Matrix Telecom Pvt. Ltd., Baroda V. The ACIT., Circle-4, Baroda

MA 253/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5114 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 29-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Assessee Lawyers: S N SOPARKAR SRAR
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI D.C. AGARWAL, ACCOUNTANT MEMBER M.A.NO.253 & 255/AHD/2009 (ARISING OUT WITH ITA NO.1280 & 2827/AHD/2007 ASSESSMENT YEAR:2004-05 & 2003-04 DATE OF HEARING:8.10.10 DRAFTED:8.10. 10 MARTIX TELECOM PVT. LTD., C-1/394, GIDC ESTATE, MAKARPURA, BARODA PAN NO.AABCM5892Q MARTIX TELECOM PVT. LTD., C-1/394, GIDC ESTATE, MAKARPURA, BARODA PAN NO.AABCM5892Q V/S . V/S . DCIT, CIRCLE-4(1), BARODA DCIT, CIRCLE-4(1), BARODA (ORIGINAL APPELLANT) (ORIGINAL RESPONDENT) (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI S.N.SOPARKAR, SR-AR REVENUE BY:- SHRI RAJIB JAIN, DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- BY WAY OF THESE MISCELLANEOUS APPLICATIONS (MA), AS SESSEE HAS REQUESTED THAT THE TRIBUNALS ORDER DATED 14-08-2007 SUFFERS FROM MISTAKE APPARENT FROM RECORD AS THE GROUND NO.2 RAISED BY ASSESSEE VIDE A PPEAL MEMO HAS NOT BEEN ADJUDICATED. IT WAS CONTENDED THAT THERE IS AN ERRO R APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS GROUND NO.2 RAISED BY ASSESSEE IN RESPECT OF DISALLOWANCE OF DEDUCTION U/S.80IB ON ESTIMATED INCOME FROM REPAIRS & LABOUR CHARGES AS COMPUTED BY LOWER AUTHORITIES WAS NOT ON ACTUAL INCOME EARNE D AS COMPUTED BY THE ASSESSEE. THE SPECIFIC GROUND NO.2 RAISED BEFORE TRIBUNAL REA DS AS UNDER:- 2. THE LEARNED ASST. COMMISSIONER OF INCOME-TAX HA S ERRED IN LAW AND ON FACTS OF APPELLANTS CASE IN ESTIMATING THE INCOME EARNED ON REPAIR & LABOUR CHARGES RECEIPTS FOR THE PURPOSE OF DISALLOWING THE DEDUCTION U/S 80IB OF THE ACT. MA NO.253 &255/AHD/2009 ( A/O. ITA NO.1280 & 2827/A /07) MARTIX TELECOM PVT. LTD. V. DCI, CIR-4(1) BRD . PAGE 2 YOUR APPELLANT MOST HUMBLY SUBMITS THAT ON THE FACT S AND CIRCUMSTANCES OF ITS CASE AND IN LAW THE LEARNED ASSTT. COMMISSIONER OUG HT TO HAVE CONSIDER THE ACTUAL INCOME EARNED FOR THE PURPOSE OF DISALLOWING DEDUCTION U/S. 80IB OF THE ACT. 2. THE LD.SR COUNSEL FOR THE ASSESSEE, SHRI S.N.SOP ARKAR STATED THAT THE DISALLOWANCE CANNOT BE MADE ON ESTIMATING AT 8% OR 10% BUT ACTUAL INCOME OF REPAIR AND LABOUR CHARGES SHOULD HAVE BEEN DISALLOW ED. 3. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND THA T THE TRIBUNAL HAS COMMITTED AN ERROR APPARENT FROM RECORD AS GROUND NO.2 IS NOT ADJUDICATED. WE FURTHER FIND THAT THE PLEA OF THE ASSESSEE THAT ONLY ACTUAL INCOME EA RNED FROM THE REPAIR AND LABAOUR CHARGES SHOULD HAVE BEEN IGNORED FOR THE PURPOSES O F COMPUTATION OF DEDUCTION U/S.80IB OF THE ACT. IN VIEW OF THE ABOVE, WE SET A SIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER TO RE-COMPUTE THE DEDUCTION AFTER VERIFYING THE ACTUAL INCOME EARNED FROM REPAIR AND LABAOUR CHARGES AND DECIDE T HE ISSUE. ACCORDINGLY, QUA GROUND NO.2 WE RECALL THE ORDER AND SET ASIDE THE S AME TO THE FILE OF ASSESSING OFFICER. 4. IN THE RESULT, ASSESSEES MAS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 08 /10/2010 SD/- SD/- (D.C.AGARWAL) (M AHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 08/10/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-I & III, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD