Mount Distilleries Ltd., Gangtok V. ITO, Ward - 2(4), Gangtok, Sikkim, Gangtok

MA 209/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6283 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 17-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: ANAND SEN
• Keywords: Principle of natural justice

Judgement Text

MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI M.BA LAGANESH, AM] M.A.NO.209/KOL/2017 IN I.T.A NO. 191/KOL/201 4 ASSESSMENT YEAR : 2010-1 1 MOUNT DISTILLERIES LTD. -VS.- I.T.O., WAR D-2(4) GANGTOK, SIKKIM GANGTOK, SIKKIM. [PAN : AAHCM 0027 H] (APPLICANT) (RESPONDENT) FOR THE APPELLANT : SHRI ANAND SEN, ADVOCAT E FOR THE RESPONDENT : SHRI S.DAS GUPTA, ADDL. CIT, SR.DR DATE OF HEARING : 23.2.2018. DATE OF PRONOUNCEMENT : 01.03.2018. ORDER PER N.V.VASUDEVAN, JM THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR RECTIFICATIO N OF CERTAIN APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL DATED 22.9.2017 PASSED IN THE AFORESAID APPEAL. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF BREWERY AND BOTTLING PLANT. THE ASSESSEE CLAIMED DEDUCTION U/S 80IE OF THE INCO ME TAX ACT, 1961 (ACT) ON INCOME DERIVED FROM BOTTLING CHARGES. THE AO WAS OF THE VIEW THAT INCOME DERIVED FROM BOTTLING CHARGES IS NOT ELIGIBLE FOR DEDUCTION U/S 80IE OF THE ACT AS THE CONDITION PRECEDENT FOR CLAIMING SUCH DEDUCTION WAS THAT THE ASSESSEE WAS REQUIRED TO MANUFACTURE OR PRODUCE OF AN ARTICLE OR THING AS LI STED IN THE FOURTEENTH SCHEDULE OF THE ACT. BESIDES THE ABOVE, THE AO ALSO NOTICED THAT T HE RETURN OF INCOME HAS BEEN FILED BY THE ASSESSEE FOR A.Y.2010-11 ONLY ON 31.03.2011 WHICH WAS BEYOND THE DUE DATE FOR FILING THE RETURN U/S 139(1) OF THE ACT. THE AO WAS OF THE VIEW THAT AS PER THE PROVISION OF SECTION 80AC OF THE ACT ANY DEDUCTION UNDER CHAPTER-VI A OF THE ACT (SEC.80IE OF THE ACT IS PART OF CHAPTER VIA OF THE ACT) CAN BE CLAIMED ONLY IF THE MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 2 RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR I S FILED ON OR BEFORE THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. SINCE THE ASSESSE E HAS NOT COMPLIED WITH THE AFORESAID CONDITIONS, THE AO REFUSED TO ALLOW DEDUC TION U/S 80IE OF THE ACT. 3. ON APPEAL BY THE ASSESSEE, THE CIT(A) CONFIRMED THE ORDER OF THE AO. ON FURTHER APPEAL BY THE ASSESSEE, THE TRIBUNAL UPHELD THE ORD ER OF THE CIT(A) WITH THE FOLLOWING OBSERVATIONS: 5. WE HAVE HEARD THE SUBMISSIONS OF THE LD. CO UNSEL FOR THE ASSESSEE, WHO SUBMITTED THAT THE PROVISION OF SECTION 80AC OF THE ACT IS DIRECTORY AND NOT MANDATORY. WE HAVE CONSIDERED THE SUBMISSIONS AND A RE OF THE VIEW THAT THE SAME CANNOT BE ACCEPTED. 6. IN SAFFIRE GARMENTS VS. ITO 140 ITD 0006(SB) (RAJKOT), THE SPECIAL BENCH OF THE TRIBUNAL IN THE CONTEXT OF DEDUCTION U /S.10A OF THE ACT HAD TO CONSIDER THE EFFECT OF THE PROVISO TO SEC.10A(1A) O F THE ACT WHICH IS SIMILAR TO THE PROVISIONS OF SEC.80AC OF THE ACT. SEC.10A(1A) AND THE PROVISO THERETO IS AS FOLLOWS: (1A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SE CTION (1), THE DEDUCTION, IN COMPUTING THE TOTAL INCOME OF AN UNDE RTAKING, WHICH BEGINS TO MANUFACTURE OR PRODUCE ARTICLES OR THINGS OR COMPUTER SOFTWARE DURING THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 2003, IN ANY SPEC IAL ECONOMIC ZONE, SHALL BE, (I) HUNDRED PER CENT OF PROFITS AND GAINS DERIVED F ROM THE EXPORT OF SUCH ARTICLES OR THINGS OR COMPUTER SOFTWARE FOR A PERIO D OF FIVE CONSECUTIVE ASSESSMENT YEARS BEGINNING WITH THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE UNDERTAKING BEGINS TO MA NUFACTURE OR PRODUCE SUCH ARTICLES OR THINGS OR COMPUTER SOFTWAR E, AS THE CASE MAY BE, AND THEREAFTER, FIFTY PER CENT OF SUCH PROFITS AND GAINS FOR FURTHER TWO CONSECUTIVE ASSESSMENT YEARS, AND THEREAFTER; (II) FOR THE NEXT THREE CONSECUTIVE ASSESSMENT YEAR S, SO MUCH OF THE AMOUNT NOT EXCEEDING FIFTY PER CENT OF THE PROFIT A S IS DEBITED TO THE PROFIT AND LOSS ACCOUNT OF THE PREVIOUS YEAR IN RES PECT OF WHICH THE DEDUCTION IS TO BE ALLOWED AND CREDITED TO A RESERV E ACCOUNT (TO BE CALLED THE 'SPECIAL ECONOMIC ZONE RE-INVESTMENT ALLOWANCE RESERVE ACCOUNT') TO BE CREATED AND UTILISED FOR THE PURPOS ES OF THE BUSINESS OF THE ASSESSEE IN THE MANNER LAID DOWN IN SUB-SECTION (1B) : MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 3 PROVIDED THAT NO DEDUCTION UNDER THIS SECTION SHALL BE ALLOWED TO AN ASSESSEE WHO DOES NOT FURNISH A RETURN OF HIS INCOM E ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SEC TION 139.' 7. THE SPECIAL BENCH, HELD THAT AS PER PROVISO TO SEC.10A(1A) OF THE ACT, THE ASSESSEE WAS REQUIRED TO FILE THE ROI WITHIN TH E PRESCRIBED TIME AS PER THE PROVISIONS OF SECTION 139(1) OF THE ACT AND THE PRO VISO TO SECT 10A(1A) WAS NOTHING BUT A CONSEQUENCE OF FAILURE OF THE ASSESSE E TO FILE THE ROI WITHIN THE DUE DATE PRESCRIBED U/S 139(1). FOR SUCH A FAILURE OF THE ASSESSEE TO FILE HIS ROI WITHIN THE DUE DATE PRESCRIBED U/S 139(1), DISALLOW ANCE OF DEDUCTION U/S.10A OF THE ACT WAS NOT THE ONLY CONSEQUENCE. ANOTHER CONSE QUENCE OF SUCH FAILURE WAS PRESCRIBED IN SECT 234A ALSO AS PER WHICH, THE ASSESSEE WAS LIABLE TO PAY INTEREST ON THE TAX PAYABLE BY HIM AFTER REDUCING A DVANCE TAX AND TDS/TCS IF ANY PAID BY HIM APART FROM SOME OTHER REDUCTIONS. T HE LEGAL POSITION IS BY NOW SETTLED THAT CHARGING OF INTEREST UNDER VARIOUS SECTIONS INCLUDING U/S 234A WAS MANDATORY. WHEN ONE OF THE CONSEQUENCES FOR NOT FILING ROI WITHIN THE DUE DATE PRESCRIBED U/S 139(1) WAS MANDATORY THEN, OTHER CONSEQUENCE FOR THE SAME FAILURE OF THE ASSESSEE COULD NOT BE DIRECTORY AND THE SAME WAS ALSO MANDATORY. THE PROVISIONS OF THE PROVISO TO SECTION 10A(1A) WAS THEREFORE HELD TO BE MANDATORY AND NOT DIRECTORY. 8. ANOTHER ARGUMENT PUT FORTH BEFORE THE SPECI AL BENCH WAS THAT SEC.139(4) IS A PROVISO TO SEC.139(1) OF THE ACT AND THEREFORE RETURN FILED BEFORE THE TIME LIMIT PRESCRIBED IN SEC.139(4) SHOULD ALSO BE CONSI DERED AS A RETURN FILED U/S.139(1) OF THE ACT. THIS ARGUMENT WAS ALSO CONS IDERED AND REJECTED BY THE SPECIAL BENCH AND THE SPECIAL BENCH HELD THAT THE H ONBLE SUPREME COURT IN THE CASE OF PRAKASH NATH KHANNA VS. CIT AS REPORTED IN 266 ITR 01 (S.C.) HAS HELD THAT FILING OF RETURN OF INCOME WITHIN THE TIM E ALLOWED U/S 139(4) OF THE INCOME TAX ACT, 1961 CANNOT DILUTE THE INFRACTION I N NOT FURNISHING RETURN IN DUE TIME AS PRESCRIBED U/S 139(1) OF THE INCOME TAX ACT, 1961. 9. WE ARE OF THE VIEW THAT THE RULING OF THE SPECI AL BENCH WILL EQUALLY APPLY TO THE PROVISIONS OF SEC.80AC OF THE ACT WHICH ARE IDE NTICAL TO PROVISO TO SEC.10A(1A) OF THE ACT. THE PROVISIONS OF SEC.80AC OF THE ACT READS THUS: 80AC. DEDUCTION NOT TO BE ALLOWED UNLESS RETURN F URNISHED.-WHERE IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE OF THE PR EVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF AP RIL, 2006 OR ANY SUBSEQUENT ASSESSMENT YEAR, ANY DEDUCTION IS ADMISS IBLE UNDER SECTION 80- IA OR SECTION 80-IAB OR SECTION 80-IB OR SECTION 80 -IC OR SECTION 80-ID OR SECTION 80-IE, NO SUCH DEDUCTION SHALL BE ALLOWED TO HIM UNLESS HE FURNISHES A RETURN OF HIS INCOME FOR SUCH ASSESSMEN T YEAR ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139. 10. IN VIEW OF THE DECISION OF THE SPECIAL BENC H OF THE TRIBUNAL IN THE CASE OF M/S. SAFFIRE GARMENTS (SUPRA), WE HOLD THAT THE PROVISIONS UNDER SECTION MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 4 80AC REQUIRING THE ASSESSEE TO FURNISH THE RETURN O F INCOME BEFORE DUE DATE SPECIFIED UNDER SECTION 139(1) IS MANDATORY AND NOT DIRECTORY. 11. THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHELCON PROPERTIES (P) LTD., G.A.NO.3069 OF 2013, ITAT NO.1 62 OF 2013 ORDER DATED 16.1.2014 HELD THAT PROVISIONS OF SEC.80AC OF THE A CT ARE MANDATORY. THE LEARNED COUNSEL HOWEVER MADE SUBMISSION THAT THE QU ESTION WHETHER RETURN FILED WITHIN THE TIME LIMIT PRESCRIBED U/S.139(4) O F THE ACT SHOULD BE CONSTRUED AS COMPLIANCE WITH THE CONDITION OF FILING RETURN O N OR BEFORE DUE DATE U/S.139(1) OF THE ACT BY TREATING THE PROVISIONS OF SEC.139(4) AS PROVISO TO SEC.139(1) OF THE ACT, WAS NOT CONSIDERED BY THE H ONBLE CALCUTTA HIGH COURT IN THE AFORESAID DECISION. BUT THIS ARGUMENT DOES NOT HOLD WATER IN VIEW OF THE DECISION OF THE SPECIAL BENCH WHICH HAS CONSIDERED THIS QUESTION AND HELD IN THE NEGATIVE BY RELYING ON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF PRAKASH NATH KHANNA (SUPRA). 12. IN VIEW OF THE ABOVE DISCUSSION AND CONSIDE RING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF AUTHORITIES BELOW. IN VIEW OF THE ABOVE CONCLUSION WE ARE OF THE VIEW THAT THE QUESTION THAT THE ASSESSEE SATISFIES THE REQUIREMEN T OF CLAIMING DEDUCTION U/S 80 IE OF THE ACT DOES NOT REQUIRE ANY EXAMINATION. 4. IT IS THE PLEA OF THE ASSESSEE IN THIS MA THAT A WRITTEN SUBMISSION WAS FILED ON BEHALF OF THE ASSESSEE BEFORE THE TRIBUNAL WHICH CO NTAINED INTER ALIA COPY OF A NUMBER OF JUDICIAL DECISIONS, NAMELY THE (A) DIVISI ON DECISION OF TRIBUNAL A BENCH, DELHI IN THE CASE OF M/S FIBERFILL ENGINEERS [ITA NO.1853/DEL/2015 DATED 25 TH FEBRUARY, 2016] (B) DIVISION BENCH JUDGMENT OF THE HIGH COURT AT DELHI IN THE CASE OF CIT VERSUS M/S UNITECH LIMITED [ITA NO. 239/20 15 DATED 05 TH OCTOBER, 2015] AND DECISIONS OF THE HONOURABLE SUPREME COURT OF IN DIA IN THE CASE OF (A) STRAW BOARD MANUFACTURING LTD DATED 28 TH APRIL,1989 AND (B) CIT -VERSUS- PODDAR CEMENTS PRIVATE LTD DATED 27 TH MAY, 1997 TO SUPPORT THE CASE OF THE ASSESSEE. IT HAS FURTHER BEEN CONTENDED THAT IN THE IMPUGNED ORDER OF TRIBUN AL DATED 22ND SEPTEMBER, 2017, THERE WAS NO MENTION OR DISCUSSION OR REFERENCE TO ANY OF THE AFORESAID DECISIONS NOR THERE WAS ANY FINDING, AFTER DISCUSSION OF THE FACT S OF THE CASE/S THAT THE CASES CITED ABOVE DID NOT SUPPORT THE CASE OF THE ASSESSEE OR T HE ARGUMENTS MADE ON BEHALF OF THE APPELLANT. IT IS CLAIMED THAT THE ABOVE OMISSION CONSTITUTES MISTAKE APPARENT FROM THE RECORD, WHICH REQUIRES RECTIFICATION WITHIN THE MEA NING OF SECTION 254(2). IT HAS ALSO MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 5 BEEN CONTENDED THAT EVEN IF IT IS PRESUMED, WITHOUT ACCEPTING, THAT SUCH DECISIONS HAD NO RELEVANCE OR ANY BEARING ON ITS DECISION, SUCH A CTION, WITHOUT ANY REASON IN- SUPPORT OF SUCH CONCLUSION, WOULD CONSTITUTE SERIOU S BREACH OF THE PRINCIPLE OF NATURAL JUSTICE (AUDI ALTERAM PARTEM) AND WOULD CONSTITUTE ARBITRARINESS. IT HAS ALSO BEEN CONTENDED THAT UNLESS THE ADJUDICATOR IS SPECIFICAL LY SEEN TO HAVE CONSIDERED THE ARGUMENTS OR SUBMISSIONS AND THEN REJECTED THEM, WI TH REASON/S, AFTER CONSIDERATION, A MISTAKE APPARENT FROM RECORD WOULD CREEP IN. IT I S CLAIMED THAT IN THE ORDER OF THE TRIBUNAL THERE IS NO REFERENCE TO ANY OF THE DECISI ONS CITED ON BEHALF OF THE ASSESSEE. IT IS CLAIMED THAT THERE IS A MISTAKE, AS ABOVE, AP PARENT FROM RECORD, WITHIN THE MEANING OF SECTION 254(2), IN THE ORDER OF THE TRIB UNAL DATED 22 ND SEPTEMBER, 2017 IN I.T.A. NO. 191/ KOL 2014, WHICH REQUIRES TO BE RECT IFIED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE MADE SUBMI SSIONS WHICH WAS A REITERATION OF WHAT IS CONTAINED IN THE MA SET OUT IN THE EARLIER PARAGRAPH OF THIS ORDER. HE MADE REFERENCE TO THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF HONDA SIELPOWER PROUDCTS LTD. 295 ITR 466 (SC) WHEREIN IT WAS HELD BY THE HONBLE SUPREME COURT THAT THE PURPOSE BEHIND ENACTMENT OF SEC.254(2) OF THE ACT IS TO ENSURE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL AND THAT PREJUDICE SHOULD NOT BE CAUSED TO THE PARTIES. ACCORDING TO HIM THE ASSSSEE IS PREJUDICED BY THE A CTION OF THE TRIBUNAL IN NOT MAKING A REFERENCE TO THE DECISION OF THE HONBLE DELHI IT AT IN THE CASE OF M/S FIBERFILL ENGINEERS (SUPRA) OF THE HONBLE DELHI HIGH COURT I N THE CASE OF M/S. UNITECH LTD. (SUPRA) AND DECISIONS OF HONBLE SUPREME COURT IN T HE CASE OF STRAWBOARD MANUFACTURING LTD. (SUPRA) AND PODDAR CEMENTS LTD ( SUPRA), IN ITS ORDER. THE LD. COUNSEL FOR THE ASSESEE FAIRLY ADMITTED THAT THE IS SUE WAS ALSO COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE CALCUTTA HI GH COURT IN THE CASE OF SHALCON PROPERTIES (P)LTD (SUPRA). HOWEVER ACCORDING TO HIM THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S. UNITECH LTD. (SUPRA) HAS HELD THAT THE QUESTION WHETHER PROVISIONS OF SEC. 80AC IS MANDATORY OR NOT IS LEFT OPEN. THE REV ENUE HAS FILED APPEAL BEFORE THE HONBLE SUPREME COURT AGAINST THE SAID DECISION OF THE HONBLE DELHI HIGH COURT IN UNITECH LTD.S (SUPRA) CASE AND THE SAME FOR ADJUD ICATION IN CIVIL APPEAL NO.1460 OF MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 6 2017. ACCORDING TO HIM THEREFORE THE LAST WORD ON T HE ISSUE IS YET TO BE PRONOUNCED BY THE HONBLE SUPREME COURT. ACCORDING TO HIM THEREFO RE ALL THESE ASPECTS SHOULD HAVE BEEN SPELT OUT IN THE ORDER OF THE TRIBUNAL SO THAT THE APPELLATE FORUM WHEN THE ISSUE IS TAKEN UP ON APPEAL, CAN APPRECIATE THE CASE OF THE ASSESSEE. 6. THE LD. DR POINTED OUT THAT WHEN THE ISSUE IS C OVERED AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SHELCON PROPERTIES (P)LTD (SUPRA), WHICH IS THE JURISDICTION HIGH COURT, AS F AR AS THE ASSESSEE AND ITAT ARE CONCERNED, THE TRIBUNAL HAS NO OTHER OPTION BUT TO FOLLOW THE SAME. ACCORDING TO HIM, THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORD ER OF THE TRIBUNAL. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. AS RIGHTLY CONTENTED BY THE LD. DR, WHEN THE ISSUE IS SQUARELY AND ADMITTEDLY COVER ED BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT, REFERENCE TO THE DECISION OF I TAT, DELHI BENCH IN THE CASE OF M/S FIBREFILL ENGINEERS (SUPRA) IS NOT NECESSARY. A S FAR AS THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S UNITECH LTD. (S UPRA) IS CONCERNED, IT DID NOT DEAL WITH THE QUESTION WHETHER PROVISIONS OF SEC.80AC OF THE ACT ARE MANDATORY OR DIRECTORY. THE FACT THAT AN APPEAL AGAINST THE SAID DECISION IS PENDING BEFORE THE HONBLE SUPREME COURT IS NOT OF ANY RELEVANCE BECAU SE AS ON THE DATE WHEN THE TRIBUNAL PASSED ITS ORDER IT WAS BOUND TO FOLLOW TH E DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. SHELCON PROPERTIES (P)LTD (SUPRA). THEREFORE, NOT MAKING A REFERENCE TO THE DECISION OF DELHI HIGH COURT IN TH E CASE OF M/S. UNITECH LTD. (SUPRA) IS NEITHER A MISTAKE APPARENT FROM THE RECORD NOR DOES IT CAUSE ANY PREJUDICE TO THE ASSESSEE. FOR THE VERY SAME REASONS NOT MAKING A RE FERENCE TO THE DECISIONS OF THE HONBLE SUPREME COURT IN THE CASE OF STRAW BOARD MA NUFACTURING LTD. (SUPRA) AND PODDAR CEMENTS PVT. LTD. (SUPRA) BY THE TRIBUNAL IN ITS ORDER DOES NOT GIVE RISE TO ANY MISTAKE APPARENT ON THE FACE OF THE ORDER OF TH E TRIBUNAL. THE DECISIONS OF THE HONBLE SUPREME COURT ARE ON THE PRINCIPLE (A) A LI BERAL CONSTRUCTION SHOULD BE PUT ON THE LANGUAGE OF A STATUTE WHEN CONCESSIONAL RATES A RE PROVIDED FOR ENCOURAGING AN INDUSTRIAL ACTIVITY AND (B) WHEN TWO INTERPRETATION S ARE POSSIBLE, THE VIEW IN FAVOUR OF THE ASSESSEE HAS TO BE ADOPTED. BOTH THESE DECISION S CANNOT BE APPLIED BY THE TRIBUNAL MA NO.209/K/2017 IN ITA NO.191/K/2014 MOUNT DISTILL ERIES LTD. A.Y.2010-11 7 TO HOLD THAT PROVISIONS OF SEC.80AC OF THE ACT ARE DIRECTORY ONLY, CONTRARY TO THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S SHELCON PROPERTIES (P)LTD. (SUPRA). WE ARE THEREFORE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE RECORD OF THE TRIBUNAL. HENCE THE MISCELLANEOUS APPLICATION IS DISMISSED. 8. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 01.03.2018. SD/- SD/- [M.BALAGANESH] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.03.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. MOUNT DISTILLERIES LTD., PALZOR STADIUM ROAD , GANGTOK, SIKKIM. 2 I.T.O., WARD-2(4), GANGTOK, SIKKIM. 3. C.I.T.(A)-JALPAIGURI 4. C.I.T.-J ALPAIGURI, SILIGURI 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES