The Dy. Commissioner of Income Tax 1(1), Indore v. M/s. Ives Drugs (India) Pvt. Ltd., Indore

ITA 452/IND/2010 | 2002-2003
Pronouncement Date: 07-07-2011 | Result: Allowed

Appeal Details

RSA Number 45222714 RSA 2010
Assessee PAN AAACI3931R
Bench Indore
Appeal Number ITA 452/IND/2010
Duration Of Justice 11 month(s) 29 day(s)
Appellant The Dy. Commissioner of Income Tax 1(1), Indore
Respondent M/s. Ives Drugs (India) Pvt. Ltd., Indore
Appeal Type Income Tax Appeal
Pronouncement Date 07-07-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 07-07-2011
Assessment Year 2002-2003
Appeal Filed On 09-07-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NOS.451 TO 453/IND/2010 AYS: 2001-02 TO 2003-04 DCIT-1(1) INDORE ..APPELLANT V/S. M/S. IVES DRUGS (INDIA) P. LTD. INDORE PAN AAACI 3931 R ..RESPONDENT DEPARTMENT BY : SHRI ARUN DEWAN SR. DR ASSESSEE BY : WRITTEN SUBMISSION (NONE) ORDER PER JOGINDER SINGH THESE APPEALS ARE BY THE REVENUE AGAINST THE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I INDORE DATED 18.3.2010 ON THE GR OUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETING THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IA OF THE A CT BY MERELY PLACING RELIANCE UPON THE EARLIER ORDER FOR 2 ASSESSMENT YEAR 2004-05 WHEREIN THE FACTS ARE ENTIR ELY DIFFERENT THEREFORE NOT APPLICABLE TO THE IMPUGNE D ASSESSMENT YEARS IGNORING THE FACT THAT THE ASSESSE E FAILED TO FULFIL THE CONDITIONS AS LAID DOWN IN SEC . 80IA(7) WHICH REQUIRES THE ASSESSEE TO GET ITS ACCOUNT AUDI TED AND TO FURNISH AUDIT REPORT IN FORM NO. 10CCB. 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD T HE LD. SR. DR AND CONSIDERED THE WRITTEN SUBMISSION FI LED BY THE ASSESSEE. HOWEVER NOBODY IS PRESENT FOR THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IDENTICAL TO THE GROUND RAISED. THE ASSE SSEE IN ITS WRITTEN SUBMISSION HAS CONTENDED THAT THE RE TURN OF INCOME WERE PROCESSED U/S 143(1) OF THE ACT BY ACCEPTING THE RETURNED INCOME. A PLEA WAS RAISED TH AT IN VIEW OF THE DECISION FROM HONBLE DELHI HIGH COURT IN CIT VS. CONTIMETERS ELECTRICAL P. LTD. (ITA NO.1366 OF 2008) WHEREIN IT WAS HELD THAT SUB-SEC. (7) OF SEC. 80IA IS NOT MANDATORY BUT IS OF DIRECTIVE IN NATURE. 3 3 ON PERUSAL OF RECORD CONSIDERATION OF WRITTEN SUBMISSION FILED BY THE ASSESSEE AND THE SUBMISSION S OF LD. DR THERE IS CATEGORICAL FINDING IN THE ASSESSM ENT ORDER WHICH IS REPRODUCED HEREUNDER: ...... NO SUCH REPORT HAS BEEN ANNEXED WITH THE RETURN. OBLIVIOUSLY THE AUDIT AS REQUIRED HAS NOT BEEN CARRIED OUT AND NO REPORT OF AUDIT HAS BEEN OBTAINED BY THE ASSESSEE. MERE CLAIM OF DEDUCTION IN THE COMPUTATION OF INCOME DOES NOT CONFER THE RIGHT TO THE ASSESSEE TO AVAIL THE DEDUCTION U/S 80IA. 4. IN THE AFORESAID OBSERVATION OF THE LD. ASSESSIN G OFFICER IT IS ABSOLUTELY CLEAR THAT THE ASSESSEE D ID NOT OBTAIN THE AUDIT REPORT AND MERELY CLAIMED FOR DEDU CTION U/S 80IA OF THE ACT WHEREAS THE LD. CIT(A) BY FOLL OWING THE APPELLATE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR ASSESSMENT YEAR 2004-05 ACCEPTED THE CLAIM OF THE ASSESSEE AND IS SILENT ON THE NON-FILING OF AUDIT REPORT AS REQUIRED IN FORM NO. 10CCB. HOWEVER NOWHERE IN THE APPELLATE ORDER OF LEARNED 4 COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEAR 2004-05 THE CLAIM OF THE ASSESSEE U/S 80IA WAS ACCEPTED FOR NON-FILING OF AUDIT REPORT IN FORM NO. 10CCB. ENTIRELY OTHER ISSUE WAS BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN THE ASSESSM ENT YEAR 2004-05. IN VIEW OF THESE FACTS THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE AYS 2001-02 TO 2003-04 IS DE-VOID OF ANY MERIT. W E ARE OF THE VIEW THAT OBTAINING THE AUDIT REPORT ON FORM NO. 10CCB IS A MANDATORY REQUIREMENT FOR CLAIMING THE DEDUCTION U/S 80IA OF THE ACT. THE ORIGINAL RETURN WAS PROCESSED U/S 143(1) AND LATER ON THE CASE WAS REOP ENED U/S 147/148 OF THE I.T. ACT IN RESPONSE TO WHICH THE ASSESSEE VIDE LETTER DATED 24.4.2008 MERELY STATED THAT THE RETURN ORIGINALLY FILED MAY BE TREATED IN RESPO NSE TO THE SAID NOTICE. BEFORE US ALSO INSPITE OF NOTICES ISSUED TO THE ASSESSEE THE ASSESSEE PREFERRED NOT TO APPE AR AND MERELY FILED THE WRITTEN SUBMISSION. AS PER SUB-SEC . (7) OF SEC. 80IA FOR CLAIMING THE DEDUCTION UNDER SUB-SEC. (1) 5 FROM THE PROFIT AND GAINS DERIVED FROM AN UNDERTAKI NG THE ACCOUNTS HAVE TO BE AUDITED BY AN ACCOUNTANT AS DEFINED IN EXPLANATION BELOW SUB-SEC. (2) OF SEC. 2 88 AND THE SAME HAS TO BE FURNISHED ALONG WITH THE RETURN OF INCOME IN THE PRESCRIBED FORM AND DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT (AS PER EXPLANATION IN THE SEC. THE ACCOUNTANT MEANS A CHARTERED ACCOUNTANT WITHIN THE MEANING OF CHARTERED ACCOUNTANT ACT 19 49 AND INCLUDES IN RELATION TO ANY STATE ANY PERSON WHO BY VIRTUE OF PROVISIONS OF SUB-SEC. (2) OF SEC. 226 OF THE COMPANIES ACT 1956 ENTITLED TO THE APPOINTED TO A CT AS AN AUDITOR OF THE COMPANIES REGISTERED IN THAT STAT E). IN VIEW OF THESE FACTS AND LEGAL REQUIREMENT THE ORDE R OF THE LD. CIT(A) IS SET ASIDE BUT TO BE FAIR TO BOTH SIDE S THESE APPEALS ARE AGAIN REMANDED BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDA NCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO FILE TH E AUDIT REPORT IN PRESCRIBED FORMAT TO SUBSTANTIATE THE CLA IM U/S 80IA WHICH IS A MANDATORY REQUIREMENT FOR CLAIMING 6 DEDUCTIONS IN RESPECT OF ITS INDUSTRIAL UNDERTAKING . THEREFORE THESE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. FINALLY THE APPEALS OF THE REVENUE ARE ALLOWED FO R STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED LD. SR. DR AT THE CONCLUSION OF THE HEARING ON 7 TH JULY 2011. (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH JULY 2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE !VYS! 7