Shri Asfaqhussain Shabbirali Masami, Bhavnagar v. The ACIT., Range-2,, Bhavnagar

ITA 3822/AHD/2007 | 1999-2000
Pronouncement Date: 23-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 382220514 RSA 2007
Bench Ahmedabad
Appeal Number ITA 3822/AHD/2007
Duration Of Justice 2 year(s) 6 month(s) 15 day(s)
Appellant Shri Asfaqhussain Shabbirali Masami, Bhavnagar
Respondent The ACIT., Range-2,, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 23-04-2010
Date Of Final Hearing 20-04-2010
Next Hearing Date 20-04-2010
Assessment Year 1999-2000
Appeal Filed On 08-10-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MAHAVIR SINGH JUDICIAL MEMBER) ITA.NO.3822 AND 3823/AHD/2007 ASSTT.YEAR : 1999-2000 AND 2004-2005 SHRI ASFAQHUSSAIN SHABBIRALI MASAMI PROP. OF M/S.LUCKY STEEL INDUSTRIES KHOJAWAD AMBA CHOWK BHAVNAGAR. VS. ACIT RANGE-2 BHAVNAGAR. (APPELLANT) (RESPONDENT) REVENUE BY : SMT.NEETA SHAH ASSESSEE BY : SHRI VIMAL DESAI O R D E R PER G.D. AGARWAL VICE-PRESIDENT: THESE ARE TWO APPEALS BY THE ASSESSEE AGAINST THE ORDERS OF THE CIT(A)-XVII BOTH DATED 23-8-2007 FOR THE ABOVE ASSESSMENT YEARS ARISING OUT OF THE ORDERS OF THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961. SINCE GROUNDS RAISED IN BOTH THE APPEALS ARE MORE OR LESS COMMON FOR THE SAKE OF CO NVENIENCE WE DISPOSE OF BOTH THE APPEALS BY THIS COMMON ORDER. ITA NO.3822/AHD/2007 FOR A.Y.1999-2000 2. THE FIRST GROUND RAISED IN THIS APPEAL IS GENERA L IN NATURE NEEDS NO ADJUDICATION. THE SECOND GROUND READS AS UNDER: 1. THE LD.AO HAS ERRED ON FACTS AND IN LAW IN DISA LLOWING THE CLAIM OF DEDUCTION U/S.80IA AMOUNTING TO RS.1 90 220/-. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE SAME. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATER IAL PLACED BEFORE US. WE FIND THAT THIS ISSUE IS TO BE SQUARELY COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF V IJAY SHIP BREAKING CORPN VS. CIT 314 ITR 398 WHEREIN THE HONBLE APEX COURT HELD THAT THE ASSESSEE ENGAGED IN THE BUSINESS OF SHIP BREAKING GAVE RISE TO THE PRODUCTION OF A DISTINCT AND DIFFERENT ARTICLE AND IT IS ENTITLED T O RELIEF UNDER SECTION 80HH AND ITA.NO.3822 AND 3823/AHD/2007 -2- 80I. THE RATIO OF THE ABOVE DECISION WOULD BE SQUA RELY APPLICABLE WITH REGARD TO THE CLAIM OF THE DEDUCTION UNDER SECTION 80IA. WE THEREFORE RESPECTFULLY FOLLOWING THE SAME DIRECT THE AO TO ALLOW DEDUCTIO N UNDER SECTION 80IA TO THE ASSESSEE IN ACCORDANCE WITH LAW. 4. GROUND NO.3 OF THE ASSESSEES APPEAL WAS NOT PRE SSED BY THE LEARNED COUNSEL AT THE TIME OF HEARING. THE SAME IS ACCORD INGLY REJECTED. ITA NO.3823/AHD/2007 5. THE FIRST GROUND RAISED IN THIS APPEAL IS GENERA L IN NATURE NEEDS NO ADJUDICATION. THE SECOND GROUND IS SIMILAR TO GROU ND NO.2 FOR A.Y.1999- 2000. FOR THE DETAILED DISCUSSION THEREIN WE DIREC T THE AO TO ALLOW THE DEDUCTION UNDER SECTION 80IB IN ACCORDANCE WITH THE LAW. 6. THE GROUND NO.3 READS AS UNDER: THE LD.AO HAS ERRED IN LAW AND ON FACTS IN DISALLO WING THE CLAIM OF MEMBERSHIP FEES PAID FOR BUSINESS AMOUNTING TO RS. 1 49 730/-. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE SAME. THE LD .CIT(A) HAS ERRED IN DECIDING THE APPEAL WITHOUT CONSIDERING THE DECLARA TION U/S.158A FOR IDENTICAL QUESTION IN LAW FILED IN FORM 8. 7. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT THE IDENTICAL ISSUE IN ASSESSEES CASE IS PEND ING BEFORE THE HONBLE JURISDICTIONAL HIGH COURT FOR ADJUDICATION. THE AS SESSEE HAS ALSO FILED AN APPLICATION UNDER SECTION 158A IN THIS REGARD. TH E LEARNED DR ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELO W AND SHE HAS STATED THAT IN THE ORDER OF THE LOWER AUTHORITIES THERE IS NO MENT ION OF FILING OF THE APPLICATION UNDER SECTION 158A. 8. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED MATERIAL PLACED BEFORE US. SECTION 158A OF THE INCOME TAX ACT IS A SPECIAL PROVISION FOR AVOIDING REPETITIVE APPEALS WHICH READS AS UNDER: ITA.NO.3822 AND 3823/AHD/2007 -3- 158A. PROCEDURE WHEN ASSESSEE CLAIMS IDENTICAL QUES TION OF LAW IS PENDING BEFORE HIGH COURT OR SUPREME COURT.--(1) NO TWITHSTANDING ANYTHING CONTAINED IN THIS ACT WHERE AN ASSESSEE C LAIMS THAT ANY QUESTION OF LAW ARISING IN HIS CASE FOR AN ASSESSME NT YEAR WHICH IS PENDING BEFORE THE ASSESSING OFFICER OR ANY APPELLA TE AUTHORITY (SUCH CASE BEING HEREAFTER IN THIS SECTION REFERRED TO AS THE RELEVANT CASE) IS IDENTICAL WITH A QUESTION OF LAW ARISING IN HIS CAS E FOR ANOTHER ASSESSMENT YEAR WHICH IS PENDING BEFORE THE HIGH CO URT ON A REFERENCE UNDER SECTION 256 OR *BEFORE THE SUPREME COURT ON A REFERENCE UNDER SECTION 257 OR IN APPEAL UNDER SECTION 260A BEFORE THE HIGH COURT OR IN APPEAL UNDER SECTION 261 BEFORE THE SUPREME COURT ( SUCH CASE BEING HEREAFTER IN THIS SECTION REFERRED TO AS THE OTHER CASE) HE MAY FURNISH TO THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY A S THE CASE MAY BE A DECLARATION IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER THAT IF THE ASSESSING OFFICER OR THE APPELL ATE AUTHORITY AS THE CASE MAY BE AGREES TO APPLY IN THE RELEVANT CASE T HE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE HE SHALL NOT RAISE SUCH QUESTION OF LAW IN THE RELEVANT CASE IN APPEAL BEFORE ANY APPEL LATE AUTHORITY OR *IN APPEAL BEFORE THE HIGH COURT UNDER SECTION 260A OR IN APPEAL BEFORE THE SUPREME COURT UNDER SECTION 261. (2) WHERE A DECLARATION UNDER SUB-SECTION (1) IS FU RNISHED TO ANY APPELLATE AUTHORITY THE APPELLATE AUTHORITY SHALL CALL FOR A REPORT FROM THE ASSESSING OFFICER ON THE CORRECTNESS OF THE CLA IM MADE BY THE ASSESSEE AND WHERE THE ASSESSING OFFICER MAKES A R EQUEST TO THE APPELLATE AUTHORITY TO GIVE HIM AN OPPORTUNITY OF B EING HEARD IN THE MATTER THE APPELLATE AUTHORITY SHALL ALLOW HIM SUC H OPPORTUNITY. (3) THE ASSESSING OFFICER OR THE APPELLATE AUTHORIT Y AS THE CASE MAY BE MAY BY ORDER IN WRITING -- (I) ADMIT THE CLAIM OF THE ASSESSEE IF HE OR IT IS SATISFIED THAT THE QUESTION OF LAW ARISING IN THE RELEVANT CASE IS IDE NTICAL WITH THE QUESTION OF LAW IN THE OTHER CASE; OR (II) REJECT THE CLAIM IF HE OR IT IS NOT SO SATISF IED. (4) WHERE A CLAIM IS ADMITTED UNDER SUB-SECTION (3) -- (A) THE ASSESSING OFFICER OR AS THE CASE MAY BE THE APPELLATE AUTHORITY MAY MAKE AN ORDER DISPOSING OF THE RELEVA NT CASE WITHOUT AWAITING THE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE; AND ITA.NO.3822 AND 3823/AHD/2007 -4- (B) THE ASSESSEE SHALL NOT BE ENTITLED TO RAISE I N RELATION TO THE RELEVANT CASE SUCH QUESTION OF LAW IN APPEAL BEFOR E ANY APPELLATE AUTHORITY OR *IN APPEAL BEFORE THE HIGH COURT UNDER SECTION 260A OR THE SUPREME COURT UNDER SECTION 261. (5) WHEN THE DECISION ON THE QUESTION OF LAW IN THE OTHER CASE BECOMES FINAL IT SHALL BE APPLIED TO THE RELEVANT CASE AND THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY AS THE CASE MAY BE SHALL IF NECESSARY AMEND THE ORDER REFERRED TO IN CLAUSE (A) OF SUB-SECTION (4) CONFORMABLY TO SUCH DECISION. (6) AN ORDER UNDER SUB-SECTION (3) SHALL BE FINAL A ND SHALL NOT BE CALLED IN QUESTION IN ANY PROCEEDING BY WAY OF APPEAL REF ERENCE OR REVISION UNDER THIS ACT. HOWEVER IN THE ABSENCE OF SPECIFIC DETAILS AND COP Y OF THE APPLICATION HAVING NOT BEEN PLACED ON RECORD BY EITHER SIDE WE SET AS IDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO. WE DIRECT HIM TO PROCEED AS PER THE PROCEDURE LAID DOWN UNDER SECTION 158A. 9. THE GROUND NO.4 OF THE ASSESSEES APPEAL READS A S UNDER: THE LD.AO HAS ERRED IN LAW AND ON FACTS IN DISALLO WING RS.30 000/- OUT OF TELEPHONE EXPENSES. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE SAME. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THE ASSESSEE IS AN INDIVIDUAL AND UTILIZAT ION OF TELEPHONE FOR PERSONAL PURPOSE CANNOT BE RULED OUT. HOWEVER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ARGUMENTS OF BOTH THE SIDES DISALL OWANCE OF RS.30 000/- FOR PERSONAL USER OF TELEPHONE IS EXCESSIVE AND THE SAM E IS REDUCED TO RS.15 000/-. 11. IN THE RESULT THE ASSESSEES APPEALS ARE PARTL Y ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 23 RD APRIL 2010. SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT ITA.NO.3822 AND 3823/AHD/2007 -5- PLACE : AHMEDABAD DATE : 23-04-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER AR ITAT AHMEDABAD