER OF INCOME-TAX, VAPI CIRCLE, VAPI PAN NO. AA DFP1691B (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI S.N.SOPARKAR, A.R. /BY RESPONDENT SHRI RAHUL KUMAR, SR.D.R. /DATE OF HEARING 21.09.2012 /DATE OF PRONOUNCEMENT 05.10.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS M.A. IS FILED BY THE ASSESSEE AGAINST ORDER DA TED 23.03.2012 IN RESPECT OF ASSESSEES APPEAL NO.579/AHD/2010 FOR A. Y. 2004-05, WHERE THE ASSESSEE FILED THE APPEAL AGAINST THE ORDER OF CIT( A)-VALSAD, DATED 30.09.2009. THERE WAS AN ISSUE BEFORE THE BENCH IN GROUND NOS. 1 TO 4 IN ORIGINAL APPEAL WHETHER DEDUCTION U/S. 80IB IS TO B E CALCULATED AFTER REDUCING M.A. NO.147/AHD/12, A/O ITA NO. 579/AHD/2010, A.Y. 04-05 PAGE 2 THE DEDUCTION U/S. 80HHC OR IT HAS TO BE COMPUTED O N STAND ALONE BASIS. THIS BENCH HAS GIVEN DETAILED FINDINGS ON PAGE NOS. 2 & 3 AND ASSESSEES APPEAL HAS BEEN DISMISSED ON THIS GROUND BUT THE ASSESSEE CAME IN M.A. AND WHICH IS REPRODUCED AS UNDER: 1. THE APPELLANT ABOVE NAMED FILES THE PRESENT APP LICATION FOR SETTING ASIDE THE ORDER DATED 23/03/2012 PASSED BY THIS HONBLE TRIBUNAL DISMISSING THE APPEAL FILED BY THE APPLICANT. IT I S MOST RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF THE HONBLE ITA T, THERE ARE ERRORS APPARENT ON THE RECORD. 2. THAT THE HONBLE TRIBUNAL PROCEEDED TO DISMISS T HE APPEAL OF THE APPLICANT CONFIRMING THE ORDER OF LD. CIT(A) AS IN PARA 4 ON PAGES 2 :- 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES. WE FIND THAT SIMILAR ISSUE WA S CONSIDERED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ROGINI GARMENTS (SUPRA) WHEREIN IT WAS HELD THAT DEDUCTION U/S 80IA HAS TO BE MADE PRIOR TO THE GRANT OF RELIEF U/S.HHC. THE LEARNED COUNSEL FOR T HE ASSESSEE RELIED ON DECISIONS IN THE CASE OF SCM CREATIONS V ACIT 307 I TR 319 (MAD), ACIT V. SREEJA HOSIERIES (2009) 122 TTJ 849 (CHENNA I), JP TOBACCO PRODUCTS P. LTD. V. CIT (1998) 229 ITR 123 (MP) AND OTHER CASES. IN THE CASE OF SCM CREATIONS (SUPRA) BEFORE THE HONBL E MADRAS HIGH COURT, SECTION 80-IA(9) HAD NOT RAISED NOR EXAMINED NOR DECIDED BY THE COURT. THEREFORE, THE RATIO OF THIS CASE CANNOT BE APPLIED IN THIS CASE. THE SPECIAL BENCH OF THE DELHI TRIBUNAL IN THE CASE OF ACIT V. HINDUSTAN MINT AND AGRO PRODUCTS (P) LTD. (2009) 31 5 ITR 401 (DEL)(SB) (AT) HAS CONSIDERED THE ORDER OF THE SCM CREATIONS (SUPRA) WHEREIN QUESTION WAS AS TO WHETHER ROGINI GARMENTS OVERRULED, WAS REFERRED TO A FIVE MEMBER SPECIAL BENCH WHICH UPHEL D THE CORRECTNESS OF THE DECISION IN THE CASE OF ROGINI GARMENT (SUPR A). FURTHER, WE FIND THAT ITAT, AHMADABAD BENCH IN THE CASE OF CELLO PEN S & STATIONARY PVT. LTD. V. ACIT IN ITA NO. 39/AHD/2007 ORDER DATED 04-12-2009 HAS M.A. NO.147/AHD/12, A/O ITA NO. 579/AHD/2010, A.Y. 04-05 PAGE 3 CONSIDERED SIMILAR ISSUE IN DETAIL VIDE PARA-12. T HE RELEVANT PORTION IS REPRODUCED BELOW:- 12.XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXXXXXX IN THIS VIEW OF THE MATTER, THE POSITION OF THE LAW IN THIS BEHALF BEING CLEAR AS OF NOW, WE RESPECTFULLY FOLLOWING TH E JUDGMENT OF THE ROGINI GARMENTS UP AND IN AGREEMENT WITH DECISI ON OF THE ITAT, AHMADABAD IN CELLO PENS & STATIONARY PVT. LTD . (SUPRA) CONFIRM THE ORDER OF LD. CIT(A) ON THIS ISSUE, AND DISMISS THIS GROUND OF THE ASSESSEE. 3. IT IS RESPECTFULLY SUBMITTED THAT THE LD. SENIOR COUNSEL FOR THE APPELLANT CITED BEFORE THE HONBLE BENCH JUDGMENT O F THE HONBLE BOMBAY HIGH COURT OF ASSOCIATED CAPSULES PVT. LTD. V. DCIT @ 332 ITR 42 THAT HAVE TAKEN A VIEW IN FAVOUR OF THE ASSESSEE. IN THAT CASE, IT WAS HELD BY THE HONBLE BOMBAY HIGH COURT THAT THE TRIBUNAL WAS NOT RIGHT IN HOLDING THAT AS PER SECTION 80-IA(1) OF TH E INCOME TAX ACT, 1961 HAS TO BE REDUCED FROM THE PROFITS OF THE BUSINESS OF THE UNDERTAKING WHILE COMPUTING DEDUCTION UNDER ANY OTHER SECTION U NDER CHAPTER VI A OF THE INCOME TAX ACT, 1961. HONBLE BOMBAY HIGH COURT HAS ALREADY CONSIDERED THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF CIT VS HINDUSTAN MINT (SUPR A). THIS VIEW OF THE HONBLE BOMBAY HIGH CFOURT HAS ALSO BEEN FOLLOWED B Y THE HONBLE KARNATAKA HIGH COURT IN CIT V MILLIPORE INDIA PVT. LTD. @ 341 ITR 219. SINCE NOW THE JUDGMENTS OF TWO DIFFERENT HIGH COURT S ARE AVAILABLE ON THIS ISSUE, DECISION OF SPECIAL BENCH OF THE TRIBUN AL IS NO MORE RELEVANT. SO ALSO THE DECISION OF ITAT, AHMADABAD IN CELLO PE NS & STATIONARY PVT. LTD. REPRODUCED IN THE IMPUGNED ORDER AND RELI ED UPON IS NO LONGER VALID AND APPLICABLE TO THE FACTS OF THE CASE. M.A. NO.147/AHD/12, A/O ITA NO. 579/AHD/2010, A.Y. 04-05 PAGE 4 4. THE HONBLE TRIBUNAL NOT TAKING COGNIZANCE OF TH E JUDGMENTS OF THE HONBLE HIGH COURTS CITED AT THE TIME OF HEARIN G AND INSTEAD RELYING UPON DECISION OF THE SPECIAL BENCH AS WELL OF ITAT AHMEDABAD IN DISMISSING THE APPEAL FILED BY THE APPELLANT CONSTI TUTES MISTAKE APPARENT ON RECORD. THIS ACTION OF HONBLE ITAT NO T FOLLOWING JUDGMENTS OF HIGH COURT RENDERED AFTER CONSIDERING RATIO OF THE SPECIAL BENCH DECISION BEING AGAINST THE PRINCIPLE OF JUDIC IAL HIERARCHY WOULD CONSTITUTE MISTAKE APPARENT ON RECORD THAT REQUIRES TO BE MODIFIED. 5. THE APPLICANT THEREFORE, RESPECTFULLY SUBMITS TH AT IN THE LARGER INTEREST OF JUSTICE THE HONBLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT BY RECALLING AND MODIFYI NG THE IMPUGNED ORDER AS STATED ABOVE SO AS TO APPRECIATE THE CORRECT FAC TS AND RELIEF BE GRANTED TO THE APPLICANT BY PASSING APPROPRIATE ORD ERS. 2. THIS BENCH HAS NOT CONSIDERED THE CASE LAW REFER RED BY THE A.R. FOR THE APPELLANT, NAMELY, HONBLE BOMBAY HIGH COURT DECISI ON IN CASE OF ASSOCIATED CAPSULES PVT. LTD. V. DCIT @ 332 ITR 42 FOR A.Y. 03-04 ORDER DATED JANUARY 10, 2011 AND HONBLE KARNATAKA HIGH COURT DECISION IN CIT V MILLIPORE INDIA PVT. LTD. @ 341 ITR 219 FOR A.Y. 01-02 ORDER DATED FEBRUARY 3, 2011, WHICH ARE IN FAVOUR OF THE APPELLANT. HOWEVER, THIS BENC H HAS DECIDED THIS GROUND OF APPEAL AGAINST THE ASSESSEE BY RELYING ON SPECIAL B ENCH, CHENNAI, DECISION IN CASE OF ROGINI GARMENTS (SUPRA) AND CO-ORDINATE BENCH, AHMEDABAD DECISION IN CASE OF CELLO PENS & STATIONARY PVT. LT D. (SUPRA). FURTHER, THE HONBLE PUNJAB AND HARYANA HIGH COURT DECISION IN C ASE OF FRIENDS CASTING P. LTD. VS COMMISSIONER OF INCOME-TAX, 340 ITR 305 (P&H) FOR A.Y. 2000-01 ORDER DATED SEPTEMBER 10, 2010 IS IN FAVOUR OF REVE NUE AND HELD THAT THE RESTRICTION U/S. 80IA(9) IS NOT ONLY THAT THE TOTAL DEDUCTION SHOULD NOT EXCEED M.A. NO.147/AHD/12, A/O ITA NO. 579/AHD/2010, A.Y. 04-05 PAGE 5 THE PROFIT AND GAIN BUT THERE IS A FURTHER RESTRICT ION THAT DEDUCTION ALLOWED U/S. 80IA OR 80IB WILL BE BARRED TO CLAIM THE DEDUCTION UNDER SECTION ANY OTHER PROVISION OF THIS CHAPTER. BEING MISTAKE APPARENT ON RECORD, AS THE BENCH HAS NOT CONSIDERED THE CASE LAW CITED BY THE APPELLANT, DURING THE COURSE OF HEARING. THEREFORE, WE RECALL OUR ORDER ON GROUND NOS. 1 TO 4 OF ITA NO. 579/AHD/2010 AND RELEASE THE FILE FOR FRESH HEARING . 3. IN THE RESULT, THE M.A. OF THE ASSESSEE IS ALLOW ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 05.10.2012 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 03.10.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 03.10.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 05.10.2012 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 05.10.2012 M.A. NO.147/AHD/12, A/O ITA NO. 579/AHD/2010, A.Y. 04-05 PAGE 6