The ACIT,(OSD)-1, Range-4,, Ahmedabad v. Mission Pharma Logistics Pvt.Ltd.,, Ahmedabad

ITA 331/AHD/2011 | 2004-2005
Pronouncement Date: 25-04-2014 | Result: Dismissed

Appeal Details

RSA Number 33120514 RSA 2011
Assessee PAN AACCM6113D
Bench Ahmedabad
Appeal Number ITA 331/AHD/2011
Duration Of Justice 3 year(s) 2 month(s) 17 day(s)
Appellant The ACIT,(OSD)-1, Range-4,, Ahmedabad
Respondent Mission Pharma Logistics Pvt.Ltd.,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 25-04-2014
Date Of Final Hearing 23-04-2014
Next Hearing Date 23-04-2014
Assessment Year 2004-2005
Appeal Filed On 07-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD . .. . . .. . '# ' $ '# ' $ '# ' $ '# ' $ BEFORE SHRI KUL BHARAT JUDICIAL MEMBER AND SHRI T.R.MEENA ACCOUNTANT MEMBER ./ I.T.A. NO.331/AHD/2011 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR : 2004-05) THE ACIT (OSD)-I RANGE-4 AHMEDABAD & & & & / VS. MISSION PHARMA LOGISTICS (INDIA) PVT.LTD. 501 5 TH FLOOR ANIKET BUILDING NR.MUNICIPAL MARKET CG ROAD AVRAGPURA AHMEDABAD ) '# ./*+ ./ PAN/GIR NO. : AACCM 6113 D ( ) / // / APPELLANT ) .. ( -.) / RESPONDENT ) ) / ' / APPELLANT BY : SHRI O.P. BATHEJA SR.D.R. -.) 0 / ' / RESPONDENT BY : SHRI S.N.SOPARKAR SR.ADV. WITH MS.URVASHI SHODHAN A.R. &1 0 # / / / / DATE OF HEARING : 23/04/2014 23( 0 # / DATE OF PRONOUNCEMENT : 25/04/2014 '4 / O R D E R PER SHRI KUL BHARAT JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VIII AHMEDA BAD (CIT(A) FOR SHORT) DATED 25/11/2010 PERTAINING TO ASSESSME NT YEAR (AY) 2004- 05. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1.1. THE LEARNED CIT(A)-VIII AHMEDABAD HAS ERRED IN LAW AD ON FACTS IN DELETING THE PENALTY OF RS.1 41 59 604/- L EVIED U/S.271(1)(C) OF THE ACT BY THE ASSESSING OFFICER WITHOUT ITA NO.331/AHD/ 2011 ACIT(OSD)-I VS.MISSION PHARMA LOGISTICS (I) PVT.L TD. ASST.YEAR 2004-05 - 2 - PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE ASSESSING OFFICER. 1.2. IN DOING SO THE LEARNED CIT(A) HAS ERRED IN LAW AN D ON FACTS IN NOT APPRECIATING THAT THE ASSESSEES CLAIM OF EXEMP TION U/S.10A OF THE ACT FOR AN AMOUNT OF RS.3 94 69 281/- WAS NO T BONAFIDE AND THE ASSESSEE FAILED TO SUBSTANTIATE ITS AFORES AID CLAIM FOR EXEMPTION ON THE BASIS OF THE PROVISIONS OF THE INC OME-TAX ACT AND THE POSITION OF LAW. 1.3. IN DOING SO THE LEARNED CIT(A) HAS ERRED IN LAW AN D ON FACTS IN AGREEING WITH THE CLAIM OF THE ASSESSEE THAT EXPLAN ATION1 BELOW SECTION 271(1)(C) WAS NOT ATTRACTED IN THIS CASE WI THOUT APPRECIATING THAT THE ASSESSEE WAS NOT ABLE TO SUBS TANTIATE ITS AFORESAID CLAIM FOR EXEMPTION U/S.10A OF THE ACT AN D THE EXPLANATION FURNISHED BY THE ASSESSEE REGARDING THE AFORESAID CLAIM WAS NOT REASONABLE AND BONAFIDE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE DECISION OF THE ASS ESSING OFFICER. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF TH E LEARNED CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. 2. AT THE OUTSET THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT IN QUANTUM APPEAL THE HONBLE ITAT B BENCH AHMEDABA D IN ITA NO.2410/AHD/2007 FOR AY 2004-05 IN ASSESSEES OWN C ASE HAS SET ASIDE THE ORDERS OF THE ASSESSING OFFICER AND THE LD.CIT( A) AND DIRECTED THE AO FOR MAKING A FRESH ASSESSMENT. A PHOTOCOPY OF T HE ORDER OF THE TRIBUNAL DATED 29/05/2009 IS PLACED ON RECORD. 3. THE LD.SR.DR OF THE REVENUE HAS SUPPORTED THE OR DER OF THE ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.331/AHD/ 2011 ACIT(OSD)-I VS.MISSION PHARMA LOGISTICS (I) PVT.L TD. ASST.YEAR 2004-05 - 3 - WE FIND THAT THE HONBLE ITAT B BENCH AHMEDABAD I N QUANTUM APPEAL VIDE ORDER DATED 29/05/2009 IN PARA-9 HAS DE CIDED BY OBSERVING AS UNDER:- 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE ORDERS OF THE LOWER AUTHORITIES AD THE MATERIAL AVAILABLE ON RECORD. I THE INSTANT CASE THE SHORT ISSUE TO BE DECIDED BY US I S THAT WHETHER CLAIM OF DEDUCTION U/S.80HHC OF THE INCOME TAX ACT 1961 WAS ALLOWABLE TO THE ASSESSEE WHERE SUCH CLAIM WAS NOT MADE IN THE RETURN OF INCOME FILED BUT WAS MADE BEFORE THE ASS ESSING OFFICER WHEN THE CLAIM FOR DEDUCTION U/S.10A OF THE INCOME TAX ACT 1961 WAS DENIED TO THE ASSESSEE. THE ASSESSING OFFICER AS WELL AS THE LD.CIT(APPEALS) HAS DISALLOWED THE CLAIM OF DEDUCTI ON TO THE ASSESSEE ON THE GROUND THAT THE SAME WAS NOT CLAIME D IN THE RETURN OF INCOME FILED NOR ANY REVISED RETURN WAS FILED F OLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GO ETZE (INDIA)LTD. WE FIND THAT HONBLE DELHI HIGH COURT IN THE CASE OF JAI PARABOLIC SPRINGS LTD.(SUPRA) AND THE JAIPUR BE NCH IN THE CASE OF WORLD WIDE STONES (SUPRA) HAS HELD THAT THE TRIB UNAL HAD POWER TO ALLOW DEDUCTION FOR EXPENDITURE TO THE ASS ESSEE TO WHICH IT WAS OTHERWISE ENTITLED TO EVENTHOUGH NO CLAIM WA S MADE BY THE ASSESSEE IN THE RETURN OF INCOME. MOREOVER IN THE INSTANT CASE IT IS OBSERVED THAT THE ASSESSEE PREFERRED CLAIM OF DE DUCTION UNDER SECTION 10A OF THE ACT. ONLY WHEN THE ASSESSEE WAS INFORMED THAT HIS CLAIM UNDER SECTION 10A IS NOT ALLOWABLE OCCASI ON FOR CLAIMING DEDUCTION UNDER SECTION 80HHC AROSE. THE ASSESSEE COULD NOT HAVE CLAIMED DEDUCTION UNDER SECTION 10A AND UNDER SECTION 80HHC SIMULTANEOUSLY IN THE SAME COMPUTATION. THE ASSESSEE SUBMITTED BEFORE US THAT IT DULY DISCLOSED IN THE R ETURN BY WAY OF A NOTE THAT IN CASE DEDUCTION UNDER SECTION 10A IS NO T ALLOWED THEN DEDUCTION UNDER SECTION 80HHC MAY BE ALLOWED. THE ABOVE SUBMISSION OF THE ASSESSEE WAS NOT DISPUTED BY THE LD.DEPARTMENTAL REPRESENTATIVE. IT IS NOT IN DISPU TE THAT THE AUDIT REPORT REQUIRED FOR CLAIMING DEDUCTION UNDER SECTIO N 80HHC WAS FILED BEFORE COMPLETION OF THE ASSESSMENT. IN THE ABOVE CIRCUMSTANCES IN OUR CONSIDERED VIEW THE LD.CIT(APP EALS) WAS NOT JUSTIFIED IN NOT ENTERTAINING THE BONAFIDE CLAIM OF THE ASSESSEE BY EXERCISING APPELLATE POWER CONFERRED UPON HIM. THU S IN OUR ITA NO.331/AHD/ 2011 ACIT(OSD)-I VS.MISSION PHARMA LOGISTICS (I) PVT.L TD. ASST.YEAR 2004-05 - 4 - OPINION THE ASSESSEE WAS ELIGIBLE FOR ACCLAIMING DE DUCTION UNDER SECTION 80HHC AND THE DEDUCTION IN ACCORDANCE WITH THE LAW OUGHT TO HAVE BEEN ALLOWED TO THE ASSESSEE. WE THE REFORE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE. HOWEVER AS THE MATTER REQUIRES VERIFICATION WHETHER THE ASSESSEE HAS FULFILLED ALL THE CONDITIONS LAID DOWN IN SECTION 80HHC OF THE IN COME TAX ACT 1961 TO BE ELIGIBLE FOR DEDUCTION THEREFORE THE M ATTER NEEDS TO BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATING THE SAME IN ACCORDANCE WITH LAW AFTER ALLOWING REASONA BLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ORDER ACCORDINGLY. 4.1. IN VIEW OF THE DECISION OF THE HONBLE CO-ORDI NATE BENCH IN QUANTUM APPEAL(SUPRA) WE HEREBY DIRECT THE AO TO D ELETE THE PENALTY. HOWEVER THE AO WILL BE AT LIBERTY TO INITIATE PENA LTY PROCEEDINGS AFTER PASSING A FRESH ASSESSMENT IN ACCORDANCE WITH LAW. THUS GROUNDS OF REVENUES APPEAL ARE REJECTED. 5. IN THE RESULT REVENUES APPEAL STANDS DISMISSED . ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/04/2014 ..& .&../ T.C. NAIR SR. PS ITA NO.331/AHD/ 2011 ACIT(OSD)-I VS.MISSION PHARMA LOGISTICS (I) PVT.L TD. ASST.YEAR 2004-05 - 5 - '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7(/ COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT 2. -.) / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-VIII AHMEDABAD 5. 7: -& / DR ITAT AHMEDABAD 6. :;' <1 / GUARD FILE. '4& '4& '4& '4& / BY ORDER .7 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. DATE OF DICTATION .. 23.4.14 (DICTATION-PAD 3-PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24.4.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.25.4.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.4.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER