M/s. Gujarar State Petroleum Corpn.Ltd., Gandhinagar V. The Income tax officer,Ward-2, Gandhinagar

MA 221/AHD/2009

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7894 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1999-2000
• Appeal Filed On: 29-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Reassessment proceedings
• Section: 80IB; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.221/AHD/2009 IN I.T.A. NO. 3031/ AHD/2003 (ASSESSMENT YEAR 1999-2000) GUJARAT STATE PETROLEUM CORPN. LTD., GPSC BHAVAN, B/H UDYOG BHAVAN, SECTOR 11, GANDHINAGAR VS. ITO, WARD 3, GANDHINAGAR PAN/GIR NO. : AABCG4502F (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N SOPARKAR, SR. ADV. RESPONDENT BY: SHRI VINOD TANWANI, SR. DR DATE OF HEARING: 20.04.2012 DATE OF PRONOUNCEMENT: 11.05.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT CERTAIN MISTAKES IN THE TRIBUNAL ORDER. THE CONTEN TIONS OF THE MISCELLANEOUS APPLICATION ARE REPRODUCED BELOW: 1. THE PRESENT APPLICATION IS FILED BY THE A PPLICANT/APPELLANT ABOVE NAMED FOR SETTING ASIDE THE ORDER DATED 20/02 /2009 PASSED BY THIS HON'BLE TRIBUNAL REVERSING THE ORDER OF THE CIT (A) ALLOWING CLAIM OF DEDUCTION U/S 80IB (9) OF THE ACT IN RESPECT OF PROFITS EARNED FROM PRODUCTION OF MINERAL OIL AND T HUS ALLOWING THE APPEAL OF REVENUE. IT IS MOST RESPECTFULLY SUBMITTE D THAT IN THE SAID ORDER OF THE HON'BLE ITAT, THERE IS AN ERROR APPARE NT ON THE RECORD. M.A.NO.221/AHD/2009 2 2. THE HON'BLE ITAT WHILE DISPOSING OF THE AP PEAL, REPRODUCED THE GROUNDS RAISED BY REVENUE FROM PAGE 6 PARA 11 S ERIALLY AT NO. 1 TO 7 WHEREIN THE GROUND AT # 6 ON PAGE 7 READ AS UNDER: - 6. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN IGNORING THE FACT THAT IN THE ORIGINAL RETURN OF INCOME) NO CLAI M FOR DEDUCTION U/S 80IB (9) WAS MADE AND THEREFORE IN THE REASSESS MENT U/S 147, THE ASSESSEE IS PRECLUDED FROM INDUCTING NEW CLAIM OF DEDUCTION U/S 80IB (9) WHICH WAS NOT MADE IN THE ORIGINAL RET URN OF INCOME IN VIEW OF THE SUPREME COURT'S DECISION IN THE CASE OF CIT VS. SUN ENGINEERING WORKS P. LTD. 198 ITR 97 (SC). 3. THE HON'BLE ITAT AFTER NOTING THE SUBMISSI ONS MADE BY LEARNED DR AND REPRODUCING THE VIEW HELD BY THE APE X COURT IN THE CASE OF SUN ENGINEERING WORKS (SUPRA) ADJUDICATED T HE ISSUE IN PARA 14 ON PAGE 11 & 12 AS UNDER; - U IN VIEW OF THE ABOVE DECISION OF THE SUPREME COURT, WE ARE OF THE OPINION THAT DEDUCTION CLAIMED BY THE ASSESSEE UNDE R SECTION 80IB (9) WHICH HAS NO RELATION TO THE RE - COMPUTATION O F PROFIT UNDER SECTION 115JA OF THE ACT CANNOT BE CLAIMED OR ALLOW ED BY THE AO, THE DETERMINATION OF THE ISSUE OF ALLOWABILITY' OF CLAIM IS THEREFORE NOT IN ACCORDANCE WITH THE LAW. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX WE ACCORDINGLY REVERSE THE ORDER OF THE CIT (A) AND ALLOW REVENUE'S APPEAL ON THIS ISSUE. 4. THE APPLICANT MOST RESPECTFULLY SUBMITS THA T THE HON'BLE ITAT WHILE REPRODUCING THE RATIO OF THE SUN ENGINEE RING (SUPRA) ON PAGE 10 OF THE ORDER THOUGH HAVING NOTED IN THE 9 TH LINE FROM TOP AS BELOW: -INDEED, IN THE REASSESSMENT PROCEEDINGS FOR BRINGING TO TAX ITEMS WHICH HAD ESCAPED ASSESSMENT, IT WOULD BE OPEN TO THE ASSESSEE TO PUT FORWARD CLAIMS FOR DEDUCTION OF ANY EXPENDITURE IN RESPECT OF THAT INCOME OR \ REGARDING THE NON - T AXABILITY OF THE ITEMS AT ALL HAS HELD EXACTLY CONTRARY TO THE RATIO AS LAID DOWN BY THE HON'BLE SUPREME COURT. 5. NOW APPRECIATING THE FACTS OF THE CASE, TH E APPLICANT CLAIMED DEDUCTION U/S 42 OF THE ACT IN NORMAL COMPUTATION A S WELL AS FOR THE PURPOSE OF PROVISIONS OF SECTION 115JA OF THE A CT. THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE ACT SINCE HE WAS OF THE VIEW THAT THE ASSESSEE WAS NOT ENTITLED TO SUCH DEDUCTION IN COMPUTING BOOK PROFIT U/S 115JA. THE ASSESSEE IN RE TURN FILED IN M.A.NO.221/AHD/2009 3 RESPONSE TO THE NOTICE, DID NOT RETURN ANY POSITIVE INCOME AND THEREFORE HAD NO OCCASION TO CLAIM DEDUCTION UNDER CHAPTER VI - A. THEREFORE TO ITS RETURN OF INCOME APPENDED A NOT E THAT 'IN THE EVENT OF THE ASSESSMENT RESULTING IN A POSITIVE GRO SS TOTAL INCOME, THE COMPANY CLAIMS THAT DEDUCTION BE ALLOWED IN RES PECT OF PROFITS AND FROM THE PRODUCTION OF MINERAL OIL IN ACCORDANC E WITH THE PROVISION OF SEC. 80IB' IN LIGHT OF THE ABOVE FACTS THE RATIO OF THE DECISION OF THE APEX COURT IN THE CASE OF SUN ENGIN EERING (SUPRA) WOULD ENTITLE THE APPLICANT TO CLAIM THE DEDUCTION U/S 80IB(9) OF THE ACT. FURTHER THE HON'BLE ITAT IN THE ORDER OF T HE ASSESSEE PASSED ON THE SAME DAY FOR OTHER YEARS HAS HELD PRO FITS OF THE BUSINESS OF EXTRACTION OF MINERAL OIL AS ELIGIBLE F OR DEDUCTION U/S 80IB(9) OF THE ACT BY HOLDING THAT EACH WELL IS A S EPARATE UNDERTAKING. 6. THE APPLICANT THEREFORE, RESPECTFULLY SUBM ITS THAT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT AND RECTIFY T HE ORDER AS STATED ABOVE SO AS TO BE IN CONSONANCE WITH THE RATIO OF T HE DECISION OF SUN ENGINEERING WORKS P. LTD., 198ITR97(SC). 2. IT WAS SUBMITTED BY THE LD. A.R. BEFORE US IN TH E COURSE OF HEARING OF THE MISCELLANEOUS APPLICATION THAT THE VIEW TAKE N BY THE TRIBUNAL IN THE ORDER IS OPPOSITE TO THE JUDGMENT OF HONBLE APEX C OURT RENDERED IN THE CASE OF SUN ENGINEERING WORKS P. LTD. 198 ITR 97 (S .C.) AND THEREFORE, IT IS AN APPARENT MISTAKE WHICH SHOULD BE RECTIFIED . IN REPLY, IT WAS SUBMITTED BY THE LD. D.R. THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER. HE PLACED RELIANCE ON THE FOLLOWING JUDGMEN TS: (A) 203 ITR 497 (BBY.) CIT VS RAMESH ELECTRIC & TR ADING CO. (B) 202 ITR 14 CIT VS GOKUL CHAND AGARWAL (C) 176 ITR 535 CIT VS KARAM CHAND THAPAR & BROS. P. LTD. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND THE IMPUGNED TRIBUNAL ORDER. AS PER THE MISCELLANEOUS APPLICATION, THE MISTAKE POINTED OUT BY THE ASSESSE E IN THE MISCELLANEOUS M.A.NO.221/AHD/2009 4 APPLICATION IS IN PARA 14 OF THE IMPUGNED TRIBUNAL ORDER AND FOR THE SAKE OF READY REFERENCE, THIS PARA OF THE TRIBUNAL ORDER IS REPRODUCED BELOW: 14.IN VIEW OF THE ABOVE DECISION OF THE SUPREME C OURT, WE ARE OF THE OPINION THAT DEDUCTION CLAIMED BY THE AS SESSEE UNDER SECTION 80IB(9) WHICH HAS NO RELATION TO THE RE-COM PUTATION OF PROFIT UNDER SECTION 115JA OF THE ACT CANNOT BE CLA IMED OR ALLOWED BY THE AO. THE DETERMINATION OF THE ISSUE O F ALLOWABILITY OF CLAIM IS THEREFORE NOT IN ACCORDANCE WITH THE LA W. RELIANCE BY THE ASSESSEE ON THE DECISION OF TRIBUNAL IN THE CAS E OF ACIT VS. NIKO RESOURCES LTD., ITA NO.661/AHD/2005 AND 789/AH D/2005 DATED 29-2-2008 WOULD BE OF NO HELP TO THE ASSESSEE AS IN THAT CASE THE CLAIM WAS DETERMINED AND ALLOWED IN THE NORMAL ASSESSMENT PROCEEDINGS AND THE GROUND WAS RAISED IN THE APPEAL THERE AGAINST. WE ACCORDINGLY REVERSE THE ORDER OF THE CIT(A) AND ALLOW REVENUE'S APPEAL ON THIS ISSUE. 4. FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, IT IS SEEN THAT THE TRIBUNAL DECISION IS ON THIS BASIS THAT FOR THE DEDUCTION CL AIMED BY THE ASSESSEE U/S 80IB(9), THERE IS NO RELATION OF THE SAME TO THE RE COMPUTATION OF THE PROFIT U/S 115JA OF THE INCOME TAX ACT, 1961 AND HENCE, IT CANNOT BE CLAIMED OR ALLOWED BY THE A.O. AND FOR THIS REASON, IT WAS HEL D THAT THE DETERMINATION OF THE ISSUE OF ALLOWABILITY OF THIS CLAIM IS, THER EFORE, NOT IN ACCORDANCE WITH LAW. WE FIND THAT AS PER THE REASSESSMENT ORD ER PASSED BY THE A.O. ON 07.03.2003 AS PER THE ASSESSMENT ORDER U/S 143(3 ) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961, THE NORMAL INCOME HAS BEEN COMPUTED BY THE A.O. AT A LOSS OF RS.1365.99 LACS AND THE BO OK PROFIT WAS COMPUTED AS INCOME OF RS.2045.80 LACS. SINCE THERE IS LOSS COMPUTED UNDER REGULAR PROVISIONS OF THE INCOME TAX ACT, 196 1, NO DEDUCTION IS ALLOWABLE TO THE ASSESSEE U/S 80IB AND FOR THE PURP OSE OF COMPUTATION OF BOOK PROFIT, DEDUCTION ALLOWABLE U/S 80-IB IS NOT R EQUIRED TO BE CONSIDERED EITHER FOR ADDITION OR SUBTRACTION FROM THE PROFIT/LOSS AS PER P & L ACCOUNT. HENCE, THERE IS NO MISTAKE IN THE TRI BUNAL ORDER AS PER M.A.NO.221/AHD/2009 5 WHICH, IT IS HELD BY THE TRIBUNAL THAT DEDUCTION U/ S 80-IB(9) HAS NO RELATION TO THE COMPUTATION OF THE PROFIT U/S 115JA OF THE INCOME TAX ACT, 1961. THIS FINDING OF THE TRIBUNAL HAS GOT NO CONN ECTION WITH THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SUN ENGINEERING WORKS P. LTD. (SUPRA) AND THEREFORE, WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 3/5 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER4/5 .OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 11/5 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.11/5 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11 /5/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .