ITO, JODHPUR V. Manish Jhanwar, JODHPUR

MA 44/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2322 (ITAT-JODHPUR)
• Duration Of Justice: 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 21-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Keywords: Business income

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO. 44 TO 46 /JODH/2014 (ARISING OUT OF ITA NO S . 176 TO 178 /JODH/201 3 ) ( A . Y S. : 200 7 - 0 8 TO 2009 - 1 0) ITO, WARD - 1(3), JODHPUR. VS. MANISH JHANWAR , C/O M/S. R.P. MUNDRA & C O., OUTSIDE SIWANCHI GATE, JODHPUR. (APPELLANT) PAN NO. ABEPJ 9313 N (RESPONDENT) APPELLANT BY : SHRI RAJENDRA JAIN DEPARTMENT BY : SHRI JAI SINGH - D.R. DAT E OF HEARING : 27 - 0 8 - 2014 DATE OF PRONOUNCEMENT : 28 - 0 8 - 201 4 ORDER PER N.K. SAINI , A .M . TH ESE MISCELLANEOUS APPLICATION S FILED BY THE DEPARTMENT ARE ARIS ING OUT OF THE COMMON ORDER DATED 1 0 - 0 9 - 2013 IN ITA NO S . 176 TO 178 /JODH/201 3 FOR THE A.Y S . 200 7 - 0 8 TO 2009 - 10. 2 THE CONTENTION OF THE DEPARTMENT IN THESE MISC. APPLICATION S IS COMMON. FOR THE SAKE OF CONVENIENCE AND BREVITY, THE CONTENTS OF THE MISC. APPLICATION NO. 44/JODH/2014 ARE R EPRODUCED WHICH READ AS UNDER: - 2 1. THE ABOVE ITA 176/JODHPUR/2012 WAS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE ID. COMMISSIONER OF INCOME TAX (APPEALS), JODHPUR DATED 31.01.2013. 2. IN THIS APPEAL HONBLE BENCH DECIDED THAT 14. WE HAVE CONSIDERED TH E SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL ON RECORD. WE ARE OF THE VIEW THAT THIS ISSUE IS SQUARELY COVERED VIDE ORDER DATED 17/07/2013 IN ITA NO.38/JODH/2013 FOR ASSESSMENT YEAR 2009 - 10 IN THE CASE OF M/S SURAJ EXPORT INDIA , SARDAR SAHAR, CHURU VS ITO WARD - 2 (SUPRA), WHEREIN BY FOLLOWING THE EARLIER ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF AZTECH SHIVA HANDICRAFTS PVT. LTD VS ADDL. CIT IN ITA NO. 353/JU/2012 FOR AY 2009 - 10 ORDER DATED 30/01/2013, THE SIMILAR ISSUE HAS BEEN DECIDED IN FAVOUR OF ASSESSEE. THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 3 OF THE ORDER DATED 17/07/2013 WHICH READ AS UNDER: - 3. THE ISSUE WHETHER THE DUTY DRAW BACK RECEIVED BY THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 10BA OF THE ACT OR NO T HAS BEEN DECIDED BY THIS VERY BENCH IN FAVOUR OF THE ASSESSEE, IN CASE OF AZTECH SHIVA HANDICRAFTS PVT. LTD VS ADDL. CIT IN ITA NO. 353/JU/2012 FOR AY 2009 - 10 AND OTHERS VIDE ORDER DATED 30.01.2013 IN THAT DECISION IT HAS BEEN HELD BY US IN ITS RELEVANT PARA 8 (AT PAGE 26) TO PARA 13 (AT PAGE 31 OF THE ORDER) AS UNDER 8. WE HAVE COGITATED THAT RIVAL ....... IN FAVOUR OF ASSESSEE. PARA 1.1.14 AS REGARD TO DEDUCTION U/S 1O BA IN RESPECT -------- IN THE LIGHT OF ABOVE DISCUSSION WE FIND THAT THE ASSESSEE IS EN TITLED TO DEDUCTION U/S 10BA ON DEPB AS IN ACCORDANCE WITH SECTION 28 OF THE ACT THESE ARE BUSINESS INCOME 10 . ---------------------------------------- 11 ------------------------------------- 12 ----------------------------------------- SINCE THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE AFORESAID REFERRED TO ORDER DATED 17/07/2013 IN THE CASE OF M/S 3 SURAJ EXPORT INDIA, SARDAR SAHAR, CHURU VS ITO WARD - 2 ( SUPRA), SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER, W E SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 1 0 BA OF THE ACT. 3. WHEREAS THE AO DISALLOWED EXEMPTION OF RS 15,82,848 U/S 10BA IN ASSESSMENT ORDER STATING THAT TH E ASSESSEE FAILED TO FULFILL THE CONDITION MENTIONED IN CLAUSE (A) OF SUB SECTION (2) OF SECTION 10BA , THAT THE UNDERTAKING MANUFACTURES OR PRODUCES THE ELIGIBLE ARTICLE OR THINGS 4. IT IS SUBMITTED THAT THE ISSUE COVERED IN THE CASE OF AZTECH SHIVA HANDICR AFTS PVT. LTD VS ADDL. CIT IN ITA NO. 353/JU/2012 FOR AY 2009 - 10 ORDER DATED 30/01/2013AND M/S SURAJ EXPORT INDIA, SARDAR SAHAR, CHURU VS ITO WARD - 2 WERE RELATED TO THE ELIGIBILITY OF DDB FOR EXEMPTION U/S 10BA. WHEREAS IN THE PRESENT CASE THE MAIN ISSUE I S WHETHER THE ASSESSEE IS ENGAGED IN MANUFACTURING ACTIVITIES ELIGIBLE FOR DEDUCTION U/S 10BA OR NOT. 5. THIS MA IS BEING FILED AGAINST THE ABOVE OBSERVATION AND DECISION (AT PARA NO. 14 OF THE ORDER) OF THE HONBLE BENCH. 6. IT IS THEREFORE, PRAYED THAT THE O RDER MAY BE RECALLED AND FRESH ORDER MAY BE PASSED ON THE ISSUE OF ELIGIBILITY U/S 10BA OF THE IT ACT. 3. DURING THE COURSE OF HEARING, LD. D.R. REITERATED THE CONTENTS OF THE AFORESAID MISC. APPLICATION AND PRAYED THAT THE ORDER DATED 10/09/2013 MAY B E RECALLED. 4 4 . IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO APPARENT MISTAKE POINTED OUT BY THE DEPARTMENT IN THE ORDER OF THE TRIBUNAL PASSED IN I.T.A.NOS. 176 TO 178/JODH/201 3 DATED 10/09/2013 AND THE SAID ORDE R CANNOT BE RECALLED IN THE GRAB OF SECTION 254(2 ) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) . IT WAS STATED THAT IT IS WRONGLY MENTIONED IN THE MISC. APPLICATION THAT THE ISSUE INVOLVED WAS NOT RELATING TO ELIGIBILITY OF DUTY D RAW BACK (DDB) FOR EX E M PTION U/S. 10 BA OF THE ACT BUT TO MANUFACTURING ACTIVITIES . IT WAS CONTENDED THAT THE ACTIVITIES OF THE ASSESSEE AND THAT OF M/S. SURAJ EXPORTS INDIA, SARDAR SHAHAR, CHURU ARE IDENTICAL AND THE ITAT FOLLOWED THE ORDER DATED 17/07/ 2013 IN I.T.A.NO. 38/JODH/2013 IN THE CASE OF THE SAID FIRM FOR THE A.Y. 2009 - 10 , THEREFORE, THE MISC. APPLICATION S FILED BY THE DEPARTMENT DESERVE TO BE DISMISSED . 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE M ATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE DEPARTMENT WANT TO GET THE ORDER DATED 10/09/2013 REVIEWED WHICH IS NOT PERMISSIBLE U/S. 254 (2) OF THE ACT . IN THE INSTANT CASE, ITAT WHILE PASSING THE ORDER DATED 10/09/2013 CAME TO T HE CONCLUSION ON THE BASIS OF THE EARLIER DECISION DATED 17/07/2013 IN THE CASE OF M/S. SURAJ EXPORTS INDIA, SARDAR SHAHAR, CHURU VS. ITO (SUPRA) THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S. 10BA OF THE ACT . IN THE SAID DECISION DATED 17/07/2013, TH E EARLIER ORDER DATED 5 30/01/2013 IN THE CASE OF AZTECH SHIVA HANDICRAFTS PVT. LTD. VS. ACIT IN I.T.A.NO. 353/JODH/2012 HAS BEEN FOLLOWED AND IT HAS BEEN CATEGORICALLY STATED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS INVOLVED IN THE AFOR ESAID REFERRED TO CASES . WE THEREFORE, DO NOT SEE ANY MERIT IN THESE MISC. APPLICATIONS OF THE DEPARTMENT AND ACCORDINGLY SAME ARE DISMISSED. 6. IN THE RESULT, THE MISC. APPLICATION S FILED BY THE DEPARTMENT ARE DISMISSED . (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 - 0 8 - 201 4 . ) S D/ - SD/ - (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 TH AUGUST , 201 4 V R/ - COPY TO: - 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CI T(A) 5. THE DR 6. THE GUARD FILE SR. PRIVATE SECRETARY, ITAT, JODHPUR.