The ITO, Ward-2(2), JAMNAGAR v. Sparsh Bio-tech Pvt ltd, JAMNAGAR

ITA 1142/RJT/2010 | 2007-2008
Pronouncement Date: 30-09-2011 | Result: Allowed

Appeal Details

RSA Number 114224914 RSA 2010
Assessee PAN AAFCS5556F
Bench Rajkot
Appeal Number ITA 1142/RJT/2010
Duration Of Justice 1 year(s) 1 month(s)
Appellant The ITO, Ward-2(2), JAMNAGAR
Respondent Sparsh Bio-tech Pvt ltd, JAMNAGAR
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-09-2011
Date Of Final Hearing 27-09-2011
Next Hearing Date 27-09-2011
Assessment Year 2007-2008
Appeal Filed On 30-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI D.K. TYAGI (JM) AND SHRI A.L. GEHLOT (A M) I.T.A. NO.1142/RJT/2010 (ASSESSMENT YEAR 2007-08) ITO WD.2(2) VS SPARSH BIO TECH P LTD JAMNAGAR PLOT NO.242 TO 244 LAKHABAVAL KHODIYAR COLONY POST OFFICE JAMNAGAR PAN : AAFCS5556F (APPELLANT) (RESPONDENT) C.O. NO 50/RJT/2010 (ARISING OUT OF ITA NO.1142/RJT/2010) (ASSESSMENT YEAR 2007-08) SPARSH BIO TECH P LTD VS ITO WD.2(2) JAMNAGAR JAMNAGAR (CROSS OBJECTOR) (RESPONDENT) DATE OF HEARING : 27-09-2011 DATE OF PRONOUNCEMENT : 30-09-2011 REVENUE BY : SHRI YOGESH PANDE ASSESSEE BY : SHRI SANJAY SHAH O R D E R PER BENCH THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE INDEPENDENT ORDERS OF THE CIT( A) JAMNAGAR DATED 29-06- 2010 FOR THE ASSESSMENT YEAR 2007-08. 2. THE FOLLOWING GROUNDS ARE RAISED IN THE APPEAL: ITA NO.1142/RJT/2010 CO 50/RJT/2010 2 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DETERMINING THE BOOK PROFIT U/S 115JB AT RS.70 79 608/- AS AGAI NST RS.142 71 854/- DETERMINED BY THE ASSESSING OFFICER . 2. THE LD.CIT(A) HAS ERRED IN LAW AND IN FACTS IN N OT PROPERLY APPRECIATING THE FACT THAT THE ASSESSEE WAS NOT ENT ITLED TO CLAIM DEDUCTION U/S 10B OF THE ACT EVEN UNDER THE N ORMAL PROVISIONS OF THE ACT AT THE TIME OF COMPUTING INCO ME U/S 115JB OF THE ACT AS THE ASSESSEE COMPANY DID NEITHE R FILED FORM NO.56G A PREPREQUISITE FOR CLAIMING DEDUCTION U/S 10B WHILE FILING THE RETURN OF INCOME NOR THE ASSE SSEE HAD ANY PROFIT AVAILABLE AFTER SET OFF OF CARRIED FORWA RD LOSS AND UNABSORBED DEPRECIATION OF EARLIER YEAR. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E CLAIMED DEDUCTION U/S 10B OF THE ACT WHILE CALCULATING BOOK PROFIT U/S 11 5JB OF THE ACT. THE ASSESSING OFFICER NOTICED THAT THE CLAIM OF DEDUCTION U/S 10B OF THE ACT WAS NOT CORRECT AS THE SALE MADE TO INDIAN ENTITY AND SALE PROCEEDS RE CEIVED IN INDIAN RUPEES CANNOT BE TERM AS EXPORT. THE ASSESSING OFFICER ACCORDINGLY RECOMPUTED THE BOOK PROFIT U/S 115JB OF THE ACT. THE CIT(A) ACCEP TED THE ASSESSEES CONTENTION AND ALLOWED THE APPEAL OF THE ASSESSEE. 4. THE LD.DR SUBMITTED THAT THE ASSESSEE DID NOT MA KE CLAIM U/S 10B IN ACCORDANCE WITH LAW. THEREFORE THE CIT(A) IS NOT CORRECT IN ALLOWING THE ASSESSEES APPEAL. THE LD.AR ON THE OTHER HAND S UPPORTED THE ORDER OF THE CIT(A). 5. AFTER HEARING THE PARTIES WE NOTICE THAT THE ASS ESSEE HAS CREDITED RS. 16 58 14 826 TO PROFIT & LOSS ACCOUNT OF THE UNDERT AKING TO WHICH PROVISIONS OF SECTION 10B IS APPLICABLE WHILE CALCULATING THE PRO FIT U/S 115JB OF THE ACT. SINCE ITA NO.1142/RJT/2010 CO 50/RJT/2010 3 THE ASSESSEE DID NOT CLAIM DEDUCTION U/S 10B UNDER THE BONA FIDE BELIEF THAT THE TAXABLE OF THE ASSESSEE IS TO BE CALCULATED U/S 115 JB OF THE ACT. HOWEVER WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD HAVE CLAIM ED THE DEDUCTION U/S 10B IN ACCORDANCE WITH LAW AFTER FOLLOWING ALL PROCEDURAL ASPECTS IN THIS REGARD AND THEREAFTER THE EFFECT OF EXEMPTION U/S 10B OF THE A CT HAS TO BE CONSIDERED WHILE COMPUTING THE BOOK PROFIT U/S 115JB OF THE ACT. TH EREFORE WE ARE SENDING THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO ALLOW OPPORTUNITY OF HEARING TO THE ASSESSEE TO MAKE ITS CLAIM U/S 10B IN ACCORDANC E WITH LAW AND THEREAFTER RECALCULATE THE BOOK PROFIT U/S 115JB OF THE ACT. THE ASSESSEE IS AT LIBERTY TO FURNISH ALL REQUIRED DETAILS INCLUDING AUDITORS RE PORT ETC. THE ASSESSING OFFICER WHILE DECIDING THE ISSUE AFRESH SHALL PROVIDE ADEQU ATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. TURNING TO THE CROSS OBJECTION FILED BY THE ASSE SSEE THE FIRST GROUND PERTAINS TO DETERMINATION OF PROFIT U/S 115JB OF TH E ACT. SINCE THE ISSUE PERTAINING TO DETERMINATION OF BOOK PROFIT U/S 115J B HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER IN REVENUES APPEAL THIS ISSUE IS ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION ALREADY ISSUED IN REVENUES APPEAL. 7. AS REGARDS THE SECOND GROUND IN THE CROSS OBJECT ION THE LD.AR FAIRLY CONCEDED THAT THIS GROUND IS COVERED AGAINST THE AS SESSEE AND IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF THE APEX COURT IN THE CA SE OF JT CIT VS ROLTA INDIA ITA NO.1142/RJT/2010 CO 50/RJT/2010 4 LTD 330 ITR 470 (SC).. RESPECTFULLY FOLLOWED THE A PEX COURT JUDGMENT THIS GROUND IN THE CROSS OBJECTION IS REJECTED. 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE WHEREAS THE CROSS OBJECTED FILE D BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30-09-2011. SD/- SD/- (D.K. TYAGI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 30 TH SEPTEMBER 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A) JAMNAGAR 4. THE CIT JAMNAGAR 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT