Smt. Rasilaben Natwarsinh Chauhan, SILVASSA v. The Income tax Officer, Ward-3,, Vapi

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI T K SHARMA JM & SHRI A N PAHUJA ACCOUNTANT MEMBER ITA NO.1157/AHD/2010 (ASSESSMENT YEAR:-2005-06) SMT. RASILABEN N CHAUHAN PROP. MARUTI STONE WORKS SHEETAL BAR & RESTAURANT NAROLI SILVASSA V/S INCOME-TAX OFFICER VAPI WARD-3 VAPI PAN: ABZPC 8545 Q [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI S N L AGARWALA AR REVENUE BY:- SHRI ANIL KUMAR DR O R D E R A N PAHUJA: THIS APPEAL BY THE ASSESSEE AGAINST AN ORDER DAT ED 15-10-2009 OF THE LD. CIT(APPEALS)- VALSAD FOR THE ASSESSMENT YEAR (AY) 2005-06 EARLIER DISPOSED OF VIDE ORDER DATED 2.7.2010 WAS RECALLED IN MA NO. 216/AHD./2010 ON 10.12.2010 AND RAISES THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS ERRED IN NOT ALLOWING DEDUCTION RS.5 02 775/- U/S. 80IB. 2. THE LD. CIT (A) HAS ERRED IN CONFIRMING DISALLOW ANCE OF DEDUCTION OF RS.5 02 775/- U/S. 80IB BY A CRYPTIC ORDER WITHO UT DEALING WITH GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS OF THE AS SESSEE FILED BEFORE HIM. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING DISALLOWA NCE OF DEDUCTION OF RS.5 02 775/- U/S 80IB BY AO ON THE BASIS OF ASSESS MENT ORDERS FOR A.Y. 2001-02 &. A.Y. 2002-03 WHICH THE HON'BLE TRI BUNAL HAS SET ASIDE AND RESTORED TO THE FILE OF AO: THE APPELLANT CRAVES LEAVE TO ADD AMEND ALTER DE LETE OR MODIFY THE ABOVE GROUNDS OF APPEAL. 2. FACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING NIL INCOME AFTER CLAIMING DEDUCTION OF RS.5 02 775 /- U/S 80IB OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERRED TO AS TH E ACT] FILED ON ITA N O.1157/AHD/2010 2 10-10-2005 BY THE ASSESSEE AFTER BEING PROCESSED U/S 143(1) OF THE ACT WAS TAKEN UP FOR SCRUTINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ON 3.1.2006. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER[AO IN SHORT] NOT ICED THAT THE ASSESSEE CLAIMED DEDUCTION OF RS.5 02 775/- U/S 80 IB OF THE ACT ON THE PROFITS OF THE STONE QUARRY IN THE INDUSTRIAL UNDERTAKING NAMELY M/S MARUTI STONE WORKS FUNCTIONING SINCE 1-6-2000 AND STATED TO BE LOCATED IN THE UNION TERRITORIES OF DADRA & N H AN INDUSTRIALLY BACKWARD AREA SPECIFIED IN THE VIIITH SCHEDULE TO THE ACT. HOWEVER THE AO REJECTED THE CLAIM OF THE ASSESSEE ON THE BA SIS OF HIS OWN FINDINGS IN THE ASSESSMENT FOR THE AYS 2001-02 AND 2002-03. 3. ON APPEAL THE LEARNED CIT(A) UPHELD THE ACTION OF THE AO IN THE FOLLOWING TERMS:- FIRST SECOND AND THIRD GROUNDS ARE COMMON AND R AISED AGAINST THE DISALLOWANCE OF DEDUCTION U/S. 80IB. THE A.O HAS GI VEN HIS DETAILED FINDING WITH REGARD TO DISALLOWANCE OF CLAIM OF DEDUCTION U /S 80IB STATING THAT MARUTI STONE WORKS IS FORMED BY SPLITTING UP OF JAY BAJRANG STONE STONE QUARRY IN CONTRAVENTION TO PROVISO SO SECTION 8O-IB (2)(I) AND TRANSFER OF PLANT & MACHINERY PREVIOUS USED BY JAY BAJRANG QUAR RY. ON THE OTHER HAND APPELLANT HAS NOT GIVEN ANY JUSTIFICATION TO ALLOW THE DEDUCTION CLAIMED U/S 8O-IB AT THE TIME OF ASSESSMENT PROCEED ING. BEFORE ME THE ID. AR DID NOT SUBMIT ANY CONCRETE PROOF TO SUBSTANTIAT E ITS CLAIM. THE ID. AR ALSO DID NOT BRING TO MY NOTICE THE FATE OF EARLIER ASSESSMENTS PARTICULARLY FAVOURABLE TO THE APPELLANT. UNDER THE CIRCUMSTANCE S AND CONSIDERING THE FACTS OF THE CASE I SEE NO REASON TO INTERFERE THE ACTION TAKEN BY THE AO. HENCE THESE GROUNDS OF APPEAL ARE DISMISSED. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LD. AR ON BEHAL F OF THE ASSESSEE CONTENDED THAT ISSUE IS REQUIRED TO BE RESTORED TO THE FILE OF THE AO IN TERMS OF DECISIONS OF THE ITAT FOR THE AYS 2001 -02 TO 2004- 05.THE LD. DR DID NOT OPPOSE THESE SUBMISSIONS ON B EHALF OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE AS ALSO DECISIONS OF THE ITAT RELIED UPON BY THE LE ARNED AR ON BEHALF OF THE ITA N O.1157/AHD/2010 3 ASSESSEE. WE FIND THAT THE TRIBUNAL IN THEIR ORDE R DATED 16.3.2009 IN ITA NO.1/AHD./2005 FOR THE AY 2001-02 AND ORDER DATED 17.9.2010 IN ITA NO.960/AHD./2006 FOR THE AY 2002 -03 WHILE FOLLOWI NG THE DECISION DATED 5-10- 2007 OF THE ITAT D BENCH IN ASSESSEES OWN CASE F OR THE ASSESSMENT YEARS 2003-04 AND 2004-05 IN ITA NOS. 3202 AND 3203/AHD/2 007 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINA TION. IN THE SAID DECISION DATED 5-10-2007 THE TRIBUNAL DIRECTED AS UNDER: 6. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE O N RECORD WE FIND THAT THE IN BOTH THE ASSESSMENT YEARS 2003-04 AND 2004-0 5 THE ASSESSEE HAS FILED PAPER BOOK CONTAINING 79 AND 64 PAGES RES PECTIVELY. IN THE CERTIFICATE APPENDED TO THE PAPER BOOK IN BOTH THE YEARS UNDER APPEAL IT IS STATED THAT EXCEPT DOCUMENTS AT SL.NO.5.3 5. 4 AND 5.3 WHICH WERE FILED BEFORE THE LEARNED CIT(A) ONLY OTHER DOCUMENT S WERE FILED BEFORE THE A O AND THE LEARNED CIT(A). AT SL.NO.3 OF THE P APER BOOK IS THE WRITTEN SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) ON 23-2-2007 AND 27-2-2007. AT SL.NO.5.3 ARE COPIES OF VOUCHERS OF BUILDING EXPENSES AND AT SL.5.4 IS THE CERTIFICATE OF ARCHIT ECT SHRI KALPESH M PATEL. THE LEARNED DR HAS NOT POINTED OUT BEFORE TH E BENCH THAT THE OTHER DOCUMENTS CLAIMED BY THE ASSESSEE SHOULD HAVE BEEN FILED BEFORE THE AO WAS NOT IN FACT FILED BEFORE HIM. IN THE ABOVE CIRCUMSTANCES OF THE CASE IN OUR CONSIDERED OPINIO N THE A O SHOULD HAVE PASSED THE ASSESSMENT ORDER TAKING INTO CONSID ERATION THE DOCUMENTS FILED BEFORE HIM. WE FIND THAT THE AO HAS PASSED THE ORDER U/S 144 OF THE ACT WITHOUT CONSIDERING THE DOCUMENT S AND SUBMISSIONS FILED BEFORE HIM. HENCE IN OUR CONSIDERED OPINION IT WILL BE JUST AND FAIR TO RESTORE THE ISSUES IN THE APPEAL BACK TO TH E FILE OF THE A O TO READJUDICATE THE SAME AFTER ALLOWING PROPER OPPORTU NITY OF HEARING TO THE ASSESSEE AND CONSIDERING THE DOCUMENTS AND SUBM ISSIONS OF THE ASSESSEE. WE DO SO. 6. IN THE LIGHT OF THE AFORESAID FINDINGS OF THE IT AT AND UNDISPUTED SUBMISSIONS ON BEHALF OF THE ASSESSEE WE VACATE TH E FINDINGS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH SIMILAR DIRECTIONS AS HAVE BEEN ISSUED IN THE AYS 2003-04 AND 2004-05 TO RE-ADJUDIC ATE THE MATTER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND CONSIDERING THE VARIOUS DOCUMENTS AND SUBMISSIONS. ITA N O.1157/AHD/2010 4 7. IN THE RESULT APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE COURT TODAY ON 28 -02-2011 SD/- SD/- (T K SHARMA) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATED : 28-02-2011 COPY OF THE ORDER FORWARDED TO: 1. RASILABEN N CHAUHAN PROP. OF MARUTI STONE WORKS SHEETAL BAR & RESTAURANT NAROLI SILVASSA 2. ITO VAPI WARD-3 VAPI 3. CIT CONCERNED 4. CIT(A)-VALSAD 5. DR ITAT AHMEDABAD BENCH-D AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD