ACIT 20(1), MUMBAI v. J.P. KHANDELWAL, MUMBAI

ITA 4763/MUM/2010 | 2007-2008
Pronouncement Date: 21-09-2011 | Result: Dismissed

Appeal Details

RSA Number 476319914 RSA 2010
Assessee PAN AABPK1144L
Bench Mumbai
Appeal Number ITA 4763/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 11 day(s)
Appellant ACIT 20(1), MUMBAI
Respondent J.P. KHANDELWAL, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 21-09-2011
Date Of Final Hearing 15-09-2011
Next Hearing Date 15-09-2011
Assessment Year 2007-2008
Appeal Filed On 09-06-2010
Judgment Text
1 ITA NO.4763/MUM/2010 (ASST YEAR 2007-08) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI J SUDHAKAR REDDY AM & SHRI VIJAY PAL RAO JM ITA NO.4763/MUM/2010 (ASST YEAR 2007-08) THE ASST COMMR OF INCOME TAX 20(1) MUMBAI VS MS J P KHANDELWAL (PROF M/S AMRIT IMPEX) 13 KONARK EMPRESS DR E MOSES ROAD WORLI MUMBAI 18 (APPELLANT) (RESPONDENT) PAN NO. AABPK 1144 L ASSESSEE BY SH RAHUL LATHI REVENUE BY SH SANJIV DUTT DT.OF HEARING 15 TH SEPT 2011 DT OF PRONOUNCEMENT 21 ST SEPT 2011 PER VIJAY PAL RAO JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 18.3.2010 OF THE CIT(A) FOR THE ASSESSMENT YEAR 200 7-08. 2 THE REVENUE HAS RAISED VARIOUS ROUNDS IN THIS APP EAL; HOWEVER THE ONLY ISSUE ARISEN FOR OUR CONSIDERATION AND ADJUDICATION IS WH ETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) IS JUSTIFIED IN ALLOWING THE CLAIM U/S 10B OF THE I T ACT. 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CONSIDERED THE RELEVANT RECORDS. AT THE OUTSET WE FIND THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE TRIBU NAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2002-03 TO 2004-05 AS MENTIONED IN PARA 2.3 OF THE IMPUGNED ORDER AS UNDER: 2 ITA NO.4763/MUM/2010 (ASST YEAR 2007-08) I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUBM ISSIONS OF THE AR AS DISCUSSED ABOVE. FROM THE FACTS BROUGHT ON RECORD AS DISCUSSED ABOVE I FIND THAT THIS ISSUE IS DECIDED BY THE HONBLE ITAT IN I TA NOS 4975/MUM/2007 FOR ASSESSMENT YEAR 2002-03 AND ITA NO.4976/MUM/2007 FOR ASSESSMENT YEAR 2004-05 DATED 10.12.2009 AND IN ITA NO.6102/MUM/200 6 FOR THE ASSESSMENT YEAR 2003-04 DATED 16.12.2008. THE RELEVANT FINDING S OF THE HONBLE ITAT GIVEN AS PER PARAS 10 & 11 OF ITS ORDER DATED 10.12.2009 RE ADS AS UNDER: .............................. 3.1 WE FURTHER NOTE THAT THE TRIBUNAL FOR THE ASSES SMENT YEAR 2006-07 IN ITA NO.5046/MUM/2009 VIDE ORDER DATED 30.11.2010 HAS AL SO DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE EARLIER ORDER OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR AYS 2002-03 04-5 AND 2005-06 IN PARA 6 AS UNDE R: 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVEPERUSED THE RECORDS OF THE CASE. WE FIND THAT IN THE ASSESSMENT YEAR 2003-04 THEASSESSEES CLAIM UNDER SECTION 10B WAS DISPUTED ON THE GROUND THAT T HE ASSESSEE WAS NOT CARRYING ON ANY MANUFACTURING ACTIVITY AND ON THAT COUNT THE AS SESSEES CLAIM WAS DENIED. IN THE PRESENT ASSESSMENT YEAR THE ASSESSEES CLAIM HAS B EEN DENIED ON THE SAME COUNTS FOR WHICH IT WAS DENIED FOR THE ASSESSMENT YEARS 20 02- 03 AND 2004-05. THE TRIBUNAL ALLOWED THE ASSESSEES CLAIM BY OBSERVING IN PARA 1 0 & 11 OF THE TRIBUNAL ORDER DATED 10.12.2009 AS UNDER: 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE C ONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING OTHER MATE RIALS ON RECORD WE FIND THAT THERE IS NO SUBSTANCE IN THE APPEALS OF THE DEPARTM ENT. WE NOTE THAT THE AO FIRSTLY HELD THAT DEDUCTION U/S.10B IS NOT ALLOWABLE. THERE AFTER WITHOUT PREJUDICE THE AO HELD THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTIO N ON CUT AND POLISHED DIAMONDS AND THEREAFTER WITHOUT PREJUDICE THE AO HELD THAT T HE ASSESSEE IS NOT ENTITLED FOR DEDUCTION ON STUDDED JEWELLERY WITH GOLD. WE NOTICE THAT THE CIT(A) HAS DECIDED THE ISSUE THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U /S.10B ONLY BECAUSE OF THE REASON THAT BEFORE THE CIT(A) THE ASSESSEE HAS RAISED A GR OUND THAT THE AO WAS NOT JUSTIFIED IN NOT ALLOWING DEDUCTION U/S.10B. ALTERNATE FINDIN GS OF THE AO IN RESPECT OF CUT AND POLISHED DIAMOND JEWELLERY AND STUDDED JEWELLERY WI TH GOLD WERE NOT CHALLENGED BEFORE THE CIT(A) BY THE ASSESSEE. REGARDING THE IS SUE IN RESPECT OF DEDUCTION ALLOWABLE U/S.10B IT HAS ALREADY BEEN DECIDED BY T HE TRIBUNAL WHILE DECIDING THE APPEAL FOR THE ASST. YEAR 2003-04 IN ITA NO. 6102/ M/06 AND C.O. NO. 92/M.07 VIDE ORDER DATED 16.12.2008. COPY OF THE ORDER OF THE TR IBUNAL IS PLACED AT PAGES 57 TO 66 OF THE PAPER BOOK FILED BY THE ASSESSEE. THEREFORE WE HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.10B. FOR THE SAKE OF CLA RIFICATION WE MAY MENTION THAT NEITHER THE ISSUE IN RESPECT OF CUT AND POLISHED DI AMOND JEWELLERY WAS DECIDED BY THE CIT(A) NOR ANY GROUND HAS BEEN TAKEN BEFORE THE TRIBUNAL BY THE DEPARTMENT. THEREFORE THE CONTENTIONS OF THE LD.D.R. THAT THE DEDUCTION IS NOT ALLOWABLE ON CUT AND POLISHED DIAMOND JEWELLERY ARE NOT LIABLE TO BE CONSIDERED. THEREFORE THE SAME ARE NOT CONSIDERED. 11. REGARDING ALLOWABILITY OF DEDUCTIONU/S.10B WE HAVE ALREADY STATED ABOVE THAT THE TRIBUNAL HAS ALREADY HELD THAT DEDUCTION U/S.10 B IS ALLOWABLE TO THE ASSESSEE. MOREOVER THE DETAILED REASONING GIVEN BY THE LD. C IT(A) COULD NOT BE CONTROVERTED 3 ITA NO.4763/MUM/2010 (ASST YEAR 2007-08) BY THE LD. D.R. THEREFORE WE HOLD THAT THERE IS NO INFIRMITY IN THE FINDING OF CIT(A) IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.10B. ACCORDINGLY THE GROUNDS OF THE DEPARTMENT IN ALL ITS APPEALS ARE DISMISSED. 7. THUS DEDUCTION U/S.10B HAS BEEN ALLOWED TO THE ASSESSEE IN EARLIER YEARS. UNDER SUCH CIRCUMSTANCES VARIOUS OBJECTIONS RAISED BY THE ASSESSING OFFICER AS NOTED ABOVE DO NOT SURVIVE. RESPECTFULLY FOLLOWING THE ABOVE DECISION WE UPHOLD THE ORDER OF THE CIT(A). 4 SINCE THE FACTS AND THE ISSUE ARE IDENTICAL IN TH E YEAR UNDER CONSIDERATION THAT OF THE EARLIER YEAR AND THE CIT(A) HAS FOLLOWE D THE ORDER OF THE TRIBUNAL HENCE WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE CIT(A). THEREFORE FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL WE DECIDE THIS I SSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 5 IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON THE 21 ST DAY OF SEPT 2011. SD/- SD/- ( J SUDHAKAR REDDY ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:21 ST SEPT 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI