The ACIT,B.K.Circle,, Palanpur v. The Banaskantha Dist. Co.Op. Milk Producer's Union Ltd.,, Palanpur

ITA 1362/AHD/2009 | 2006-2007
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 136220514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 1362/AHD/2009
Duration Of Justice 8 month(s) 24 day(s)
Appellant The ACIT,B.K.Circle,, Palanpur
Respondent The Banaskantha Dist. Co.Op. Milk Producer's Union Ltd.,, Palanpur
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 22-01-2010
Date Of Final Hearing 13-01-2010
Next Hearing Date 13-01-2010
Assessment Year 2006-2007
Appeal Filed On 28-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' (BEFORE S/SHRI T K SHARMA AND N S SAINI) ITA NO.1362/AHD/2009 (ASSESSMENT YEAR:- 2006-07) THE ASSISTANT COMMISSIONER OF INCOME-TAX B K CIRCLE PALANPUR V/S THE BANASKANTHA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD. PALANPUR [APPELLANT] [RESPONDENT] APPELLANT BY :- SHRI RAJEEV AGARWAL CIT DR RESPONDENT BY:- SHRI SUNIL H TALATI CA O R D E R PER N S SAINI (ACCOUNTANT MEMBER) : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS) DATED 25 TH FEBRUARY 2009 FOR ASSESSMENT YEAR 2006-07. 2 GROUND NO.1 IN THE APPEAL READS AS UNDER:- 1 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION U/S 80P(2)(D) OF THE ACT ON INTEREST OF RS.39 85 291/- AND DIVIDEND OF RS.62 99 641/-. 3 AT THE OUTSET THE LEARNED AUTHORISED REPRESENTA TIVE OF THE ASSESSEE HAS FAIRLY STATED THAT THE ISSUE IS SQ UARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.3730/AHD/2002 WITH CO NO.261/AHD/2003 ORDER DAT ED 28-09- 2007 FOR ASSESSMENT YEAR 1990-91 HAS ALLOWED THE CL AIM OF THE ASSESSEE. FOLLOWING THE SAME THE GROUND OF APPEAL OF THE REVENUE SHOULD BE DISMISSED. 2 4 THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT MADE ANY OBJECTION TO THE ABOVE SUBMISSIONS OF THE LEARN ED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 5 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HA S DELETED THE DISALLOWANCE OF DEDUCTION OF RS.39 85 291/- ON ACCO UNT OF INTEREST AND RS.62 99 641/- ON ACCOUNT OF DIVIDEND U/S 80P(2 )(B) BY OBSERVING AS UNDER:- AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEEN T HAT THE AO HAD REPRODUCED REPLY GIVEN DURING ASSESSMENT PROCEEDING S DATED 8-12-2008 BY THE ASSESSEE ON PAGE 3 OF THE ASSESSMENT ORDER WHER EIN THE ASSESSEE HAD STATED THAT INTEREST AND DIVIDEND WAS EARNED OUT OF INVESTMENT OF AMOUNT RECEIVED FOR SALE OF MILK MILK PRODUCTS FROM GCMMF LTD. THE CRUX OF THE ARGUMENT WAS THAT INTEREST AND DIVIDEND RECEIVED SH OWN BY THE ASSESSEE WAS OUT OF INVESTMENTS MADE OUT OF OWN FUNDS AND NO T OUT OF BORROWED FUNDS ON WHICH THE APPELLANT HAD GIVEN INTEREST. IT WAS EXPLAINED IN THE REPLY TO THE AO THAT FUNDS WERE BORROWED IN CONNECT ION WITH VARIOUS PROJECTS UNDERTAKEN PLANT AND MACHINERY INSTALLED ETC. IN THE APPELLATE ORDER OF ASSESSMENT YEAR 2005-06 HON'BLE ITAT AHME DABAD B AND C BENCHES DECISION IN THE CASE OF THE APPELLANT I N ASSESSMENT YEAR 1990-091 TO 93-94 HAVE BEEN RELIED UPON FOR FOLLOWI NG DEDUCTION U/S 80P(2)(D) THE SAME DECISIONS APPLY IN THIS YEAR AL SO AS THE AO HAS NOT BEEN ABLE TO PROVE IN ASSESSMENT YEAR 2006-07 ALSO THAT INVESTMENTS MADE BY THE APPELLANT WERE OUT OF BORROWED FUNDS. THE AO IS THEREFORE DIRECTED TO ALLOW DEDUCTION U/S 80P(2)(D) OF RS.39 85 291/- AND RS.62 99 641/-. WE FIND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS DELETED THE ABOVE ADDITIONS BY FOLLOWING THE ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE ITSELF IN THE EA RLIER YEARS. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY GOOD REASON AS TO WHY THE EARLIER YEARS ORDER OF THE TR IBUNAL SHOULD NOT BE FOLLOWED IN THE YEAR UNDER APPEAL AND HOW THE OR DER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WAS NO T JUSTIFIED IN FOLLOWING THE SAID ORDER. WE THEREFORE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE AND THE SAME IS DIS MISSED. 3 6 GROUND NO.2 IN THE REVENUES APPEAL READS AS UND ER: 2 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION OF RS.50 000/- U/S 80P(2)(C) OF THE ACT TO THE ASSESSEE. 7 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS OBSERVED THAT THE LEARNED ASSESSING OFFICER DISALLO WED THE DEDUCTION U/S 80P(2)(C) TO THE ASSESSEE ON THE GROU ND THAT THE ASSESSEE FALLS IN SECTION 80P(2)(B). IN THE APPELLA TE PROCEEDINGS IT WAS ARGUED THAT ON SIMILAR POINTS DEDUCTION HAS BEE N ALLOWED TO THE ASSESSEE IN THE APPELLATE ORDER PASSED BY THE LEARN ED COMMISSIONER OF INCOME-TAX (APPEALS) FOR ASSESSMENT YEAR 2005-06 . PERUSAL OF THE APPELLATE ORDER SHOWS THAT DEDUCTION U/S 80P(2) (C) HAS BEEN ALLOWED BECAUSE THE ASSESSEE WAS NOT FOUND TO BE A PRIMARY CO- OPERATIVE SOCIETY AS DESCRIBED IN SECTION 80P(2)(B) BECAUSE A PRIMARY CO-OPERATIVE SOCIETY AS PER SECTION 80P(2)( B) IS A SOCIETY WHICH IS ENGAGED IN SUPPLYING MILK OIL SEEDS FRU ITS OR VEGETABLES RAISED OR GROWN BY ITS MEMBERS TO A FEDERAL CO-OPER ATIVE SOCIETY. AS THE FACTS OF THE CASE ARE SAME AS IN ASSESSMENT YEA R 2005-06 THE ASSESSEE FALLS U/S 80P(2)(C) THEREFORE THE LEARNED ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S 80P(2)(C) OF RS. 50 000/- TO THE APPELLANT. 8 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. THE LEARNED ASSESSING OFFICER DISALLOWED DEDUCTION OF RS.50 000/- CLAIMED BY THE ASSESSEE U/S 80P(2)(C)(II) BY OBSERV ING AS UNDER: 3.3.3 THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.50 000/- U/S 80P(2)(C) OF THE ACT. DEDUCTION UNDER THIS SECT ION IS ALLOWABLE ONLY TO THE CO-OPERATIVE SOCIETIES OTHER THAN THOSE SPECIFIED IN SECTION U/S 80P(2)(A) AND U/S 80P(2)(B ) OF THE ACT. THE ASSESSEE FALL IN SECTION U/S 80P(2)(B) OF THE A CT. HENCE DEDUCTION OF RS.50 000/- CLAIMED U/S 80P(2)(C) OF T HE ACT IS BEING DISALLOWED. 4 WE FIND THAT SECTION 80P(2)(C) READS AS FOLLOWS: (C) IN THE CASE OF A CO-OPERATIVE SOCIETY ENGAGED IN ACTIVITIES OTHER THAN THOSE SPECIFIED IN CLAUSE (A) OR CLAUSE (B) (EITHER INDEPENDENTLY OF OR IN ADDITION TO ALL OR ANY OF THE ACTIVITIES SO SPECIFIED) SO MUCH OF ITS PROFITS AN D GAINS ATTRIBUTABLE TO SUCH ACTIVITIES AS (DOES NOT EXCEED - (I) WHERE SUCH CO-OPERATIVE SOCIETY IS A CONSUMERS CO- OPERATIVE SOCIETY [ONE HUNDRED] THOUSAND RUPEES; A ND (II) IN ANY OTHER CASE [FIFTY] THOUSAND RUPEES. EXPLANATION IN THIS CLAUSE CONSUMERS CO-OPERAT IVE SOCIETY MEANS A SOCIETY FOR THE BENEFIT OF THE CON SUMERS;] THUS READING OF THE ABOVE PROVISIONS SHOWS THAT SO MUCH OF THE PROFITS AS DOES NOT EXCEED RS.50 000/- AND WHICH AR E ATTRIBUTABLE TO THE ACTIVITIES OTHER THAN THOSE SPECIFIED UNDER CLA USE (A) AND CLAUSE (B) IS ALLOWABLE TO A CO-OPERATIVE SOCIETY. THUS T HE LEARNED ASSESSING OFFICER ERRED IN CONCLUDING THAT ONLY BEC AUSE A CO- OPERATIVE SOCIETY IS ALSO ENGAGED IN THE ACTIVITIES SPECIFIED IN CLAUSE (B) OF SECTION 80P(2) THE SAID SOCIETY IS NOT ENTI TLED FOR DEDUCTION U/S 80P(2)(C) OF THE ACT. FOR ALLOWING DEDUCTION U/ S 80P(2)(C) THE BASIC THING WHICH IS TO BE ASCERTAINED IS THAT WHET HER THE ASSESSEE CO-OPERATIVE SOCIETY HAS INCOME ATTRIBUTABLE FROM A CTIVITIES OTHER THAN THOSE SPECIFIED IN CLAUSE (A) OR CLAUSE (B) OR NOT. MOREOVER WE FIND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) HAS ALSO FOUND THAT THE ASSESSEES ACTIVITIES ARE ALSO NOT COVERED BY CLAUSE (B) OF SECTION 80P(2) OF THE ACT. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY ERROR IN THE ABOVE FINDING OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS). IN THESE CIRCUMSTANCES WE DO NOT FIND A NY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME-TAX (APPEALS). THUS THIS GROUND OF APPEAL OF THE REVEN UE IS DISMISSED. 10 GROUND NO.3 READS AS UNDER: 5 3 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION OF RS.82 84 339/- U/S 80IB OF THE ACT ON BANAS-II PLAN T TO THE ASSESSEE. 11 THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO E XPLAIN THE FOLLOWING: (I) FURNISH SUPPORTING EVIDENCES OF CLAIM OF DEDUCTION U/S 80IB INCLUDING NOTIFICATION EVIDENCE AND INCREASE OF PRODUCTION CAPACITY AS CLAIMED EVIDENCE OF PRODUCT ION AND SUPPORTING EVIDENCE OF CALCULATION OF CLAIM U/S 80IB. (II) EXPLAIN AS TO WHY DEDUCTION JU/S 80IB SHOULD NOT BE DISALLOWED ON THE REASONING AS MENTIONED IN THE ASSESSMENT ORDER IN YOUR CASE FOR ASSESSMENT YEAR 2 004- 05 AND 2005-06. (III) EXPLAIN AS TO WHY DEDUCTION U/S 80IB(5) CLAIMED SHO ULD NOT BE DISALLOWED SINCE DEDUCTION IS ALLOWABLE ONL Y TO NEW UNIT IF THE CONDITIONS ARE FULFILLED. THERE IS NO DETAILS FOR ENHANCEMENT OF CAPACITY. IN RESPONSE TO THE ABOVE THE ASSESSEE FURNISHED ITS REPLY VIDE LETTER AS UNDER: DURING THE YEAR UNDER CONSIDERATION WE WERE ELIGI BLE TO GET THE DEDUCTION U/S 80IB IN RESPECT OF OUR BANAS-II D AIRY EXPANSION PLANT. WE ARE ENCLOSING HEREWITH STATEMEN T SHOWING INCREASE IN PRODUCTION CAPACITY IN BANAS-II DAIRY EXPANSION PLANT. WE ARE ENCLOSING HEREWITH COPY OF TURNKEY AGREEMENT MADE WITH NDDB AT ANNEXURE 54 FROM WHICH YOUR GOODSELF WOULD APPRECIATE THAT THE SAME IS FOR EXPA NSION OF BANAS-II DAIRY. WE HAD TAKEN SEPARATE POWER CONNECT ION FOR BANAS-II DAIRY. WE ARE ENCLOSING HEREWITH CERTIFICA TE ISSUED BY GEB FOR SEPARATE POWER CONNECTION. (ANN. 5). SUC H EXPANSION IN CAPACITY WAS ALREADY COMMISSIONED IN E ARLIER ASSESSMENT YEAR 2002-03 WHERE ALL THESE ASPECTS HAV E BEEN GONE INTO AT THE ASSESSMENT LEVEL. FURTHER THIS IS A CONTINUOUS RELIEF AND WHEN THE SAME HAS BEEN ACCEPTED IN THE E ARLIER ASSESSMENT YEARS THERE IS NO QUESTION OF REAPPRAIS ING THE EVIDENCES PRODUCED AND ACCEPTED IN THE EARLIER YEAR S. THIS BEING THE 5 TH YEAR OF CLAIM WE ARE CLAIMING DEDUCTION J@ 25% AS MENTIONED IN OUR LETTER DATED 25-11-2008. 6 E. THE CLAIM OF DEDUCTION U/S 80IB WAS NOT ALLOWED BY THE THEN AO IN AY 2004-05 AND 2005-06 ON DIFFERENT GROU ND. FURTHER IN AY 2004-05 HON'BLE COMMISSIONER OF INCO ME TAX(APPEALS) HAS ALLOWED THE APPEAL FILED BY US IN RESPECT OF BANAS-II PLANT AND ON SECOND APPEAL FILED BY DEPART MENT HON'BLE MEMBERS OF APPELLATE TRIBUNAL HAS DISMISSED THE APPEAL FILED BY THE DEPARTMENT. THE XEROX COPY OF I TAT ORDER IS ENCLOSED HEREWITH AT ANNEXURE 6. THEREFORE KIND LY NOTE THAT THE REASONING FOR DISALLOWANCE OF CLAIM AS GIVEN BY YOUR PREDECESSOR FOR AYS 2004-05 AND 2005-06 DO NOT SURV IVE AND THE SAME CANNOT BE CONSIDERED FOR DISALLOWANCE OF O UR CLAIM U/S 80IB FOR BANAS-II PLANT. F. AS FAR AS THE SECTION 80IB(5) REQUIREMENT IS CON CERNED WE ARE ENCLOSING HEREWITH THE COPY OF NOTIFICATION NO.SO 440(E) ISSUED BY CBDT DATED 15-06-99 WHICH SPECIFIE S THAT BANASKANTHA FALLS IN CATEGORY B DISTRICT AND HENC E OUR BANAS-II PLANT QUALIFIES FOR DEDUCTION U/S 80IB(5) OF THE ACT. (ANNEXURE-7). ASSESSEES ABOVE REPLY HAS BEEN CONSIDERED AND FOUN D NOT SATISFACTORY FOR THE FOLLOWING REASONS: (I) THE ASSESSEE HAS FURNISHED A SEPARATE PROFIT AND LO SS ACCOUNT FOR DAIRY BUSINESS AND CATTLE FEED BUSINESS . ON ANALYSIS OF THE SAME IT IS FOUND THAT THE ENTIRE AM OUNT OF THE FOLLOWING EXPENSES HAS BEEN DEBITED IN THE DAIR Y BUSINESS AND THE FOLLOWING AMOUNTS HAS NOT BEEN APPORTIONED BETWEEN THE TWO BUSINESSES THOUGH THE EXPENSES ARE PRIMA FACIE ATTRIBUTABLE TO BOTH THE BUSINESSES. NAME OF EXPENSE AMOUNT OF EXPENSE DEVELOPMENT & RESEARCH EXPENSE 2 20 73 534/- RENT & TAXES 78 77 808/ - AUDIT FEES 51 78 381/- INTEREST AND BANK COMMISSION 6 38 05 340/ - INSURANCE EXPENSES 50 58 805/- IF THESE EXPENSES THE APPORTIONED BETWEEN THE TWO U NITS THEN THERE WOULD BE INCREASED IN LOSS IN CATTLE FEE D BUSINESS AND DECREASED PROFIT FROM BANAS-II BUSINES S. HENCE DEDUCTION U/S 80IB IS NOT ALLOWABLE ON THIS GROUND AS WELL. 7 (II) THE CASE LAWS CITED BY THE ASSESSEE ARE NOT APPLICA BLE ON THE PRESENT SET OF FACTS OF THIS CASE. THE CASE LAW S CITED BY THE ASSESSEE WAS ON DEDUCTION U/S 80J WHEREIN TH E MAIN POINT OF CONSIDERATION WAS INVESTMENT OF SUBSTANTIAL FRESH CAPITAL IN THE INDUSTRIAL SET UP EMPLOYMENT OF REQUISITE LABOUR THEREIN ETC. (III) ON VERIFICATION OF COLUMN NO.13 OF FORM 10CCB WHICH HAS BEEN LEFT BLANK. AS P.ER ACTION POINTS THE ASSE SSEE WAS REQUIRED AND TO SUBMIT AUDIT REPORT ACCOMPANIED BY A COPY OF THE AGREEMENT OF THE ENTERPRISE WITH GOVERNMENT/ LOCAL AUTHORITY FOR CARRYING ON THE BUS INESS OF INFRASTRUCTURE FACILITY. IN CASES OTHER THAN INFRASTRUCTURE FACILITY THE AUDIT REPORT MUST BE ACCOMPANIED BY A COPY OF AGREEMENT/APPROVAL/PERMISSION SIGNED AND ISSUED BY THE CENTRAL GOVERNMENT / STATE GOVT./ LOCAL AUTHORITY F OR CARRYING ON THE ELIGIBLE BUSINESS. ASSESSEE HAS NOT FURNISHED ANY SUCH REPORT. (IV) ON THE BASIS OF THE ABOVE THE DEDUCTION OF RS.3 31 37 355/- WHICH WAS REVISED BY THE ASSESSEE AT RS.82 84 339/- AS PER LETTER DATED 25-11-2000. HOWE VER DISALLOWANCE CLAIMED IN THE RETURN OF INCOME SHOWN AT RS.3 31 37 355/- IS BEING DISALLOWED. BY CLAIMING W RONG DEDUCTION THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME. HENCE PENALTY PROCEEDINGS HA S BEEN INITIATED U/S 271(1)(C) OF THE ACT. 12 IN APPEAL THE LEARNED COMMISSIONER OF INCOME-T AX (APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE OBSERVI NG AS UNDER: AFTER GOING THROUGH RIVAL SUBMISSIONS I FIND THAT THE CLAIM U/S 80IB FOR BANAS DAIRY-II HAD BEEN REVISED TO RS. 82 84 339 VIDE LETTER DATED 25-11-2008 OF THE APPELLANT THIS WAS CONFIRM3ED BY THE AR DURING THE COURSE OF APPELLATE PROCEEDINGS WHEREIN HE INFORMED THAT THE ORIGINAL CLAIM OF RS.3 31 37 355 WAS 100% DEDUCTION CLAIMED WHEREAS T HIS AY THE CLAIM SHOULD BE JUST 25% AND NOT 100% AND THAT IS WHY IT WAS REVISED. AS HON'BLE ITAT AHMEDABAD BENCH D VIDE ORDER DAT ED 7- 11-2008 IN ASSESSMENT YEAR 1004-05 IN THE CASE OF T HE APPELLANT HAD FOUND THE APPELLANT ELIGIBLE FOR DEDU CTION U/S 80IB IN RESPECT OF BANAS-II DAIRY UNIT ALSO THE A PPELLANT IS ENTITLED TO DEDUCTION U/S 80IB FOR BANAS-II THE AO IS THEREFORE DIRECTED TO ALLOW THE DEDUCTION U/S 80IB ON BANAS-I I AT 25%. 8 13 THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMEN TLY ARGUED AND SUPPORTED THE ORDER OF THE LEARNED ASSES SING OFFICER. 14 THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL PASSED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 IN ITA NOS.1163 AN D 1188/AHD/2008 ORDER DATED 7-11-2008 AND SUBMITTED THAT THE APPEAL OF THE REVENUE WAS DISMISSED AND THE ORDER OF THE L EARNED COMMISSIONER OF INCOME-TAX (APPEALS) WAS CONFIRMED BY THE TRIBUNAL ALLOWING DEDUCTION U/S 80IB BY OBSERVING A S UNDER:- 11 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIN D THAT THE ASSESSEE IS STATED TO HAVE SATISFIED THE REQUISITE CONDITIONS FOR CLAIMING DEDUCTION U/S 80IB OF THE ACT IN RESPECT O F BANAS-II DAIRY UNIT. THE DEDUCTION IS CLAIMED FOR PRODUCTION OF BUTTER & MILK POWER. SEPARATE FIGURES FOR PRODUCTION OF EA CH SUCH ITEM IS AVAILABLE SEPARATE IDENTIFIABLE EXPENSES AR E PROVIDED THERE AGAINST. MERE TECHNICALITIES LIKE CERTAIN INF ORMATION IN AUDIT REPORT OR FILING AUDIT REPORT AFTER FILING RE TURN OF INCOME BUT BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS ARE NOT TO COME IN A WAY OF CLAIMING DEDUCTION U/S 80IB OF THE ACT. SINCE NO ERROR IN THE ORDER OF LD. CIT(A) IS POINTE D OUT THE MATTER NEED NOT BE RESTORED BACK AS IT WILL AMOUNT TO GIVING A SECOND INNINGS TO THE AO WHICH IS NOT PERMISSIBLE. SINCE NO INFIRMITY IN THE ORDER OF LD. CIT(A) IS FOUND WE U PHOLD THE ORDER OF LD. CIT(A) IN THIS REGARD. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE THE ASSESSEE CLAIMED DEDUCTION OF RS.3 31 37 3 55/-U/S 80IB IN THE RETURN OF INCOME BEING THE AMOUNT OF 100% INCOM E DERIVED FROM BANAS-II DAIRY EXPANSION PLANT. THE ASSESSEE VIDE I TS LETTER DATED 25-11-2008 REVISED ITS CLAIM FOR DEDUCTION U/S 80IB TO RS.82 84 339/- IN PLACE OF RS.3 31 37 355/- AND ACC ORDING TO THE ASSESSEE IT WAS ENTITLED FOR DEDUCTION AT THE RATE OF 25% NOT 100% OF THE PROFIT OF BANAS-II DAIRY EXPANSION PLANT. THE L EARNED ASSESSING OFFICER DISALLOWED THE CLAIM OF RS.82 84 339/- ALSO BY OBSERVING AS 9 STATED ABOVE IN THIS ORDER. ON APPEAL THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE DISALLOWANCE OF RS .82 84 339/- FOR THE REASONS ALSO QUOTED ABOVE IN THIS ORDER. WE FIN D THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE DI SALLOWANCE OF DEDUCTION BY FOLLOWING THE ORDER OF THE TRIBUNAL PA SSED IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESSMENT YEAR 2004-05. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY GOOD REASON AS TO WHY THE ABOVE ORDER OF THE TRIBUNAL PASSED IN TH E CASE OF THE ASSESSEE ITSELF FOR THE ASSESSMENT YEAR 2004-05 SHO ULD NOT HAVE BEEN FOLLOWED BY THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) FOR THE ASSESSMENT YEAR UNDER APPEAL ALSO . HOWEVER WE FIND THAT IN THE ORDER OF ASSESSMENT THE LEARNED AS SESSING OFFICER OBSERVED THAT FROM THE PERUSAL OF PROFIT AND LOSS A CCOUNT OF DAIRY BUSINESS AND CATTLE FEED BUSINESS OF THE ASSESSEE T HAT CERTAIN COMMON EXPENSES WERE DEBITED IN DAIRY BUSINESS WHIC H WERE ALSO ATTRIBUTABLE FOR CATTLE FEED BUSINESS ALSO. FROM TH IS THE LEARNED ASSESSING OFFICER CONCLUDED THAT AN APPORTIONMENT O F SUCH JOINT OR COMMON EXPENSES THE LOSS OF ASSESSEE IN THE CATTLE FEED BUSINESS WILL INCREASE AND THE PROFIT IN DAIRY BUSINESS WILL BE REDUCED. IN OUR CONSIDERED OPINION THE ABOVE CONCLUSION OF THE LEA RNED ASSESSING OFFICER IS CLEARLY UNSUSTAINABLE. IN OUR VIEW WHEN A PART OF THE EXPENSES WHICH WERE DEBITED BY THE ASSESSEE IN DAIR Y BUSINESS IS APPORTIONED TO THE CATTLE FEED BUSINESS THEN THE P ROFIT OF THE DAIRY BUSINESS WILL INCREASE AND THE LEARNED ASSESSING OF FICER WRONGLY HELD THAT THE SAME WILL BE REDUCED. AS THE PROFIT O F THE DAIRY BUSINESS WILL INCREASE ON ACCEPTANCE OF THE FINDING OF THE LEARNED ASSESSING OFFICER AS RECORDED IN THE ORDER OF ASSES SMENT IT CANNOT BE HELD THAT THE ASSESSEE HAS CLAIMED HIGHER AMOUNT OF DEDUCTION U/S 80IB BY CLAIMING THE SAME AT RS.82 84 339/- RATHER AS PER THIS FINDING IT HAS CLAIMED DEDUCTION FOR THE LESSER AMO UNT BY DEBITING THE COMMON EXPENSES AGAINST THE ELIGIBLE PROFITS. A S THE ISSUE OF ELIGIBILITY OF DEDUCTION U/S 80IB OF THE ACT IN RES PECT OF PROFIT 10 DERIVED FROM BANAS-II DAIRY EXPANSION PLANT HAS ALR EADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2004-05 WE FIND NO GO OD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONE R OF INCOME-TAX (APPEALS). THUS THIS GROUND OF APPEAL OF THE REVEN UE IS DISMISSED. 15 IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER SIGNED AND PRONOUNCED IN THE COURT TODAY ON 22-01-2010 SD/- SD/- (T K SHARMA) JUDICIAL MEMBER (N S SAINI) ACCOUNTANT MEMBER DATE : 22 - 01 - 20 10 COPY OF THE ORDER FORWARDED TO : 1. THE BANASKANTHA DISTRICT CO-OPERATIVE MILK PROD UCERS UNION LTD. PALANPUR 2. THE ACIT B K CIRCLE PALANPUR 3. CIT CONCERNED 4. CIT(A)-XV AHMEDABAD 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABA