Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 2253 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
10 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
21-06-2019
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2007-2008
Appeal Filed On
03-08-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.P. NOS. 265 & 266/BANG/2018 (IN ITA NO S . 226 & 229 / BANG/201 3 ) ASSESSMENT YEAR S : 2007 - 08 & 2008 - 09 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, BANGALORE. VS. SHRI S.S. BAKKESH, PROP: BAKKESH RICE INDUSTRIES, LOKIKERE ROAD, DAVANGERE. PAN: ABZPB5755B APPELLANT RESPONDENT ASSESSEE BY : SMT. SHEETAL BORKAR, ADVOCATE REVENUE BY : DR. SHANKAR PRASAD K., ADDL. CIT (DR) DATE OF HEARING : 14 . 0 6 .201 9 DATE OF PRONOUNCEMENT : 21 . 0 6 .201 9 O R D E R PER SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER; THESE TWO M.PS. ARE FILED BY THE REVENUE STATING THAT THERE ARE SOME APPARENT MISTAKES IN THE IMPUGNED TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED. PARA NO. 4 OF THE M.P. FILED BY THE REVENUE IS RELEVANT IN THIS REGARD BECAUSE IN THIS PARA ONLY, THE REVENUE HAS POINTED OUT THE ALLEGED APPARENT MISTAKES IN THE IMPUGNED TRIBUNAL ORDER AND HENCE, WE REPRODUCE PARA 4 OF THE M.P. FILED BY THE REVENUE. 4. AGAINST THE ORDER OF CIT(A), THE REVENUE PREFERRED APPEAL BEFORE THIS HON'BLE TRIBUNAL. THIS HON'BLE TRIBUNAL PROCEEDED ON THE BASIS THAT THE ELIGIBILITY OF THE ASSESSEE UNDER SECTION 80JJA OF THE ACT HAS BEEN ACCEPTED FOR THE ASSESSMENT YEAR'S 2004-05, 2005-06 AND 2006- 07 AND HENCE THE ASSESSEE CANNOT BE DENIED THE ELIGIBILITY OF CLAIM UNDER SECTION 80JJA OF THE AC: FOR THE CURRENT ASSESSMENT YEAR, BY APPLYING THE PRINCIPLES OF CONSISTENCY. WITH GREAT RESPECT, THE ASSESSING OFFICER NEVER DISPUTED THE ELIGIBILITY OF THE ASSESSEE FOR CLAIM UNDER SECTION 80JJA OF THE ACT IN THE ORDER OF ASSESSMENT, THOUGH THE SAME WAS EXAMINED IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE REAL DISPUTE ARISING OUT OF THE ASSESSMENT ORDER IS REGARDING THE QUANTUM OF THE DEDUCTION TO BE ALLOWED UNDER SECTION 80JJA OF THE ACT. IN VIEW OF THE FAILURE ON THE PART OF THE ASSESSEE TO SUBSTANTIATE THE PURCHASE OF RAW MATERIALS REQUIRED FOR MANUFACTURE AND PRODUCTION OF THE QUANTITY OF THE BIO-FERTILISERS; AND ASSESSEE'S M.P. NOS. 265 & 266/BANG/2018 (IN ITA NOS. 226 & 229/BANG/2013) PAGE 2 OF 6 COMPLETE FAILURE TO SUBSTANTIATE THE AVAILABILITY OF PLANT AND MACHINERY, PURCHASE OF RAW MATERIALS FOR MANUFACTURE OF BIOFUEL PELLETS, PARTIAL DEDUCTION WAS ALLOWED IN RESPECT OF BIO-FERTILISERS AND ENTIRE DISALLOWANCE WAS MADE IN RESPECT OF BIOFUEL PELLETS. AS THIS HON'BLE COURT TRIBUNAL HAS NOT ADJUDICATED THE ISSUE REGARDING THE QUANTUM OF DEDUCTION ALLOWABLE TO THE ASSESSEE UNDER SECTION 80JJA OF THE ACT, A MISTAKE HAS CREPT IN THE ORDER, WHICH IS APPARENT ON THE RECORD. HENCE THIS APPLICATION SEEKING RECTIFICATION OF THE MISTAKE. 2. IN COURSE OF HEARING, IT WAS SUBMITTED BY LD. DR OF REVENUE THAT AGAINST THE IMPUGNED TRIBUNAL ORDER DATED 28.02.2017, THE REVENUE FILED AN APPEAL BEFORE HON'BLE KARNATAKA HIGH COURT WHICH WAS DECIDED BY HON'BLE KARNATAKA HIGH COURT IN ITA NO. 987 OF 2017 AS PER JUDGMENT DATED 05.07.2018. HE SUBMITTED A COPY OF THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COURT AND POINTED OUT THAT HON'BLE KARNATAKA HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE REVENUE AS WITHDRAWN WITH THE LIBERTY TO THE REVENUE TO FILE APPROPRIATE M.P. BEFORE THE TRIBUNAL WITHIN 30 DAYS FROM THE DATE OF THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COURT DATED 05.07.2018. HE SUBMITTED THAT THE PRESENT M.P. HAS BEEN FILED BY REVENUE BEFORE THE TRIBUNAL ON 03.08.2018 WHICH IS BEFORE THE EXPIRY OF 30 DAYS FROM THE DATE OF JUDGMENT OF HON'BLE KARNATAKA HIGH COURT AND THEREFORE, THIS M.P. OF REVENUE SHOULD BE ADMITTED AND DECIDED ON MERIT ALTHOUGH IF IT IS COUNTED FROM THE DATE OF TRIBUNAL ORDER, ONE MAY SAY THAT THE M.P. OF REVENUE IS TIME BARRED. 3. REGARDING THE MERIT OF THE M.P., HE SUBMITTED THAT AS STATED BY THE AO IN PARA 4 OF THE M.P., AO NEVER DISPUTED THE ELIGIBILITY OF THE ASSESSEE FOR CLAIM U/S. 80JJA OF IT ACT IN THE ORDER OF ASSESSMENT AND THE DISPUTE RAISED BY THE AO IS REGARDING QUANTUM OF DEDUCTION TO BE ALLOWED U/S. 80JJA OF IT ACT BUT THE TRIBUNAL HAS SIMPLY DECIDED THE ISSUE ON THIS BASIS THAT IN ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07, THE ASSESSMENT WAS REOPENED U/S. 147 ON THE BASIS OF MATERIAL AVAILABLE BEFORE THE AO IN ASSESSMENT YEAR 2007-08 I.E. PRESENT YEAR AND IN THOSE THREE YEARS, THE AO HIMSELF HAS ACCEPTED THE CLAIM OF THE ASSESSEE U/S. 80JJA OF IT ACT AND ON THE BASIS OF THESE FACTS, THE TRIBUNAL PROCEEDED ON THIS BASIS THAT AS PER THE PRINCIPLE OF CONSISTENCY, THE CLAIM OF ASSESSEE U/S. 80JJA OF IT ACT IN THE PRESENT YEAR ALSO IS TO BE ALLOWED. HE SUBMITTED THAT THE TRIBUNAL SHOULD HAVE EXAMINED THE ISSUE IN THE PRESENT YEAR REGARDING QUANTUM OF DEDUCTION ALLOWABLE IN PRESENT YEAR M.P. NOS. 265 & 266/BANG/2018 (IN ITA NOS. 226 & 229/BANG/2013) PAGE 3 OF 6 AND NOT REGARDING ELIGIBILITY OF ASSESSEE FOR DEDUCTION IN THE PRESENT YEAR U/S. 80JJA OF IT ACT. AT THIS JUNCTURE, IT WAS OBSERVED BY THE BENCH THAT AS PER THE APPEAL IN ITA NO. 226/BANG/2013 FILED BY THE REVENUE BEFORE THE TRIBUNAL FOR ASSESSMENT YEAR 2007-08, ALTHOUGH 10 GROUNDS ARE RAISED BY THE REVENUE BUT AS PER THESE GROUNDS, THE DISPUTE RAISED BY THE REVENUE IS REGARDING ELIGIBILITY OF ASSESSEE FOR DEDUCTION U/S. 80JJA OF IT ACT AND THERE IS NO GROUND REGARDING ANY DISPUTE IN RESPECT OF QUANTUM OF DEDUCTION SO ALLOWABLE U/S. 80JJA OF IT ACT. THE BENCH ALSO POINTED OUT THAT SIMILARLY, IN ASSESSMENT YEAR 2008-09 ALSO IN ITA NO. 229/BANG/2013, THE DEPARTMENT HAS RAISED AS MANY AS 9 GROUNDS OF APPEAL AND IN THIS YEAR ALSO, THE GROUNDS RAISED BY THE REVENUE ARE IN RESPECT OF ELIGIBILITY OF ASSESSEE FOR DEDUCTION U/S. 80JJA OF IT ACT AND THERE IS NO GROUND IN THIS YEAR ALSO REGARDING QUANTUM OF DEDUCTION ALLOWABLE TO ASSESSEE U/S. 80JJA OF IT ACT AND THEREFORE, THE CONTENTION RAISED BY THE REVENUE IN M.P. THAT THE TRIBUNAL SHOULD HAVE DECIDED ABOUT THE QUANTUM OF DEDUCTION ALLOWABLE U/S. 80JJA OF IT ACT IS NOT IN LINE WITH THE GROUNDS RAISED BY THE REVENUE IN THESE TWO YEARS BEFORE THE TRIBUNAL. IN REPLY, THE LD. DR OF REVENUE COULD NOT POINT OUT ANY GROUND IN THIS REGARD HAVING BEEN RAISED BY REVENUE BEFORE THE TRIBUNAL IN THESE TWO YEARS IN RESPECT OF QUANTUM OF DEDUCTION ALLOWABLE TO ASSESSEE U/S. 80JJA OF IT ACT. THE LD. AR OF ASSESSEE SUBMITTED THAT THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALREADY REPRODUCED IDENTICAL PARA NO. 4 OF THE M.P. FILED BY THE REVENUE IN THESE TWO YEARS FILED BY THE REVENUE AND FROM THE SAME, IT IS SEEN THAT THIS IS THE ONLY CONTENTION RAISED BY REVENUE IN THESE TWO M. PS. THAT THE TRIBUNAL HAS NOT ADJUDICATED THE ISSUE REGARDING THE QUANTUM OF DEDUCTION ALLOWABLE TO THE ASSESSEE U/S. 80JJA OF IT ACT AND FOR THIS REASON, A MISTAKE HAS CREPT IN THE TRIBUNAL ORDER WHICH IS APPARENT ON THE RECORD AND THE SAME SHOULD BE RECTIFIED. AT THIS JUNCTURE, WE FEEL IT PROPER TO REPRODUCE THE GROUNDS RAISED BY REVENUE IN BOTH THE YEARS WHICH ARE AS UNDER. M.P. NOS. 265 & 266/BANG/2018 (IN ITA NOS. 226 & 229/BANG/2013) PAGE 4 OF 6 ITA NO. 226/BANG/2013 ASSESSMENT YEAR 2007-08 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HUBLI, IS OPPOSED TO LAW AND NOT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF THE CIT(A) IS PERVERSE IN SO FAR AS THE REASONS GIVEN FOR ALLOWING THE DEDUCTION U/ S.80JJA AS CLAIMED BY THE ASSESSEE. 3. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HUBLI, IS AS IT IS NOT A SPEAKING ORDER. 4. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE FACTS OF THE CASE FOR THE AY 2007-08 IS DIFFERENT FROM THAT OF AYS 2004-05, 2005-06 & 2006-07. 5. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT NO SOLID WASTE WAS SOLD TO THE ASSESSEE BY THE CITY CORPORATION DURING THE RELEVANT PREVIOUS YEAR RELEVANT TO AY 2007-08. 6. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAD NOT MAINTAINED ANY REGISTER EVIDENCING THE ENTRY OF SOLID WASTE TO HIS PREMISES. 7. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAD NOT MAINTAINED ANY STOCK REGISTER EVIDENCING THE UTILIZATION OF SOLID WASTE IN THE MANUFACTURING PROCESS OF THE ASSESSEE. 8. THE CIT(A) FAILED TO RECOGNIZE THAT THE CONCEPT OF RES JUDICATA IS NOT APPLICABLE FOR INCOME-TAX ASSESSMENTS 9. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED UPON AT THE TIME OF HEARING. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY OF GROUNDS. ITA NO. 229/BANG/2013 ASSESSMENT YEAR 2008-09 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HUBLI, IS OPPOSED TO LAW AND NOT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF THE CIT(A) IS PERVERSE IN SO FAR AS THE REASONS GIVEN FOR ALLOWING THE DEDUCTION U/S.80JJA AS CLAIMED BY THE ASSESSEE. 3. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HUBLI, IS AS IT IS NOT A SPEAKING ORDER. 4. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE FACTS OF THE CASE FOR THE AY 2008-09 IS DIFFERENT FROM THAT OF AYS 2004-05, 2005-06 & 2006- 07. M.P. NOS. 265 & 266/BANG/2018 (IN ITA NOS. 226 & 229/BANG/2013) PAGE 5 OF 6 5. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAD NOT MAINTAINED ANY REGISTER EVIDENCING THE ENTRY OF SOLID WASTE TO HIS PREMISES. 6. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAD NOT MAINTAINED ANY STOCK REGISTER EVIDENCING THE UTILIZATION OF SOLID WASTE IN THE MANUFACTURING PROCESS OF THE ASSESSEE. 7. THE CIT(A) FAILED TO RECOGNIZE THAT THE CONCEPT OF RES JUDICATA IS NOT APPLICABLE FOR INCOME-TAX ASSESSMENTS 8. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED UPON AT THE TIME OF HEARING. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY OF GROUNDS. 5. FROM THE GROUNDS RAISED BY THE REVENUE IN THESE TWO YEARS AS REPRODUCED ABOVE, IT IS SEEN THAT THERE IS NO GROUND ON THIS ASPECT THAT QUANTUM OF DEDUCTION ALLOWABLE TO ASSESSEE U/S. 80JJA OF IT ACT IS IN DISPUTE AND THE SAME SHOULD BE DECIDED. ALL THE GROUNDS RAISED BY THE REVENUE IN THESE TWO YEARS ARE IN RESPECT OF ALLOWABILITY OF DEDUCTION ALLOWABLE TO ASSESSEE U/S. 80JJA OF IT ACT. HENCE, IN OUR CONSIDERED OPINION, THERE IS NO MERIT IN THESE TWO M. PS. FILED BY REVENUE CONTENDING THEREIN THAT THE TRIBUNAL HAS NOT ADJUDICATED THE ISSUE REGARDING THE QUANTUM OF DEDUCTION ALLOWABLE TO ASSESSEE U/S. 80JJA OF IT ACT. 6. IN THE RESULT, BOTH THE M.PS. FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST JUNE, 2019. /MS/ M.P. NOS. 265 & 266/BANG/2018 (IN ITA NOS. 226 & 229/BANG/2013) PAGE 6 OF 6 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.
