Matrix Telecom Pvt. Ltd.,, Baroda v. The Income tax Officer,Ward-4(1),, Baroda

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MUKUL KUMAR SHRAWAT JUDICIAL MEMBER) ITA NO.2610/AHD/2008 [ASSTT. YEAR : 2005-2006] MATRIX TELECOM PVT. LTD. C-1/304. GIDC ESTATE MAKARPURA BARODA. VS. ITO WARD-4(1) BARODA. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. URVASHI SHODAN REVENUE BY : DR.RAJA RAM SAHU O R D E R PER MUKUL KUMAR SHRAWAT JUDICIAL MEMBER: THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMA NATED FROM THE ORDER OF THE CIT(A)-III BARODA DATED 21.4.2008. THE ASSESSEE H AS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE APPEAL: 1. THE LD. ITO HAS ERRED IN LAW AND ON THE FACTS O F THE APPELLANTS CASE IN DISALLOWING THE DEDUCTION U/S.80IB OF THE ACT ON THE FOLLOWING INCOME ON THE ERRONEOUS PLEA THAT THE SAID INCOME IS NOT DERIVED FROM INDUSTRIAL UNDERTAKING: I) IT INCENTIVE RECEIVED : RS.7 20 919/- II) ISO INCENTIVE : RS. 40 100/- III) HIRING CHARGES : RS. 82 500/- IV) INCOME FROM REPAIRING & LABOUR CHAG. : RS.2 60 070/- 2. AS FAR AS THE MAIN GROUND IS CONCERNED THE QUESTI ON OF ADMISSIBILITY OF DEDUCTION UNDER SECTION 80IB IN RESPECT OF IT IN CENTIVES ISO INCENTIVES HIRING CHARGES AND INCOME FROM REPAIRING AND LABOUR CHARGES ARE CONCERNED A VIEW HAS ALREADY BEEN TAKEN IN THE ASS ESSEES OWN CASE IN THE PAST BY THE RESPECTIVE CO-ORDINATE BENCH IN FAVOUR OF THE REVENUE. THE FOLLOWING ORDERS ARE REFERRED. I) ITA NO.2827 & 1280/AHD/2007 (A.Y.2003-04 & 2004-05) ORDER DATED14-8-2007; II) ITA NO.1278 1335 1279/AHD/2007 (A.Y.1999-2000 TO 2001-02) DATED 13-7-2007. ITA NO.2610/AHD/2008 -2- THOUGH IN THE PAST IT WAS CLEARLY HELD THAT AFOREME NTIONED NATURE OF INCOME IS NOT ELIGIBLE FOR THE CLAIM OF DEDUCTION UNDER SE CTION 80IB AND THE MATTER HAD GONE IN FAVOUR OF THE REVENUE HOWEVER IN RESP ECT OF REPAIR AND LABOUR CHARGES THROUGH ONE MA ORDER IT WAS HELD THAT INS TEAD OF ESTIMATING THE LABOUR CHARGES THE SAME SHOULD BE WORKED OUT ON TH E BASIS OF ACTUAL RECEIPTS. FOR REFERENCE MA ORDER DATED 8-10-2010 BEARING MA NO.253 & 255/AHD/2009 ARISING OUT OF ITA NO.1280 & 2827/AHD/ 2007 DATED 8-10- 2010 RELEVANT PARA-3 IS REPRODUCED BELOW: 3. AFTER HEARING THE RIVAL CONTENTIONS WE FIND TH AT THE TRIBUNAL HAS COMMITTED AN ERROR APPARENT FROM RECOR D AS GROUND NO.2 IS NOT ADJUDICATED. WE FURTHER FIND TH AT THE PLEA OF THE ASSESSEE THAT ONLY ACTUAL INCOME EARNED FROM THE REPAIR AND LABOUR CHARGES SHOULD HAVE BEEN IGNORED FOR THE PURPOSES OF COMPUTATION OF DEDUCTION U/S.80IB OF TH E ACT. IN VIEW OF THE ABOVE WE SET ASIDE THIS ISSUE TO THE F ILE OF AO TO RECOMPUTE THE DEDUCTION AFTER VERIFYING THE ACTUAL INCOME EARNED FROM REPAIR AND LABOUR CHARGES AND DECIDE TH E ISSUE. ACCORDINGLY QUA GROUND NO.2 WE RECALL THE ORDER AN D SET ASIDE THE SAME TO THE FILE OF THE AO. 3. ONCE A VIEW HAS ALREADY BEEN EXPRESSED IN ASSESS EES OWN CASE AND THE MATTER WAS RESTORED ON THE QUESTION OF DETERM INATION OF REPAIR AND LABOUR CHARGES ON THE BASIS OF ACTUAL RECEIPTS AND TO RE-COMPUTE THE DEDUCTION OF 80IB THEREFORE FOR THIS YEAR AS WELL WE RESTORE THIS PART OF THE GROUND FOR RE-DETERMINATION AS PER THE DIRECTION. HOWEVER THE REST OF THE CLAIM IN RESPECT OF IT INCENTIVES ISO INCENTIVE AN D HIRING CHARGES ARE HEREBY DISMISSED. THIS GROUND IS PARTLY ALLOWED AS PER THE ABOVE ORDER. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28 TH FEBRUARY 2011. SD/- SD/- (G.D. AGARWAL) VICE-PRESIDENT (MUKUL KR. SHRAWAT) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 28-02-2011 ITA NO.2610/AHD/2008 -3- COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD