M/s. Banco Aluminium Ltd., Vadodara V. The Dy.CIT., Circle-1(1)(1), Vadodara

MA 83/AHD/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0638 (ITAT-AHMEDABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 12-03-2018
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED , ACCOUNTANT MEMBER AND MS MADHUMITA ROY, JUDICIAL MEMBER M.A NO S.82 - 83/AHD/2018 IN ./ ITA NO S . 2820 - 2821 / AHD/ 2015 / ASSTT. YEAR S : 2011 - 2012 & 2012 - 2013 1. M/S BANCO PRODUCTS PVT.(INDIA) LTD. BILL, NEAR BHAILI RAILWAY, STATION, PADRA ROAD, BARODA - 391410 PAN NO.AAACB8630L 2. M/S.BANCO ALUMINIUM LTD. B IL NEAR BHAILI RAILWAY STATION, PADRA ROAD, VADODARA - 391410 PAN NO.AAACB8629B VS THE D CIT, CIRCLE - 1(1), VADODARA . (APPLICANT) (RESPONENT) ASSESSEE BY : SHRI BHAVIN MARTATIA, A.R REVENUE BY : SHRI VINOD TALWANI , SR.DR / DATE OF HEARING : 16 / 11 /201 8 / DATE OF PRONOUNCEMENT: 03 / 12 /201 8 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : T HE INSTANT MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ARISING OUT OF THE COMMON ORDER DATED 13/12/2017 , PASSED BY THE CO - ORDINATE BENCH, IN ITA BEARING NO S.2820 & 2821 /AHD/2015 FOR THE ASSESSMENT YEAR S 2011 - 12 & 2012 - 13 . M.A NO S.82 - 83/AHD/2018 IN ITA NO S.2820 - 2821 /AHD/2015 A.Y S.2011 - 12 & 2012 - 13 . 2 2. THE ASSESSEE BY WAY OF THIS MISCELLANEOUS APPLICATIONS IS SEEKING TO MODIFY THE FINDING S IN THE ORDER OF HON BLE ITAT I N ITA NOS.2820/AHD/2015 & 2821/AHD/2015 FOR A.YS 2011 - 12 & 2012 - 13 ON THE GROUND THAT THERE IS A MISTAKE APPARENT FROM THE RECORD S . 3. THERE IS A COMMON ISSUE IN BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AND THE CONSOLIDATED ORDER WAS ALSO PASSED BY THIS TRIBUNAL IN THE QUANTUM APPEALS . T HEREFORE , WE ARE INCLINED TO PASS CONSOLIDATED ORDER F OR THE SAKE OF CONVENIENCE AND BREVITY . 4 . FIRST WE TAKE M.A BEARING NO.82/AHD/2018 ARISING OUT OF ITA NO.2820/AHD/2015 FOR ASSESSMENT YEAR 2011 - 12. THE ASSESSEE IN THE SAID M.A HAS SUBMITTED AS UNDER: THE APPLICATION OF THE APPLICANT HEREIN (APPELLANT IN THE ORIGINAL APPEAL) MOST RESPECTFULLY SHEWETH AS UNDER: 1. THE APPLICANT HEREIN WAS APPELLANT IN ITA NO. 2820/AHD/2015. THE ABOVE REFERRED MATTER CAME BEFORE THE 'B BENCH'' COMPRISING OF HON'BLE SHRI N.K. BILLAIYA, AM AND HON'BLE SHRI S.S. GODARA, JM. THE APPLICANT VIDE GROUND NO. 3 OF THE APPEAL IN FORM 36 FILED AS UNDER : - '3. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN NOT ALLOWING DEDUCTION U/S. 8 0IA(4) OF THE ACT AMOUNTING TO RS.1,55,467/ - ' THE APPLICANT DURING THE COURSE OF HEARING BEFORE THE HON'BLE BENCH SUBMITTED THAT THE GROUND HAS ALREADY BEEN DECIDED IN THE FAVOR OF THE APPLICANT IN ITS OWN CASE FOR AY 2008 - 09 (ITA NO. 75/A/2012) VIDE PARA NO. 6 & 6.1. THE APPLICANT ALSO FILED A COPY OF THE JUDGMENT IN ITS CASE. 4. THE HON'BLE BENCH WHILE ADJU DICATING THE MATTER STATED AS UNDER IN PARA 7 & 8 ON PAGE 3 OF THE IT AT ORDER : - '7. ISSUES RAISED IN VIDE GROUND NO. 3 WAS CONSIDERED BY THE TRIBUNAL AT PARA 7 OF ITS ORDER AND THE RELEVANT FINDING READ AS UNDER : - 9. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE HAVE NOTICED THAT THE ID. CIT(A) REPORTED IN HIS DECISION THAT THE CASE OF CLARIS LIFE SCIENCES LTD. WAS DISTINGUISHABLE FROM THE CASE OF THE ASSESSEE AS THE FACTS ARE DIFFERENT IN AS MUCH AS IN THE CASE OF THE ASSESSEE T HE APPROVAL WAS RECEIVED IN F.Y. 2008 - 09 I.E. AFTER F.Y. 2007 - M.A NO S.82 - 83/AHD/2018 IN ITA NO S.2820 - 2821 /AHD/2015 A.Y S.2011 - 12 & 2012 - 13 . 3 08 WAS ALREADY OVER. HE HAS ALSO REPORTED THAT EVEN THE APPLICATION SEEKING THE APPROVAL WAS MADE BY THE ASSESSEE IN THE F. Y. 2008 - 09. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE A SSESSEE HAS FURNISHED PAPER BOOKS. WE HAVE PERUSED THE PAPER BOOK FURNISHED BY THE ASSESSEE AND FIND THAT AS PER PAGE NO. 146 OF THIS PAPER BOOK THE ASSESSEE CLAIM THAT APPLICATION FOR APPROVAL OFIN - HOUSE RESEARCH AND DEVELOPMENT WAS MADE ON 22 - 12 - 2006. IN ORDER TO VERIFY THE SAME WE HAVE GONE THROUGH THE PAGES OF PAPER BOOK AND FIND THAT AS PER PARA 43 OF PAGE NO. 235 IT WAS STATED THAT APPLICATION TO THE PRESCRIBED AUTHORITY WAS MADE ON 26 - 06 - 2008. WE HAVE FURTHER VERIFIED FROM PAGE NO. 162 IN THE PAPER B OOK THAT A LETTER DATED 24 - 10 - 2008 WAS ADDRESSED TO THE ASSESSEE FROM THE MINISTRY OF SCIENCE AND TECHNOLOGY DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH TRAINING PROVIDING REFERENCE OF THE APPLICATION OF THE ASSESSEE DATED 26.06.2008. THE CLAIM OF THE ASSESSEE THAT IT HAD APPLIED ON DEC 22, 2006 COULD NOT BE SUBSTANTIATED IN VIEW OF SUPPORTING MATERIAL INDICATING THAT ASSESSEE HAD APPLIED ON 26/06/2008. WE OBSERVED THAT ABOVE FINDINGS THROW LI GHTS ON THE CONTENTIONS THAT THE FACTS OF THE CASE OF THE AS SESSEE ARE DISTINGUISHED FROM THE DECISION OF THE: CASE OF CLARIS LIFE SCIENCES LTD. IN VIEW OF CONTRADICTORY FACTS AND SUPPORTING EVIDENTIAL MATERIAL FOUND TO BE EXISTING AS ELABORATED SUPRA, WE CONSIDERED IT WILL BE MORE APPROPRIATE TO RESTORE THE ISSUE OF APPLICABILITY OF THE DECISION IN THE CASE OF THE CLARIS LIFE SCIENCES LTD TO THE FILE OF THE ASSESSING OFFICER TO DECIDE A FRESH AFTER REQUISITE VERIFICATION AND EXAMINATION OF MATERIALS AS STATED SUPRA AFTER PROVIDING DUE OPPORTUNITIES TO THE ASSESSEE. 8. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO - ORDINATE BENCH (SUPRA), WE DIRECT ACCORDINGLY. GROUND NO. 3 IS ALLOWED FOR STATISTICAL PURPOSE.' 5. IT IS RESPECTFULLY SUBMITTED THAT THE GROUND RAISED BY THE APPLICANT PERTAINED TO DEDUCTION U/S. 80I A. HOWEVER, WHILE ADJUDICATING THE SAID GROUND THE HON'BLE ITAT GAVE A FINDING WITH RESPECT TO DEDUCTION U/S. 35(2AB) OF THE ACT. WE SUBMIT THAT IN THE CURRENT YEAR THERE WAS NO GROUND CLAIMING DEDUCTION U/S. 35(2AB) OF THE ACT. THE ISSUE OF CLAIMING DEDUC TION U/S. 80IA IS COVERED BY PARA 6 AND 6.1 OF THE ITAT'S ORDER FOR AY 2008 - 09. 6. THE APPLICANT IN THE PRESENT APPLICATION REQUESTS THE HON'BLE BENCH TO RECALL THE MATTER AND DECIDE THE GROUND OF APPEAL RELATING TO DEDUCTION U/S. 80IA. 7. THE FEES R EQUIRED TO BE PAID HAS BEEN PAID AND CHALLAN EVIDENCING THE PAYMENT OF RS. 50/ - FOR THE FEES IS ENCLOSED HEREWITH FOR YOUR RECORD. IN VIEW OF THE ABOVE SUBMISSIONS YOUR APPLICANT MO ST RESPECTFULLY PRAYS AS UNDER: - 1. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 13 - 12 - 2017 MAY PLEASE BE RECALLED AND THE MATTER BE DECIDED AFRESH AFTER GIVING AN OPPORTUNITY OFBEING HEARD IN THE MATTER. 2. SUCH OTHER ORDER AS THE HON'BLE TRIBUNAL MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPLICATION M.A NO S.82 - 83/AHD/2018 IN ITA NO S.2820 - 2821 /AHD/2015 A.Y S.2011 - 12 & 2012 - 13 . 4 5 . THE LD.AR, FOR THE ASSESSEE BEFORE US PLEAD ED TO MODIFY THE FINDINGS OF THE HON BLE ITAT AS THERE IS A MISTAKE APPARENT FROM THE RECORDS IN THE ORDER OF THE ITAT . 6 . ON THE CONTRARY THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF ITAT. 7 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORDS. THERE IS NO AMBIGUITY IN THE FACTS OF THE CASE THAT THE ISSUE IS COVERED BY THIS TRIBUNAL IN THE OWN CASE OF THE ASSESSEE IN ITA NO.75/AHD/2012, PERTAINING TO THE ASSESSMENT YEAR 2008 - 09. 8 . HOWEVER, THE ITAT IN THE CASE ON HAND HAS ALSO PLACED ITS RELIANCE IN THE ORDER OF ITAT IN THE OWN CASE OF THE ASSESSEE IN ITA NO.75/AHD/2012 PERTAINING TO THE ASSE SSMENT YEAR 2008 - 09. HOWEVER, THE ITAT WHILE REPRODUCING THE RELEVANT FINDING OF THE CASE IN ITA NO.75/AHD/2012 HAS RECORDED/ COPIED THE WRONG PARA OF THE ITAT ORDER IN I T S ORDER INADVERTENTLY AS MENTIONED BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION A S DISCUSSED ABOVE. 9 . IN VIEW OF THE ABOVE, WE ARE INCLINED TO MODIFY THE FINDINGS OF ITAT AND ACCORDINGLY HELD THAT PARA 7 AND 8 OF ITAT ORDER IN ITAT NOS.2820 - 2821/AHD/2015, SHALL BE REPLACED WITH THE FOLLOWINGS: 6. THE LD. COUNSEL OF THE ASSESSEE HAS CONTENDED THAT THIS ISSUE IN QUESTION WAS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE ITAT, AHMEDABAD IN THE CASE OF ALEMBIC LTD AND THE HON BLE HIGH COURT OF GUJARAT ISSUE IN THE CASE OF ALEMBIC LTD IN TAX APPEAL NO. 471 OF 2009. IN THIS CONNECTION, WE HAVE NOTICED THAT CO - ORDINATED BENCH OF ITAT AHMEDABAD VIDE ITA NO. 1912/AHD/2012 DATED 09 - 12 - 2016 IN THE CASE OF ALEMBIC LTD ON THE SIMILAR ISSUE HAS DECIDED AS UNDER: - 17.1 LD. COUNSEL FOR THE ASSESSEE CON TENDS THAT THE ISSUE IN QUESTION STANDS COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE BY THE JUDGMENT OF HON BLE GUJARAT HIGH COURT VIDE A CONSOLIDATED ORDER DATED 20.07.2016 IN TAX APPEAL NO. 471 TO 474 OF 2009, IN TAX APPEAL NO. M.A NO S.82 - 83/AHD/2018 IN ITA NO S.2820 - 2821 /AHD/2015 A.Y S.2011 - 12 & 2012 - 13 . 5 471 AND 473, THE CO MMON QUESTION OF LAW REFERRED TO BY THE REVENUE IS AS UNDER: - WHETHER THE APPELLATE TRIBUNAL WAS RIGHT IN LAW AND ON FACTS IN NOT APPRECIATING THAT DEDUCTION U/S 80IA(4) IS NOT ALLOWABLE TO THE ASSESSEE FOR GENERATING POWER FOR CAPTIVE CONSUMPTION? 17.2 THE ITAT ALLOWED THE ASSESSEE S CLAIM U/S 80IA(4) AT THE RATE OF SELLING PRICE CHARGED BY GUJARAT STATE ELECTRICITY BOARD AND OTHER DISTRIBUTING COMPANIES FROM ITS CAPTIVE POWER PLANT. AGAINST THE ORDER OF THE TRIBUNAL, THE REVENUE PREFERRED THE APP EAL BEFORE THE HON BLE GUJARAT HIGH COURT AND THE ABOVE QUESTION OF LAW WAS FRAMED. THE HON BLE GUJARAT HIGH COURT WHILE HOLDING IN FAVOUR OF ASSESSEE, RELIED ON A HOST OF JUDGMENTS INCLUDING ACIT, BHARUCH CIRCLE, BHARUCH VS. PRAGATI GLASS WORKS PVT LTD D ECIDED ON 25.09.2012 AND CIT VS. SHAH ALLOYS LTD, DECIDED ON 22.11.2011 IN TAX APPEAL NO.2092 OF 2010. THE HON BLE GUJARAT HIGH COURT FURTHER RELIED ON THE JUDGMENT OF CALCUTTA HIGH COURT IN THE CASE OF CIT VS. KANORIA CHEMICALS & INDUSTREIS LTD, [2013] 3 5 TAXMANN.COM 566 (CALCUTTA), WHEREIN THE COURT HAS HELD AS UNDER: - IT IS PRICE AT WHICH ASSESSEE TRANSFERRED ELECTRICITY GENERATED BY IT ELIGIBLE BUSINESS TO ITS OTHER BUSINESS WHICH WOULD BE CONSIDERED FOR PURPOSE OF COMPUTATION OF PROFITS AND GAINS O F ELIGIBLE BUSINESS IN TERMS OF SECTION 80 - IA(8) AND NOT LESSER PRICE AT WHICH SURPLUS ELECTRICITY WAS SOLD TO ELECTRICITY BOARD. 17.3 RELYING ON ALL THESE JUDGMENTS, BY DETAILED OBSERVATIONS, THE HON BLE GUJARAT HIGH COURT UPHELD THE CLAIM OF THE ASSESS EE AND DISMISSED THE REVENUE S GROUND IN THIS BEHALF BY FOLLOWING OBSERVATIONS: - 11. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE PARTIES. WE HAVE ALSO CONSIDERED THE CASE LAWS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. TAKI NG INTO CONSIDERATION THE JUDEMENTS OF THIS COURT AND OTHER HIGH COURTS, CITED ABOVE, WE ARE OF THE OPINION THAT THE TRIBUNAL HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. IN THAT VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE TRIBUN AL. THEREFORE, WE ANSWER QUESTION (C) AND (D) IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 17.4 THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 18. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUS ED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN VIEW OF THE HON BLE GUJARAT HIGH COURT JUDGMENT ON THE SAME ISSUE IN ASSESSEE S OWN CASE, THE ISSUE IN QUESTION THAT THE ASSESSEE IS ELIGIBLE FOR COMPUTATION OF D EDUCTION U/S 80IA(4) ON THE RATES CHARGED BY IT AT SELLING PRICE IS NO MORE RES INTEGRA. RESPECTFULLY FOLLOWING THE HON BLE GUJARAT HIGH COURT JUDGMENT IN ASSESSEE S OWN CASE (SUPRA), THIS GROUND OF THE ASSESSEE IS ALLOWED. M.A NO S.82 - 83/AHD/2018 IN ITA NO S.2820 - 2821 /AHD/2015 A.Y S.2011 - 12 & 2012 - 13 . 6 6.1 WE HAVE ALREADY DECIDED T HE SIMILAR MATTER IN FAVOUR OF ASSESSEE IN THE A.Y.2008 - 09 IN THE CASE OF BANCO ALUMINIUM LTD.. IN VIEW OF THE ABOVE STATED FACTS AND LEGAL FINDINGS, RESPECTFULLY FOLLOWING THE HON BLE GUJARAT HIGH COURT IN THE CASE OF ALEMBIC LTD. AS SUPRA WE ALLOW THIS G ROUND OF THE ASSESSEE . 10 . IN VIEW OF ABOVE WE HOLD THAT THERE IS APPARENT MISTAKE IN THE ORDER OF LD. ITAT WHICH IS MODIFIED IN TERMS OF ABOVE. THUS THE M.A FILED BY THE ASSESSE IS ALLOWED. 11 . NOW COMING TO THE M.A NO.83/AHD/2018 PERTAINING TO THE I TA NO.2821/AHD/2015 FOR THE ASSESSMENT YEAR 2012 - 13. 12 . AT THE OUTSET, WE NOTE THAT WE HAVE ALREADY DECIDED THE IDENTICAL ISSUE IN M.A. NO.82/AHD/2018 AS DISCUSSED ABOVE BY AL LOWING THE GRIEVANCE OF THE ASSESSEE . 13 . THE ITAT IN ITA NO.2821/AHD/2015 HAS RELIED ON THE ORDER IN ITA NO.2820/AHD/2015 WHICH HAS ALREADY BEEN MODIF IED AS DISCUSSED ABOVE . HENCE THE GROUND RAISED IN THE M.A IS ALLOWED. 14 . IN THE RESULT, THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE C OURT ON 03 / 12 / 201 8 AT AHMEDABAD. - SD - ( MS. MADHUMITA ROY ) JUDICIAL MEMBER - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER TRUE COPY AHMEDABAD; DATED 03 / 12 / 201 8 MANISH