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

MA 148/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9217 (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: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 30-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Section: 80HHC

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 4 8 /AHD/ 201 2 ASSESSMENT YEAR : 2004-05 (ARISING OUT OF ITA NO. 634/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.634/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 & 2 OF THE REVENUES APPEAL, WHICH IS AS UNDER: M.A. NO.148/AHD/12, A/O ITA NO. 634/AHD/2010, A.Y. 04-05 PAGE 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE EXCISE DUTY AN D SALES TAX WILL NOT BE INCLUDED IN THE TOTAL TURNOVER WHILE CALCULATING TH E DEDUCTION U/S. 80HHC OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN RELYING DECISIONS OF THE HONBL E APEX COURT IN THE CASE OF CIT VS. SUDARSHAN CHEMICALS (2000) 245 ITR 769, CIT COIMBATORE VS. LAKSHMI MACHINES WORKS, 290 ITR 667 & CIT VS. CATAPHARMA (INDIA) P. LTD. (2007) 292 ITR 641 (SC) WITHOUT CONSIDERING THE FACT THAT SUCH DECISIONS WERE PERTAINING TO THE ASSESSMENT YEAR PRIOR TO A.Y.1999-00 AND WITH EFFECT FROM 01.04.99 [A.Y. 1999-00], PROVISIONS OF SECTION 145A OF THE ACT HAVE BEEN INS ERTED AS PER WHICH VALUATION OF PURCHASE AND SALE HAS TO BE MADE AFTER ADDING TAX, DUTY CESS OR FEE ETC. 2. WE HAVE CONSIDERED THE ISSUE IN DETAIL ON PAGE N OS. 4 & 5 OF THE ABOVE ORDER AND AFTER CONSIDERING THE HONBLE SUPREME COU RT DECISION IN CASE OF CIT COIMBATORE VS. LAKSHMI MACHINES WORKS, 290 ITR 667, WE SET ASIDE THE ISSUE TO THE A.O. FOR RE-ADJUDICATION. 3. DURING THE COURSE OF HEARING IN M.A., LD. A.R., SHRI S.N. SOPARKAR AGAIN DRAWN OUR ATTENTION ON HONBLE SUPREME COURT DECISI ON IN CASE OF CIT COIMBATORE VS. LAKSHMI MACHINES WORKS (SUPRA) AND REQUESTED TO APPLY THE RATIO OF THE JUDGMENT AND CLAIMED IT IS A MISTAKE A PPARENT ON RECORD AND REQUIRED TO BE MODIFIED. FROM THE SIDE OF THE REVEN UE, THE LD. D.R. VEHEMENTLY RELIED UPON THE ORDER PASSED BY THIS BEN CH ON THIS ISSUE AND ARGUED THAT THE APEX COURT DECISION AS CITED BY THE LD. A.R. FOR THE APPELLANT HAD BEEN CONSIDERED BY THE HONBLE BENCH AND THE MA TTER HAS BEEN SET ASIDE M.A. NO.148/AHD/12, A/O ITA NO. 634/AHD/2010, A.Y. 04-05 PAGE 3 TO THE A.O. FOR RE-ADJUDICATION AND THIS IS NOT A M ISTAKE APPARENT FROM THE RECORD AND IS NOT A CASE OF RECTIFIABLE. 4. WE HAVE CONSIDERED THE M.A. AS WELL AS THE ORDER PASSED BY US. THE HONBLE APEX COURT DECISION IN CASE OF CIT COIMBATORE VS. LAKSHMI MACHINES WORKS (SUPRA) HAS BEEN CONSIDERED BY THIS BENCH BUT ON THIS ISSUE THERE IS AN AMENDMENT IN THE ACT W.E.F. 01.04.1999 U/S. 145A OF THE IT ACT. THE YEAR UNDER CONSIDERATION WAS A.Y. 2004-05 WHERE AS HONBLE APEX COURT HAD GIVEN ITS JUDGMENT FOR A.Y. 1993-94. THEREFORE , THIS BENCH HAS RIGHTLY SET ASIDE THE ISSUE TO THE A.O. FOR RE-ADJUDICATION. T HE MISTAKE IS NOT APPARENT AND RECTIFIABLE AS CLAIMED BY THE APPELLANT. WE DI SMISS THE M.A. NO. 148/AHD/2012. 5. IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISMI SSED. 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( ; M.A. NO.148/AHD/12, A/O ITA NO. 634/AHD/2010, A.Y. 04-05 PAGE 4 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