The ACIT, Vapi Circle,, Vapi v. Bhaskar Power Projects Pvt.Ltd.,, Daman

ITA 2990/AHD/2007 | 2004-2005
Pronouncement Date: 28-12-2010 | Result: Partly Allowed

Appeal Details

RSA Number 299020514 RSA 2007
Assessee PAN AAACB1306P
Bench Ahmedabad
Appeal Number ITA 2990/AHD/2007
Duration Of Justice 3 year(s) 5 month(s) 16 day(s)
Appellant The ACIT, Vapi Circle,, Vapi
Respondent Bhaskar Power Projects Pvt.Ltd.,, Daman
Appeal Type Income Tax Appeal
Pronouncement Date 28-12-2010
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 28-12-2010
Date Of Final Hearing 16-12-2010
Next Hearing Date 16-12-2010
Assessment Year 2004-2005
Appeal Filed On 12-07-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI A.N. PAHUJA A.M. ) I.T.A. NOS. 2989/AHD./2007 ASSESSMENT YEAR : 1999-2000 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- BH ASKAR POWER PROJECTS P. LTD. VAPI CIRCLE VAPI DAMAN (PAN : AAACB 1306 P) (APPELLANT) (RESP ONDENT) & C.O. NO. 325/AHD/2007 (ARISING OUT OF ITA NO. 2989/AHD/2007) ASSESSMENT YEAR : 1999-2000 BHASKAR POWER PROJECTS P. LTD. -VS.- ASSISTAN T COMMISSIONER OF INCOME TAX DAMAN VAPI CIRCLE VAPI (CROSS OBJECTOR) (RESPONDENT) - A N D I.T.A. NOS. 2990/AHD./2007 ASSESSMENT YEAR : 2004-2005 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- BH ASKAR POWER PROJECTS P. LTD. VAPI CIRCLE VAPI DAMAN (PAN : AAACB 1306 P) (APPELLANT) (RESPONDENT) & C.O. NO. 326/AHD/2007 (ARISING OUT OF ITA NO. 2990/AHD/2007) ASSESSMENT YEAR : 2004-2005 BHASKAR POWER PROJECTS P. LTD. -VS.- ASSISTAN T COMMISSIONER OF INCOME TAX DAMAN VAPI CIRCLE VAPI (CROSS OBJECTOR) (RESPONDENT) ASSESSEE BY : SHRI M.K. PATEL DEPARTMENT BY : DR. (SMT.) SHALINI VER MA D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THESE APPEALS FILED BY THE REVENUE AND CROSS OBJEC TIONS BY THE ASSESSEE ARE AGAINST THE ORDER DATED 15.03.2007 OF LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) VALSAD FOR THE ASSESSMENT YEARS 1999-2000 AND 2004-2005. 2 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 2. VARIOUS GROUNDS RAISED BY THE REVENUE IN ITS APP EAL FOR THE ASSESSMENT YEAR 1999-2000 ARE AS UNDER :- (1)ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEARNED CIT(A.) HAS ERRED IN HOLDING THAT THE ACTIVITY OF A SSESSEE IS MANUFACTURING ACTIVITY WITHIN THE MEANING OF SEC. 80IB AND NOT AS SEMBLING. (2) IN VIEW OF SUPREME COURT JUDGMENT IN THE CASE O F GEM GRANITES VS.- CIT (271 ITR 322) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A.) HAS ERRED IN DECIDING THE CASE OF THE ASSESSEE RELYING ON THE JUDGMENTS IN CENTRAL EXCISE MATTERS AS THE HON'BLE SUPREME COURT HAS HELD THAT PROVISIONS IN CENTRAL EXCISE TARIFF A ND CUSTOMS TARIFFS ARE NOT PROPER AID TO CONSTRUE INCOME TAX ACT. VARIOUS GROUNDS RAISED BY THE REVENUE IN ITS APPEAL FOR THE ASSESSMENT YEAR 2004-05 ARE AS UNDER :- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED CIT(A.) HAS ERRED IN HOLDING THAT THE ACTIVITY OF A SSESSEE IS MANUFACTURING ACTIVITY WITHIN THE MEANING OF SEC. 8 0IB AND NOT ASSEMBLING. (2) IN VIEW OF SUPREME COURT JUDGMENT IN THE CASE OF GE M GRANITES VS.- CIT (271 ITR 322) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A.) HAS ERRED IN DECIDING THE C ASE OF THE ASSESSEE RELYING ON THE JUDGMENTS IN CENTRAL EXCISE MATTERS AS THE HON'BLE SUPREME COURT HAS HELD THAT PROVISIONS IN CENTRAL E XCISE TARIFF AND CUSTOMS TARIFFS ARE NOT PROPER AID TO CONSTRUE INCO ME TAX ACT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW THE LD. CIT(A.) HAS ERRED IN HOLDING THAT THE BUSINESS OF THE UNIT-II I S NOT ON ACCOUNT OF SPITTING UP AND RECONSTRUCTION OF OLD UNIT WITHOUT CONSIDERING THE FACTS NARRATED BY THE A.O. IN THE ASSESSMENT ORDER. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED CIT(A.) HAS ERRED IN HOLDING THAT THE PAYMENTS OF P F AND ESIC AMOUNTING TO RS.1 72 163/- MADE BEFORE FILING THE R ETURN ARE ELIGIBLE FOR DEDUCTION WITHOUT CONSIDERING THE FACT THAT THE DUE DATES IN THE RESPECTIVE ACTS FOR THE SAID PAYMENTS IS 15 TH AND 21 ST OF EVERY MONTH. (5) IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEAR NED CIT(A.) BE SET ASIDE AND THAT THE ORDER OF THE A.O. BE RESTORED. 3. BRIEF FACTS RELATING TO THE CONTROVERSY INVOLVED IN THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 1999-2000 AND GROUNDS NO. 1 TO 3 FO R THE ASSESSMENT YEAR 2004-05 ARE THAT THE 3 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF ASSEM BLING OF DIESEL GENERATOR SETS AND ITS UNIT LOCATED IN THE UNION TERRITORY OF D&NH WHICH IS BA CKWARD AREA AS SPECIFIED IN THE VII SCHEDULE TO THE INCOME TAX ACT 1961. IN THE ASSESS MENT YEAR 1999-2000 THE ASSESSEE CLAIMED ENTIRE PROFIT AMOUNTING TO RS.38 92 261/- AS DEDUCT ION UNDER SECTION 80IA. IN THE ASSESSMENT YEAR 2004-05 ALSO THE ASSESSEE CLAIMED DEDUCTION U NDER SECTION 80IB AMOUNTING TO RS.96 06 121/-. FOR BOTH THE ASSESSMENT YEARS THE ASSESSING OFFICER DISALLOWED THE SAME. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) VIDE COMMON ORDER DATED 15.03.2007 RELYING ON THE FINDING OF TH E HON'BLE SUPREME COURT IN THE CASE OF BPL INDIA LIMITED VS.- COMMISSIONER OF CENTRAL EXCISE S ORDER DATED 7.5.2002 IN CASE NO. APPEAL (CIVIL) 2243 OF 1999 CAME TO THE CONCLUSION THAT A CTIVITY AS CARRIED OUT BY THE ASSESSEE IS A MANUFACTURING ACTIVITY AND ALLOWED APPEAL OF THE AS SESSEE ON THIS GROUND. WHILE HOLDING SO THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS REL IED ON OTHER CENTRAL EXCISE JUDGMENTS. HOWEVER IN VIEW OF THE HON'BLE SUPREME COURT JUDGM ENT IN THE CASE OF GEM GRANITES VS.- CIT (271 ITR 322) ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW THE LEARNED CIT(A.) HAS ERRED IN DECIDING THE CASE OF THE ASSESSEE RELYING ON THE JUDGMENTS IN CENTRAL EXCISE MATTERS AS THE HON'BLE SUPEME COURT HAS HELD THAT PROVISIONS I N CENTRAL EXCISE TARIFF AND CUSTOMS TARIFFS ARE NOT PROPER AID TO CONSTRUE INCOME TAX ACT. WHIL E DELIVERING THE DECISION THE HON'BLE SUPREME COURT HAS HELD AS UNDER :- BOTH UNDER THE CUSTOMS TARIFF ACT AND THE CENTRAL EXCISE TARIFF ACT A DISTINCTION IS DRAWN BETWEEN MINERALS AND PROCESSED MINERALS. HOWEVER A CLASSIFICATION WHICH IS RELEVANT FOR THE PURPOSE OF DETERMINING THE RATE OF DUTY UNDER THOSE ACTS CAN N OT BE IMPORTED INTO THE INCOME TAX ACT WHICH MAKES NO SUCH DISTINCTION . AGGRIEVED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION UNDER SECTION 80IA FOR THE ASSESSMENT YEAR 1999-2000 AND UNDER SECTION 80IB FOR THE ASSESSMENT YEAR 2004-05 THE REVENUE IN IS APPEALS. 4. AT THE TIME OF HEARING BEFORE US BOTH SIDES CON CEDED THAT THIS ISSUE WAS CONSIDERED BY THE DECISION OF ITAT D BENCH AHMEDABAD IN ASSES SEES OWN CASE FOR THE ASSESSMENT YEARS 2000-01 2001-02 2002-03 AND 2005-06 IN FAVOUR OF THE ASSESSEE. THE TRIBUNAL IN ITS COMMON ORDER IN ITA NO. 2812/AHD/2008 AND OTHERS DATED 20. 02.2009 HAS CONCLUDED IN PARAGRAPH-7 OF ITS ORDER THAT THE CLAIM OF THE ASSESSEE FOR THE DE DUCTION UNDER SECTION 80IB WAS IN ORDER AS THE 4 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 ASSESSEE WAS CARRYING ON MANUFACTURING ACTIVITIES. THE TRIBUNAL HAS COME TO THE ABOVE CONCLUSION AFTER EXAMINING THE FACTS OF THE CASE R ELEVANT LAW AND APPLICABLE DECISIONS AS REFLECTED FROM PAGE NOS. 3 TO 19 OF ITS ORDER. SIM ILAR VIEW HAS ALSO BEEN TAKEN IN ASSESSEES OWN CASE IN THE ASSESSMENT YEAR 2003-04 WHEREIN THE AS SESSING OFFICER DENIED THE DEDUCTION UNDER SECTION 80IB. ON APPEAL THE LEARNED COMMISSIONER O F INCOME TAX (APPEALS) HELD THAT THE ACTIVITY OF THE ASSESSEE IS MANUFACTURING ACTIVITY WITHIN THE MEANING OF SECTION 80IB OF THE INCOME TAX ACT 1961. ON FURTHER APPEAL BY THE REVE NUE THE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS UPHELD BY THE ITAT D BENCH AHMEDABAD VIDE ORDER DATED 06.01.2010 IN ASSESSEES OWN CASE IN IT A NO. 2391/AHD/2006 WITH CO NO. 11/AHD/2007 FOR THE ASSESSMENT YEAR 2003-04. BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCU MSTANCES OF THE CASE AND THE DECISION DATED 20.02.2009 OF ITAT D BENCH AHMEDABAD IN I TA NO. 2812/AHD/2008 (SUPRA) WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) FOR BOTH THE ASSESSMENT YEARS DIRECTING THE ASSESSING OFFICE R TO ALLOW THE DEDUCTION UNDER SECTION 80IA/ 80IB IN RESPECT OF ITS UNIT LOCATED IN THE UNION TE RRITORY OF D&NH. RESULTANTLY THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 1999-2000 AND GROUN DS NO. 1 TO 3 OF REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004-05 ARE DISMISSED. 5. WITH REGARD TO GROUND NO. 4 OF PF AND ESI AMOUNT ING TO RS.1 72 163/- IN REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004-05 SHRI M.K. P ATEL LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE POINTED THAT AS PER THE JUDGMENT OF HON'BL E SUPREME COURT IN THE CASE OF C.I.T. VS. ALOM EXTRUSIONS LTD. (2009) 319 ITR 306 (SC) CONT RIBUTION TO P.F. WHICH IS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME IS ALLOWAB LE AS DEDUCTION U/S. 43B OF THE I. T. ACT 1961. HE ACCORDINGLY SUBMITTED THAT FOLLOWING THE JUDGMEN T OF THE HON'BLE SUPREME COURT (SUPRA) ASSESSING OFFICER BE DIRECTED TO ALLOW EMPLOYEES CO NTRIBUTION AMOUNTING TO RS.1 72 163/- WHICH WAS PAID WELL BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 6. ON THE OTHER HAND DR. (SMT.) SHALINI VERMA LD. D.R. APPEARING ON BEHALF OF THE REVENUE POINTED OUT THAT EMPLOYEES CONTRIBUTION IS COVERED BY SECTION 36(1)(VA) ALONE. SECTION 43B(B) SPEAKS ONLY EMPLOYERS CONTRIBUTION. IN RESPECT OF EMPLOYEES CONTRIBUTION UNDER SECTION 43B 5 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 HAS NO APPLICATION. HE ACCORDINGLY CONTENDED THAT T HE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE QUASHED. 7. RIVAL SUBMISSIONS WERE CONSIDERED. WE HAVE CAREF ULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE JUDGMENT OF THE HO N'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD. (SUPRA). IT IS PERTINENT TO NOTE TH AT THE SAID JUDGMENT OF THE HON'BLE SUPREME COURT IS APPLICABLE IN RESPECT OF EMPLOYERS AS WEL L AS EMPLOYEES CONTRIBUTION. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW THE EMPLOYEES CONTRIBUTION TO THE EXTENT IT IS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. RESUL TANTLY THIS GROUND OF APPEAL IS DISMISSED. 8. GROUNDS OF CROSS OBJECTION RAISED BY THE ASSESSE E FOR THE ASSESSMENT YEAR 1999-2000 ARE AS UNDER :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RIG HTLY HELD THAT THE ACTIVITY PERFORMED BY THE RESPONDENT IS MANUFACTURING ACTIVI TY ELIGIBLE FOR DEDUCTION U/S. 80IB. (2) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS RIGHTLY HELD THAT THE ACTIVITIES CARRIED OUT BY THE RESPONDENT AMOUNTS TO MANUFACTURE OF AN ARTICLE/ THING BY CORRECTLY APPLYING THE RATIOS LAID DOWN BY THE COURTS IN THE DECISIONS RELIED UPON BY THE RESPONDENT. (3) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RI GHTLY HELD THAT THE RESPONDENT IS ELIGIBLE FOR DEDUCTION U/S. 80IB OF THE INCOME T AX ACT 1961. (4) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RI GHTLY DIRECT THE LEARNED ASSESSING OFFICER TO ALLOW THE BENEFIT OF NETTING O UT INTEREST INCOME FOR DETERMINING QUANTUM OF DEDUCTION U/S. 80IB OF THE I NCOME TAX ACT. (5)THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HA S RIGHTLY ALLOWED THE ALTERNATE CONTENTION MADE B Y THE RESPONDENT THAT T HE EXCLUSION OF INSURANCE CLAIM RECEIVED TO THE TUNE OF RS.2 06 125/- SHALL B E RESTRICTED TO THE RECEIPT BY WAY OF INSURANCE CLAIM AS REDUCED BY CORRESPONDING LOSSES IF ANY AND EXPENSES WHILE GRANTING DEDUCTION U/S. 80IB OF THE INCOME TAX ACT. (6) IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEAR NED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD TO THE ABOVE EXTENT. 6 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 (7) ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF T HE CASE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE D IRECTED THE LEARNED ASSESSING OFFICER TO INCLUDE THE FOLLOWING ITEMS OF INCOME FROM PROFIT OF THE BUSINESS WHILE GRANTING DEDUCTION U/S. 80IB. INSURANCE CLAIM - RS.2 06 125/- CANCELLATION CHARGES - RS. 55 500/- OTHER INCOME - RS. 61 744/- 9. GROUNDS OF CROSS OBJECTION RAISED BY THE ASSESSE E FOR THE ASSESSMENT YEAR 2000-05 ARE AS UNDER :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RIG HTLY HELD THAT THE ACTIVITY PERFORMED BY THE RESPONDENT IS MANUFACTURING ACTIVI TY ELIGIBLE FOR DEDUCTION U/S. 80IB. (2) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS RIGHTLY HELD THAT THE ACTIVITIES CARRIED OUT BY THE RESPONDENT AMOUNTS TO MANUFACTURE OF AN ARTICLE/ THING BY CORRECTLY APPLYING THE RATIOS LAID DOWN BY THE COURTS IN THE DECISIONS RELIED UPON BY THE RESPONDENT. (3) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RIG HTLY HELD THAT THE RESPONDENTS UNIT-II IS NOT FORMED BY SPLITTING UP AND RECONSTRU CTION OF OLD UNIT. (4) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RI GHTLY HELD THAT THE RESPONDENT IS ELIGIBLE FOR DEDUCTION U/S. 80IB OF THE INCOME T AX ACT 1961. (5) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW HAS RI GHTLY DIRECT THE LEARNED ASSESSING OFFICER TO ALLOW THE BENEFIT OF NETTING O UT INTEREST INCOME FOR DETERMINING QUANTUM OF DEDUCTION U/S. 80IB OF THE I NCOME TAX ACT. (6) ON APPRECIATION OF FACTS AND CIRCUMSTANCES OF T HE CASE AND LAW THE C IT(A) HAD RIGHTLY HELD THAT THE PAYMENTS OF PF AND ESIC A MOUNTING TO RS.1 72 163/- MADE BEFORE FILING THE RETURN ARE ELIGIBLE FOR DEDU CTION U/S. 43B OF THE INCOME TAX ACT. (7)IT IS THEREFORE PRAYED THAT THE ORDER OF THE L EARNED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD TO THE ABOVE EXTENT. (8) ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE D IRECTED THE LEARNED 7 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 ASSESSING OFFICER TO INCLUDE THE FOLLOWING ITEMS OF INCOME FROM PROFIT OF THE BUSINESS WHILE GRANTING DEDUCTION U/S. 80IB. SHORT & EXCESS - RS. 4 919/- CANCELLATION CHARGES - RS. 2 100/- OTHER INCOME - RS.8 30 944/- 10. GROUNDS NO. 1 TO 6 FOR THE ASSESSMENT YEAR 1999 -2000 AND GROUNDS NO. 1 TO5 FOR THE ASSESSMENT YEAR 2004-05 OF THE CROSS OBJECTIONS ARE IN SUPPORT OF THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DIRECTING THE A SSESSING OFFICER TO ALLOW DEDUCTION UNDER SECTION 80IB OF THE INCOME TAX ACT 1961. IN VIEW O F OUR DECISION IN REVENUES APPEALS FOR THE ASSESSMENT YEARS 1999-2000 AND 2004-05 THESE ARE R ENDERED INFRUCTUOUS AND THEREFORE DISMISSED. 11. GROUND NO. 6 FOR THE ASSESSMENT YEAR 2004-05 IS IN SUPPORT OF THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WHEREBY HE HEL D THAT PAYMENT TO PF AND ESI AMOUNTING TO RS.1 72 163/- MADE BEFORE THE DUE DATE FOR FILIN G THE RETURN OF INCOME IS ALLOWABLE AS DEDUCTION U/S. 43B OF THE I. T. ACT 1961. IN VIEW OF OUR DECISION ON GROUND NO. 7 ABOVE IN REVENUES APPEAL FOR THE ASSESSMENT YEAR 2004-05 (S UPRA) THIS GROUND OF CROSS OBJECTION IS RENDERED INFRUCTUOUS AND THEREFORE DISMISSED. 12. GROUND NO. 7 OF CROSS OBJECTION FOR THE ASSESSM ENT YEAR 1999-2000 AND GROUND NO. 8 OF CROSS OBJECTION FOR THE ASSESSMENT YEAR 2004-05 ARE AGAINST NON-ALLOWANCE OF DEDUCTION UNDER SECTION 80IB OF THE ACT IN RESPECT OF VARIOUS ITEMS MENTIONED IN THE GROUNDS OF APPEAL. ON THIS ISSUE WE HAVE HEARD BOTH THE SIDES AND OUR DE CISION IS AS UNDER :- (I) WITH REGARD TO NON-ALLOWANCE OF DEDUCTION UND ER SECTION 80IB AND INSURANCE CLAIM AMOUNTING TO RS.2 06 125/- THE LD. COUNSEL O F THE ASSESSEE POINTED OUT THAT THIS INSURANCE PREMIUM PERTAINED TO THE RAW MATERIAL THEREFORE O N THIS ISSUE DEDUCTION UNDER SECTION 80IB IS ADMISSIBLE. HE FURTHER STATED THAT HE HAS NO OBJECT ION IN CASE THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR VERIFYING THE NATURE OF INSUR ANCE CLAIM. IT IS PERTINENT TO NOTE THAT NEITHER THE ASSESSING OFFICER NOR THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MADE AN ATTEMPT TO FIND OUT THE NATURE OF THIS INSURANCE CLAIM. WE ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSEE SHOULD FURNISH NECESSARY EVIDENCES INDICATING THE NATURE OF INSURANCE CLAIM ASSESSING OFFICER WI LL EXAMINE THE SAME IF IT PERTAINED TO RAW 8 ITA NOS. 2989-2990-AHD- 2007 & CO NOS. 325-326-AHD-2007 MATERIAL IN THAT EVENT ASSESSING OFFICER IS DIRECT ED NOT TO EXCLUDE THE INSURANCE CLAIM FOR COMPUTING THE DEDUCTION UNDER SECTION 80IB OF THE A CT. (II) SIMILARLY THE NATURE OF CANCELLATION CHARGES WAS NOT EXAMINED BY ANY OF THE AUTHORITIES BELOW. THIS IS ALSO RESTORED TO THE FIL E OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSEE SHOULD FURNISH THE NATURE OF CANCELLATION CHARGES AMOUNTING TO RS.55 500/- FOR THE ASSESSMENT YEAR 1999-2000 AND RS.2 100/- FOR THE AS SESSMENT YEAR 2004-05. ASSESSING OFFICER WILL EXAMINE THE SAME AND IF INCOME IS ELIGIBLE UND ER SECTION 80IB ASSESSING OFFICER WILL CONSIDER THE ALLOWANCE OF THE SAME BY PASSING SPEAK ING ORDER. (III) WITH REGARD TO NON-ALLOWANCE OF DEDUCTION UN DER SECTION 80IB ON OTHER INCOME AMOUNTING TO RS.61 744/- FOR THE ASSESSMENT YEAR 19 99-2000 AND RS.8 30 944/- FOR THE ASSESSMENT YEAR 2004-05 THE LD. COUNSEL OF THE ASS ESSEE SUBMITTED THAT THIS IS NOT PRESSED. 12. IN THE RESULT FOR STATISTICAL PURPOSES BOTH T HE APPEALS FILED BY THE REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE TREATED AS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 28.12.20 10 SD/- SD/- (A.N. PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28/ 12 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.