The ITO, Vapi Ward-4, Daman V. M/s. Samarth Health Care, Nani Daman

MA 201/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1760 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-05-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 27-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.201/AHD/2013 - AY 2006-07 ( IN #./ IN I.T.A. NO.711/AHD/2010) ( ( ')( ( ')( ( ')( ( ')( / / / / ASSESSMENT YEAR : 2006-07) THE INCOME TAX OFFICER VAPI WARD-4 DAMAN / VS. M/S.SAMARTH HEALTHCARE S.NO.701-3-4 SIDDHI VINAYAK INDL.ESTATE SOMNATH NANI DAMAN !* #./+, #./ PAN/GIR NO. : AAXFZ 8908 G ( APPLICANT ) .. ( -.*/ / RESPONDENT ) REVENUE BY : SHRI O.P. BATHEJA, SR.DR ASSESSEE BY : - NONE- $'0 1 & / / / / DATE OF HEARING : 16/05/2014 23) 1 & / DATE OF PRONOUNCEMENT : 23/05/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS APPLICATION FILED ON 27 /11/2013,THE REVENUE HAS REQUESTED FOR RECALLING OF THE ORDER DA TED 15/06/2012 PASSED BY THE ITAT BENCH D AHMEDABAD IN ITA NO.711/AHD /2010 FOR AY 2006-07. 2. NO ONE APPEARED ON BEHALF OF THE ASSESSEE. HOWE VER, AN ACKNOWLEDGMENT HAS BEEN PLACED ON RECORD BY THE REV ENUE STATING THAT THE NOTICE OF HEARING HAS BEEN DULY SERVED UPON THE ASSESSEE. THE LD.SR.DR SUBMITTED THAT THE TRIBUNAL HAD FOLLOWED T HE EARLIER DECISION PASSED FOR THE ASST.YEAR 2005-06 IN ASSESSEES OWN CASE BEARING ITA MA NO.201/AHD/2013 (IN ITA NO.711/AHD/2010) ITO VS. M/S.SAMARTH HEALTHCARE ASST.YEAR 2006-07 - 2 - NO.1006/AHD/2009. HE SUBMITTED THAT THE HONBLE JU RISDICTIONAL HIGH COURT IN MISCELLANEOUS CIVIL APPLICATION NO.137 OF 2012 IN TAX APPEAL NO.1125 OF 2010 DATED 21/01/2013 HAS DECIDED THE IS SUE IN FAVOUR OF THE REVENUE AND REQUESTED THAT THE TRIBUNALS ORDER DAT ED 15/06/2012(SUPRA) BE RECALLED AND APPEAL BE DECIDED IN FAVOUR OF REVE NUE. 3. WE HAVE HEARD THE SR.DR, PERUSED THE MATERIAL AV AILABLE ON RECORD AND GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATION. THIS TRIBUNAL IN ITA NO.711/AHD/2010 (SUPRA) HAS DECIDED THE APPEAL AGAINST THE REVENUE BY OBSERVING AS UNDER: 5.. IT IS OBSERVED BY LD.CIT(A) THAT HONBLE CO- ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.1006/AHD/200 9(SUPRA) HAS HELD THAT TO OBTAIN FACTORY LICENCE IS NOT A CO NDITION PRECEDENT FOR CLAIMING DEDUCTION U/S.80IB OF THE ACT. IN THI S VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY INTO THE ORDER PASSED BY LD.CIT(A) SINCE IN THIS CASE ALSO ASSESSING OFFICER REJECTED THE CLAIM OF ASSESSEE U/S.80IB OF THE ACT ON THE GROUND THAT AS PER THE FACTORY LICENCE ISSUED BY CHIEF INSPECTOR OF THE FA CTORY, IT WAS SEEN THAT FACTORY LICENCE WAS ISSUED ON 06/05/2004, HOWEVER, MANUFACTURING ACTIVITY WAS COMMENCED ON 18/06/2004. SINCE, THIS ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF ASSESSE E IN ASSESSEES OWN CASE IN AY 2005-06 BY HONBLE CO-ORDINATE BENCH IN ITA NO.1006/AHD/2009 AND LD.DR COULD NOT POINT OUT ANY CHANGE IN CIRCUMSTANCES IN THIS YEAR. THEREFORE, WE DO NOT F IND ANY MERIT INTO THE APPEAL OF REVENUE. 3.1. NOW, THE HONBLE JURISDICTIONAL HIGH COURT HAS DECIDED THIS ISSUE IN FAVOUR OF THE REVENUE BY HOLDING AS UNDER: WHERE THE ASSESSEE HAS NEVER APPLIED FOR FACTORY L ICENSE BEFORE 31/03/2004, THE HONBLE HIGH COURT ALLOWED THE APPE AL IN FAVOUR OF THE DEPARTMENT, WHERE THE ASSESSEE HAS ALREADY A PPLIED BEFORE 31/03/2004, AND SUCH LICENSE WERE GRANTED SHORTLY T HEREAFTER, THE MA NO.201/AHD/2013 (IN ITA NO.711/AHD/2010) ITO VS. M/S.SAMARTH HEALTHCARE ASST.YEAR 2006-07 - 3 - HIGH COURT HAS DISMISSED THE APPEALS IN FAVOUR OF A SSESSEE AND WHERE THE DATE OF APPLICATION FOR FACTORY LICENSE W AS NOT EMERGING FROM THE RECORD, THE HONBLE HIGH COURT HAS PLACED THE PROCEEDINGS BEFORE THE AO FOR VERIFYING SUCH FACT A ND TO DECIDE THE ASSESSEES CASE ON THE BASIS OF FINDINGS GIVEN IN T HE JUDGMENT. 3.2. THEREFORE, WE RECALL OUR ORDER PASSED IN ITA N O.711/AHD/2010 FOR AY 2006-07(SUPRA) AND DIRECT THE REGISTRY TO FIX TH E HEARING OF THE APPEAL IN DUE COURSE. ACCORDINGLY, THE REGISTRY IS DIRECTED TO ISSUE THE NOTICE FOR HEARING OF APPEAL. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD; DATED 23/ 05 /2014 7.., '.../ T.C. NAIR, SR. PS 4 1 -&8 98)& 4 1 -&8 98)& 4 1 -&8 98)& 4 1 -&8 98)&/ COPY OF THE ORDER FORWARDED TO : 1. */ / THE APPLICANT. 2. -.*/ / THE RESPONDENT. 3. ## & $: / CONCERNED CIT-I, AHMEDABAD 4. $:() / THE CIT(A)-VALSAD 5. 8'%; -& , , / DR, ITAT, AHMEDABAD 6. ;( <0 / GUARD FILE. 4$ 4$ 4$ 4$ / BY ORDER, .8& -& //TRUE COPY// = == =/ // / #+ #+ #+ #+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD