ESTER LUB TECHNOLOGIES, V. ITO 15(2)(3),

MA 670/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0969 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 31-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI RAJENDRA SINGH , A M & SHRI VIJAY PAL RAO , J M MA NO. 67 0 /MUM/20 1 2 (ARISING OUT OF ITA NO. 4154 /M/201 1 ) ( ASSESSMENT YEAR :20 0 7 - 0 8 ) M/S ESTER LUB TECHNOLOGIES, 6, KAMALDEEP INDL. E STATE, SONAWALA CROSS LANE NO.2, GOREGAON (E), MUMBAI VS. ITO 15(2)(3), MUMBAI PAN NO. : A A CPB 5308 C ( APP LICANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : MR. SANJEEV JAIN DATE OF HEARING : 16 TH AUGUST , 2013 DATE OF PR ONOUNCEMENT : 16 TH AUGUST , 2013 O R D E R PER SHRI RAJENDRA SINGH , A M : TH IS MISCELLANEOUS APPLICATION HA S BEEN PREFERRED BY THE ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 13 - 6 - 2012 OF THE TRIBUNAL PASSED IN ITA NO. 4154 /M/2011 ON THE GROUND OF SOME APPARENT MISTAKE . 2 . IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HAS POINTED OUT THAT THE TRIBUNAL IN PARA 6.1 OF THE ORDER HELD THAT DEDUCTION UNDER SECTION 80IB OF THE ACT COULD NOT BE DISALLOWED ONLY ON THE GROUND THAT THE PRODUCT BY THE AS SESSEE HA D BEEN USED AS A RAW MATERIAL BY THE SISTER CONCERN. THE TRIBUNAL, HOWEVER, INADVERTENTLY MENTIONED THAT IN CASE THE PRODUCT IS A DISTINCT COMMERCIAL PRODUCT DIFFERENT FROM THE RAW MATERIALS USED BY THE ASSESSEE, THE CLAIM HA D TO BE DISALLOWED , M.ANO. 67 0 /201 2 2 INSTEAD OF BEING ALLOWED. IT, THEREFORE, REQUESTED THAT THE MISTAKE MAY BE RECTIFIED AND THE WORD DISALLOWED MAY BE SUBSTITUTED AS THE WORD ALLOWED . 3 . AT THE TIME OF HEARING OF THIS MISCELLANEOUS APPLICATION, NONE APPEARED ON BEHALF OF THE ASSESSE E, THOUGH THE NOTICE OF HEARING HAD BEEN GIVEN WELL IN ADVANCE. WE, THEREFORE, PROCEED TO DECIDE THIS MISCELLANEOUS APPLICATION AFTER HEARING THE LEARNED DR AND AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 4 . WE HAVE PERUSED THE RECORDS AND CONSIDE RED THE MATTER CAREFULLY. THE DISPUTE RAISED IN THE APPEAL WAS REGARDING THE ALLOWABILITY OF DEDUCTION UNDER SECTION 80IB OF THE IT ACT. THE DEDUCTION UNDER THE SAID SECTION IS ALLOWABLE TO AN ASSESSEE MANUFACTURING OR PRODUCING ARTICLE NOT ARTICLE BEING ARTICLE MENTIONED IN THE ELEVENTH SCHEDULE. IT WAS NOT IN DISPUTE THAT THE PRODUCT MANUFACTURED BY THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION, BUT THE DISPUTE WAS AS TO WHETHER THE ACTIVITY OF THE ASSESSEE COULD BE CONSIDERED AS MANUFACTURING ACTIVITY. THE AS SESSEE SUBMITTED THAT IT WAS PRODUCING THE EMULSIFIER, WHICH WAS A NEW COMMERCIAL PRODUCT QUITE DISTINCT AND DIFFERENT FROM THE RAW MATERIALS USED AND, THEREFORE, THE ACTIVITY WAS A MANUFACTURING ACTIVITY . THE TRIBUNAL IN PARA 6.1 OF THE ORDER OBSERVED THA T THE DEDUCTION UNDER SECTION 80IB COULD NOT BE DISALLOWED ONLY ON THE GROUND THAT THE PRODUCT BY THE ASSESSEE HAS M.ANO. 67 0 /201 2 3 BEEN USED AS A RAW MATERIAL BY THE SISTER CONCERN. THE TRIBUNAL ALSO OBSERVED THAT IN CASE THE PRODUCT IS A DISTINCT COMMERCIAL PRODUCT DIFFE RENT FROM THE RAW MATERIALS USED BY THE ASSESSEE, THE CLAIM HAS TO BE DISALLOWED. IN FACT, WHEN THE PRODUCT IS COMMERCIALLY DIFFERENT FROM RAW MATERIAL USED, IT HAD TO BE CONSIDERED AS MANUFACTURING AND CLAIM HAD TO BE ALLOWED. H OWEVER, THERE APPEARS TO BE A TYPOGRAPHICAL ERROR IN USING THE WORD DISALLOWED , INSTEAD OF THE WORD ALLOWED . THIS IS AN APPARENT MISTAKE. WE, THEREFORE, AMEND THE ORDER BY HOLDING THAT THE WORD DISALLOWED APPEARING IN THE 12 TH LINE OF PARA 6.1 OF THE ORDER WILL BE SUBSTITUT ED BY THE WORD ALLOWED . 5 . RESULTANTLY , MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH D AY OF AUG , 2013 . SD/ - SD/ - ( VIJAY PAL RAO ) ( RAJENDRA SIN GH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 16 /08/2013 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - X, MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TR UE COPY// BY ORDER, ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI