The ITO, Vapi Ward-4, Daman V. M/s. Auto Tuff Safety Glass, Nani Daman

MA 90/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3097 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI RAJPAL YADAV, J.M. & SHRI ANIL CHATURV EDI, A.M.) M. A. NO. 90/AHD/2014 (IN ITA NO. 891/AHD/2010) (ASSESSMENT YEAR: 2006-07). INCOME-TAX OFFICER, VAPI WARD-4, DAMAN V/S M/S. AUTO TUFF SAFETY GLASS PLOT NO. 57/1 (3-A) & 57/1 (3-B) DUNETHA, BHENSRAL ROAD, NANI DAMAN (APPELLANT) (RESPONDENT) PAN: AAJFA 8986L APPELLANT BY : SHRI B.L. YADAV, SR. D.R. RESPONDENT BY : SHRI M.K. PATEL, A.R. ( )/ ORDER DATE OF HEARING : 19-06-2015 DATE OF PRONOUNCEMENT : 19-06-2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THE M.A. IS FILED BY THE REVENUE AGAINST THE ORDER OF TRIBUNAL DATED 11.02.2013 IN RESPECT OF APPEAL IN ITA NO. 891/AHD/ 2010 FOR A.Y. 2006-07. 2. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HAS I NTERALIA SUBMITTED THAT THE HONBLE TRIBUNAL HAD DISMISSED THE APPEAL OF TH E REVENUE BY FOLLOWING THE EARLIER DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-06. IT IS FURTHER SUBMITTED THAT AS PER SECTION 80IB (4), THE DEDUCTION IS AVAILABLE TO ONLY THOSE ASSESSEES WHOSE UNDERTAKING COMMENCE MA NUFACTURING ACTIVITIES ON OR BEFORE 31 ST MARCH, 2004. IN THE CASE OF ASSESSEE SINCE THE M.A NO. 90/A/14 (I N ITA NO. 891/A/10) . A.Y. 2006-07 2 ASSESSEE DID NOT HAVE THE FACTORY LICENSE AS ON 31. 03.2004 THEREFORE IT COULD NOT HAVE STARTED ITS MANUFACTURING ACTIVITY ON OR B EFORE 31 ST MARCH, 2004. IT IS FURTHER SUBMITTED THAT THE HONBLE TRIBUNAL HAS NOT CONSIDERED THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. JOLLY POLYMERS AND ORS. REPORTED IN (2012) 342 ITR 87 (GU J). IT IS THEREFORE SUBMITTED THAT THE NON- CONSIDERING OF THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. JOLLY POLYMERS (SUPRA) IS A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254 (2) O F THE ACT AND THEREFORE IT IS PRAYED THAT THE ORDER DATED 11.02.2013 BE RECTIF IED/RECALLED. 3. THE LD. A.R. ON THE OTHER HAND SUBMITTED THAT THE A SSESSEE IS LOCATED IN DAMAN AND THEREFORE IN VIEW OF THE PROVISIONS OF SE CTION 260 OF THE I.T. ACT, THE JURISDICTION OF THE ASSESSEE LIES WITH HON BLE HIGH COURT AT BOMBAY. HE FURTHER SUBMITTED THAT THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF CIT VS. JOLLY POLYMERS (ITA (L) NO. 1622/A/ 2012 ORDER DATED 21 ST FEBRUARY, 2013) HAS UPHELD THE ORDER OF TRIBUNAL WH EREBY IT HAS HELD THAT FOR THE PURPOSE OF SECTION 80IB OF THE ACT WHAT IS ESSE NTIAL IS THAT THE ASSESSEE SHOULD MANUFACTURE OR PRODUCE AN ARTICLE OR THING A ND IF THERE IS ANY VIOLATION OF ANY PROVISIONS OF ANY OTHER STATUTE TH AN THE ASSESSEE HAS TO EXPLAIN THE SAME TO THE AUTHORITIES IMPLEMENTING TH OSE ACTS/STATUTE AND THE SAME CANNOT BE THE BASIS OF DENIAL OF BENEFIT U/S. 80IB OF THE ACT. HE THEREFORE SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE BOMBAY HIGH COURT WHICH WAS BE APPLICABLE TO THE ASSESSEE, THER E IS NO APPARENT ERROR IN THE ORDER OF TRIBUNAL AND THEREFORE OPPOSED THE MIS CELLANEOUS APPLICATION OF THE REVENUE. M.A NO. 90/A/14 (I N ITA NO. 891/A/10) . A.Y. 2006-07 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE GRIEVANCE OF THE REVENUE AS STATED IN ITS M.A. IS T HAT IN THE ABSENCE OF FACTORY LICENSE, ASSESSEE COULD NOT HAVE STARTED IT S MANUFACTURING ACTIVITY ON OR BEFORE 31 ST MARCH, 2004 AND THEREFORE WAS NOT ELIGIBLE FOR DED UCTION U/S. 80IB. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE IS LOCATED AT DAMAN AND THE JURISDICTION HIGH COURT OF ASSESSEE LIES WITH HONB LE HIGH COURT AT BOMBAY IN VIEW OF THE PROVISIONS OF SECTION 269 OF THE ACT. WE FIND THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . JOLLY POLYMERS (SUPRA) HAS HELD THAT VIOLATION OF PROVISIONS OF OT HER STATUTE CANNOT BE THE BASIS OF DENIAL OF BENEFIT U/S. 80IB OF THE ACT. IN VIEW OF THE AFORESAID, ON THE MERITS WE FIND NO ERROR IN THE ORDER OF HONBLE TRIBUNAL. FURTHER, IT IS A SETTLED LAW THAT THE POWER OF RECTIFICATION UNDER S ECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTA KE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTA BLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHIC H THERE MAY CONCEIVABLY BE TWO OPINIONS. FURTHER, THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUM STANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT . THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. IN THE P RESENT CASE, NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT SINCE THE REVENUE HAS FAILED TO PO INT OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER, WE ARE NOT INCLI NED TO RECALL THE ORDER OF THE CO-ORDINATE BENCH IN ITA. NO. 891/A/2010 ORDER DATED 11.02.2013 AND THUS THE MISCELLANEOUS APPLICATION BEARING NO. 90/A /2014 IS HEREBY DISMISSED. M.A NO. 90/A/14 (I N ITA NO. 891/A/10) . A.Y. 2006-07 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON 19 - 06 - 2015. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD