CIT (ITAT), Chandigarh V. M/s Gherian Oil Gram Udyog Workers Association, Una

MA 201/CHANDI/2007

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7967 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-04-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 08-08-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: R R THAKUR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER MA NO. 201/CHD/2007 IN ITA NO. 836/CHD/2006 ASSESSMENT YEAR: 2000-01 CIT (ITAT), V M/S GHERIAN OIL GRAM CHANDIGARH. UDYOG WORKERS ASS., UNA (HP). & MA NO. 108/CHD/2008 IN ITA NO. 836/CHD/2006 ASSESSMENT YEAR: 2000-01 M/S GHERIAN OIL GRAM V ITO UDYOG WORKERS ASS., UNA (HP). UNA (HP). (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI N.K.SAINI ASSESSEE BY : SHRI R.R.THAKUR DATE OF HEARING : 13.04.2012 DATE OF PRONOUNCEMENT : 15.05.2012 ORDER PER MEHAR SINGH, AM THE IMPUGNED MISC.APPLICATIONS U/S 254(2) OF THE INCOME-TAX ACT,1961 (IN SHORT 'THE ACT') HAVE BEEN FILED BY THE REVENUE AND THE ASSESSEE RESPECTIVELY AND THE S AME ARISE FROM ITA NO. 836/CHD/2007 ASSESSMENT YEAR 2000-01 DATED 20.07.2007. 2. THE REVENUE IN THE MISC.APPLICATION DATED 08.08. 2007 CONTENDED THAT THE HON'BLE JURISDICTIONAL HIGH COUR T IN THE CASE OF FIVE STAR DRUGS 207 CTR 246 HAS HELD THAT T HE 2 DECISION OF THE JURISDICTIONAL HIGH COURT IS BINDIN G ON THE TRIBUNAL. IN PARA 6 OF THE TRIBUNALS ORDER IN ITA NO. 836/CHD/2007 DATED 20.7.2007, DEDUCTION U/S 80IB OF THE ACT CLAIMED BY THE ASSESSEE, HAS BEEN ALLOWED, BY F OLLOWING THE DECISION OF THE GUJRAT HIGH COURT IN 275 ITR 28 4 (GUJ). 3. IN THE COURSE OF PRESENT PROCEEDINGS BEFORE US, BOTH LD. 'DR' AND LD. 'AR' CONCEDED THAT THE ISSUE OF INTERE ST SUBSIDY IS SQUARELY COVERED BY THE DECISION OF THE JURISDIC TIONAL HIGH COURT IN ASSESSEE'S OWN CASE, AS REPORTED IN 330 IT R 117. THE HON'BLE HIMACHAL PRADESH HIGH COURT ADJUDICATED THE DIRECT QUESTION OF ELIGIBILITY OF INTEREST SUBSIDY U/S 80IB AGAINST THE ASSESSEE. THE RELEVANT PART OF THE DEC ISION IS REPRODUCED HEREUNDER : 11. APPLYING THE TESTS LAID DOWN IN LIBERTY INDIA S CASE AND STERLING FOODS CASE, IT IS APPARENT THAT THE INTEREST SUBSIDY RECEIVED BY THE ASSESSEE IS NOT A PROFIT DERIVED FROM BUSINESS SINCE IT IS NOT AN OPERATIONA L PROFIT. THE SOURCE OF THE SUBSIDY IS NOT THE BUSINE SS OF THE ASSESSEE BUT THE SCHEME OF THE STATE GOVERNMENT . 12. IN VIEW OF THE ABOVE DISCUSSION, WE ARE CLEARLY OF THE VIEW THAT THE QUESTIONS HAVE TO BE ANSWERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THE APPEALS ARE ACCORDINGLY ALLOWED. 4. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS , FACTS OF THE CASE AND THE DECISION OF THE HON'BLE JURISDI CTIONAL HIGH COURT REFERRED TO ABOVE. IN THIS CONNECTION, IT IS MENTIONED THAT THE HON'BLE SUPREME COURT IN THE CAS E OF ACIT V SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (S.C) HAS CATEGORICALLY HELD THAT FAILURE T O APPLY THE 3 JUDGMENT OF JURISDICTIONAL HIGH COURT AND SUPREME COURT CONSTITUTE MISTAKE APPARENT FROM RECORD. IN THE PR ESENT CASE, IT IS EVIDENT THAT THE HON'BLE HIGH COURT OF HIMACHAL PRADESH, ON THE ISSUE OF ELIGIBILITY OF INTEREST SU BSIDY U/S 80IB OF THE ACT HAS BEEN DECIDED AGAINST THE ASSESS EE IN ITS OWN CASE. THEREFORE, IT CONSTITUTES A MISTAKE APPA RENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 5. THE ASSESSEE IN THE MA/108/2008 POINTED OUT THAT CERTAIN ARGUMENTS AND PAPERS WERE NOT CONSIDERED BY THE BENCH, HENCE, ORDER MAYBE RECALLED. 6. HAVING REGARD TO THE ABOVE LEGAL AND FACTUAL DISCUSSIONS, M.A. FILED BY THE REVENUE IS ALLOWED A ND IT WOULD CONSEQUENTLY, DISPOSE OF THE M.A. FILED BY TH E ASSESSEE. REGISTRY IS DIRECTED TO FIX THE CASE IN DUE COURSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MAY,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15 TH MAY,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH