Pravin Air Products Pvt.Ltd., Baroda V. THE Jt.CIT.,Spl.Range-2, Baroda

MA 75/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8476 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 1998-1999
• Appeal Filed On: 05-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: SUNIL H TALATI
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI MUKUL KUMAR SHRAWAT, JM AND SHRI A. MO HAN ALANKAMONY, AM) M. A. NO.75, 76, 77 AND 78/AHD/2010 (IN ITA NO.299/AHD/2003, 2724/AHD/2005, 1519 & 1520 AHD/2008 - A. Y. 1998-99, 200-03,2003-04 AND 2005-06) PRAVAN AIR PRODUCTS PVT. LTD., VADSAR ROAD, MAKARPURA GIDC, BARODA 390 001 PA NO. AABCP 2661 G VS THE J. C. I. T., SP. RANGE-2, BARODA / THE A. C. I. T., CIR-4, BARODA (APPLICANT) (RESPONDENT) APPLICANT BY SHRI SUNIL H. TALATI, AR RESPONDENT BY SHRI B. L. YADAV, SR. DR DATE OF HEARING: 08-06-2012 DATE OF PRONOUNCEMENT: 15-06-2012 O R D E R PER A. MOHAN ALANKAMONY: THE ASSESSEE HAS FILED THESE FOUR MISC. APPLICATIONS I.E. M.A. NOS.75 TO 7 8/AHD/2010, SEEKING RECTIFICATION OF THE ORDERS PASSED BY THE T RIBUNAL DATED 11- 07-2008 IN ITA NO.299/AHD/2003 FOR A.Y. 1998-99, DA TED 17-10-2008 IN ITA NO.2724/AHD/2005 FOR AY 2002-03, DATED 08-08 -2008 IN ITA NO.1519/AHD/2008 FOR AY 2003-04 AND DATED 08-08-200 8 IN ITA NO.1520/AHD/2008 FOR AY 2005-06 ON THE SAME ISSUE. SINCE ALL THE FOUR MISC. APPLICATIONS ARE RELATED TO THE SAME ISS UE, THEY ARE TAKEN UP TOGETHER FOR CONSIDERATION. MA NO.75 TO 78/AHD/2010 PRAVAN AIR PRODUCTS PVT. LTD. VS JCIT, SP. RANGE-2, BARODA 2 2. THE APPLICANT STATES IN ITS WRITTEN SUBMISSION THAT THE TRIBUNAL AFTER CONSIDERING VARIOUS ARGUMENTS WITH REGARD TO THE CLAIM OF DEDUCTION U/S 80 IA OF THE IT ACT HAD ERRONEOUSLY R EJECTED THE SAME AND CONFIRMED THE ORDER OF THE LEARNED CIT(A). IT W AS FURTHER STATED THAT THE APPLICANT WAS CARRYING ON THE BUSINESS OF MANUFACTURING AND FILLING OF ARGON GAS AT KARJAN UNIT. HOWEVER, THE T RIBUNAL HAD REJECTED THE CLAIM OF DEDUCTION U/S. 80IA OF THE ACT BY THE APPLICANT BASED ON THE PREMISES THAT THE BUSINESS ACTIVITY CARRIED ON BY THE ASSESSEE WAS NOT MANUFACTURING ACTIVITY AND THEREFORE DID NO T FULFILL THE PRIMARY CONDITIONS LAID DOWN U/S 80 IA OF THE ACT. IT WAS A LSO SUBMITTED THAT THOUGH THE TRIBUNAL HAD TAKEN NOTE OF THE FACT THAT THE ASSESSEE WAS SUBJECTED TO PAYMENT OF EXCISE DUTY TO THE CENTRAL EXCISE DEPARTMENT WHO HAD RECOGNIZED THE ACTIVITY OF THE A PPLICANT TO BE THAT OF MANUFACTURING AND THE CERTIFICATES ISSUED B Y THE SALES TAX AUTHORITIES ALSO SUPPLEMENTED THE SAME, YET THE BEN CH ERRONEOUSLY HELD THE ASSESSEES UNIT TO NOT BE A MANUFACTURING UNIT ELIGIBLE FOR CLAIMING EXEMPTION U/S 80 IA OF THE ACT. THE APPLIC ANT ALSO DREW ATTENTION TO THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ARIHANT MARBLES PVT. LTD., REPORTED IN 320 ITR 79 ( SC) WHEREIN IT WAS HELD THAT WHEN THE ASSESSEE IS PAYING EXCISE DUTY AND RECOGNIZED BY VARIOUS GOVERNMENT AUTHORITIES AS MAN UFACTURER THEN THE ACTIVITY CARRIED ON BY THE ASSESSEE WILL A MOUNT TO MANUFACTURE OR PRODUCTION ENTITLED THE ASSESSEE TO CLAIM BENEFIT U/S 80 IA OF THE ACT. FURTHER, ATTENTION WAS DRAWN TO THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE O F ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE, 305 ITR 227 (SC) W HEREIN IT WAS LAID DOWN THAT RECTIFICATION OF ORDER STEMS FROM TH E FUNDAMENTAL MA NO.75 TO 78/AHD/2010 PRAVAN AIR PRODUCTS PVT. LTD. VS JCIT, SP. RANGE-2, BARODA 3 PRINCIPLE THAT JUSTICE IS ABOVE ALL AND THEREFORE, A MISTAKE APPARENT ON RECORD U/S 254(2) OF THE ACT REQUIRES TO BE CORRECT ED BY THE TRIBUNAL. THE APPLICANT ALSO SUBMITTED THAT THE AHMEDABAD B BENCH OF THE TRIBUNAL CAMP AT BARODA VIDE ORDER DATED 12-02-2010 IN ITA NO.2168/AD/2007 FOR AY 2004-05 IN ASSESSEES OWN CA SE HAD AFTER CONSIDERING THE DECISION OF THE TRIBUNAL DATED 11-0 7-2008 FOR AY 1998-99 I.E. THE ORDER ON WHICH THIS MISC. APPLICAT ION IS FILED HAS APPLIED THE DECISION OF THE HONBLE SUPREME COURT I N THE CASE OF ARIHANT MARBLES PVT. LTD. CITED SUPRA AND ALLOWED T HE CLAIM OF DEDUCTION U/S.80IA OF THE ACT BY HOLDING THAT THE A CTIVITY OF MANUFACTURING AND FILLING OF ARGON GAS TO BE IN THE NATURE OF MANUFACTURING ACTIVITY AS ENVISAGED IN THE ACT. 3. BEFORE US THE LEARNED AR REITERATED THE ABOVE SU BMISSIONS OF THE APPLICANT AND PRAYED THAT THE ORDER OF THE TRIB UNAL MAY BE RECTIFIED BY HOLDING THAT THE ACTIVITY OF THE APPLI CANT TO BE THAT OF MANUFACTURING AND THUS ENTITLED TO DEDUCTION U/S 80 IA OF THE ACT. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY OPPOSED T O THE SUBMISSIONS OF THE LEARNED AR AND ARGUED STATING TH AT THE TRIBUNAL HAD TAKEN A CONSCIOUS DECISION BY REFERRING TO VARI OUS CASE LAWS ON THE ISSUE AND HELD THAT SIMPLY BECAUSE GAS UNIT IS REGISTERED UNDER EXCISE LAWS DOES NOT MEAN THAT THE TAX PAYER IS ENG AGED IN MANUFACTURING ACTIVITY. FURTHER, THE TRIBUNAL HAD A NALYZED THE NATURE OF ACTIVITY OF THE ASSESSEE I.E. PROCESSING OF FILL ING LIQUID ARGON GAS IN CYLINDERS AND HELD THE ACTIVITY NOT IN THE FIELD OF MANUFACTURING AND THUS, NOT ENTITLED FOR CLAIMING DEDUCTION U/S 80 IA OF THE ACT. THE LEARNED DR THEREFORE, PRAYED THAT THE ORDER OF THE TRIBUNAL DOES NOT MA NO.75 TO 78/AHD/2010 PRAVAN AIR PRODUCTS PVT. LTD. VS JCIT, SP. RANGE-2, BARODA 4 SUFFER FROM ANY MISTAKE APPARENT ON RECORD FOR INVO KING PROVISIONS OF SECTION 254(2) OF THE ACT AND THEREFORE, THE TRIBUN ALS ORDER MAY BE SUSTAINED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE ORDER OF THE TRIBUNAL, WE ARE OF THE VIEW THAT THE TRIBUNAL HAD CONSCIOUSLY ARRIV ED AT THE DECISION THAT THE ACTIVITY OF PROCESSING AND FILLING ARGON G AS IN CYLINDERS DOES NOT TANTAMOUNT TO BE AN ACTIVITY OF MANUFACTURING A ND THEREFORE, THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 80 IA OF THE ACT. WHILE ARRIVING AT THIS CONCLUSION VARIOUS DECISIONS WERE RELIED UPON BY THE TRIBUNAL ON ALL THE ISSUES ARGUED BY THE APPLICANT IN ITS SUPPORT. THE TRIBUNAL HAD ALSO VENTURED TO LOOK INTO THE ACTIVIT IES OF THE APPLICANT AND REFERRED TO CERTAIN DECISIONS RENDERED BY THE H ONBLE APEX COURT VIZ. DCIT OF AGRICULTURAL INCOME TAX & SALES TAX VS PALAMPADAM PLANTATIONS LTD. AIR 1969 (SC) 930, GRAMOPHONE CO. OF INDIA LTD. VS. COLLECTOR OF CUSTOMS, 1 SCC 549(2000), COLLECTO R OF CENTRAL EXCISE VS RAJASTHAN STATE CHEMICAL WORKS, 4 SCC 473 (1991) WHILE ARRIVING AT THIS CONCLUSION. FURTHER, THE TRIBUNAL IN ITS DECISION HAD DISTINGUISHED THE CASE ARIHANT TILES & MARBLES PVT. VS ITO, 211 CIT 169 (RAJ) WITH THAT OF THE RELEVANT CASE BY CONSIDE RING THE FACTS OF BOTH THE CASES NOT TO BE IDENTICAL. THE SUBSEQUENT DECISION OF THE TRIBUNAL ARRIVING AT A CONTRARY VIEW CANNOT RENDER THE EARLIER DECISION OF THE TRIBUNAL SUFFER FROM MISTAKE APPARENT ON RE CORD PARTICULARLY WHEN THE EARLIER DECISION OF THE TRIBUNAL WAS DELIV ERED AFTER SENSIBLY CONSIDERING THE MATERIALS AVAILABLE BEFORE IT. SINC E, THE TRIBUNAL HAD CONSCIOUSLY CONSIDERED ALL THE ISSUES BEFORE IT AND RELIED UPON VARIOUS DECISIONS OF THE HONBLE APEX COURT AND THE JURISDICTIONAL MA NO.75 TO 78/AHD/2010 PRAVAN AIR PRODUCTS PVT. LTD. VS JCIT, SP. RANGE-2, BARODA 5 HIGH COURT AND FURTHER DISSECTED THE ACTIVITIES INV OLVED IN THE PROCESSING/MANUFACTURING/ FILLING OF ARGON GAS IN C YLINDERS AND WITH THE RELEVANT MATERIALS ON RECORD CAME TO A THOUGHTF UL CONCLUSION THAT THE APPLICANT DOES NOT DESERVE THE BENEFIT U/S. SE CTION 80 IA OF THE ACT SINCE IT WAS NOT CARRYING ON ANY ACTIVITY OF MA NUFACTURING AS ENVISAGED UNDER THE ACT, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MISTAKE APPARENT ON RECORD TO INVOKE THE PROVIS IONS OF SECTION 254(2) OF THE ACT EVEN THOUGH THE DECISION OF THE TRIBUNAL IS SUBSEQUENTLY HELD TO BE INCORRECT. 5. IN THE RESULT, ALL THESE FOUR MISC. APPLICATIONS FI LED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16-06-2012 SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/- MA NO.75 TO 78/AHD/2010 PRAVAN AIR PRODUCTS PVT. LTD. VS JCIT, SP. RANGE-2, BARODA 6 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT DICTATION ON 31-05-12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: