The ACIT, Vapi Circle, Vapi v. M/s. Bilag Industries Pvt.Ltd.,, Vapi

ITA 700/AHD/2009 | 2000-2001
Pronouncement Date: 29-07-2011 | Result: Dismissed

Appeal Details

RSA Number 70020514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 700/AHD/2009
Duration Of Justice 2 year(s) 4 month(s) 26 day(s)
Appellant The ACIT, Vapi Circle, Vapi
Respondent M/s. Bilag Industries Pvt.Ltd.,, Vapi
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 29-07-2011
Date Of Final Hearing 05-07-2011
Next Hearing Date 05-07-2011
Assessment Year 2000-2001
Appeal Filed On 04-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI D.K. TYAGI HONBLE JUDICIAL MEMBER AND SHRI A.K.GARODIA HONBLE ACCOUNTANT MEMBER ITA NO.700-701/AHD/2009 ASSESSMENT YEARS:2000-01 & 2001-02 DATE OF HEARING:5.7..11 DRAFTED:19.7.11 ASSTT. COMMISSIONER OF INCOME-TAX VAPI CIRCLE VAPI V/S. BILAG INDUSTRIES PVT. LTD. PLOT NO.306/3 IIND PHASE GIDC VAPI PAN NO.AABCB2100L (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI M.K. PATEL AR REVENUE BY:- SHRI B.L. YADAV SR-DR O R D E R PER D.K. TYAGI JUDICIAL MEMBER:- THESE TWO APPEALS BY THE REVENUE AGAINST THE SEPAR ATE ORDERS OF COMMISSIONER OF INCOME-TAX(APPEALS)-VALSAD DATED 15 -12-2008 FOR THE ASSESSMENT YEARS 2000-01 & 2001-02. THE REVENUE IN BOTH APPEALS HAS TAKEN COMMON GROUNDS SINCE IN BOTH THE APPEALS ISS UE INVOLVED IS SAME WE ARE DECIDING BY PASSING A CONSOLIDATED ORDER BY TAK ING THE FACTS FOR ASSESSMENT ORDER 2000-01. 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN ANNULLING THE ASSESSMEN T MADE U?S.143(3) R.W. SECTION 147 OF THE ACT DATED 30.11.2007. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) HAS ERRED IN GRANTING RELIEF TO ASSE SSEE WITHOUT CONSIDERING THE FACTS BROUGHT IN BY THE ASSESSING O FFICER AND DECISIONS RELIED ON IN SUPPORT OF RE-OPENING THE ASSESSMENT I N ITS ENTIRETY. ITA NO.700-701/AHD/2009 A.Y.S 2000-01 & 2001-02 ACIT VAPI CIR V. BILAG INDS. P. LTD. PAGE 2 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE-CO MPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2000-01 ON 28-11-200 0 DECLARING AN INCOME OF RS.4 55 807/-. THE SAME WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT 1961 ON 23.03.2001. THE ASSESSMENT U/S.143(3) OF TH E ACT WAS COMPLETED ON 28-11-2002 DETERMINING THE INCOME AT RS.43 55 70 06 4/- AFTER GRANTING DEDUCTION U/S.80HHC OF THE ACT OF RS.92 16 61 355/- . ON ACCOUNT OF APPEAL EFFECT OF LD. CIT(APPEALS)S ORDER THE INCOME WAS R EVISED TO RS.4 55 865/- UNDER NORMAL PROVISIONS AND RS.9 51 01 756/- UNDER SPECIAL PROVISIONS OF SECTION 115JA OF THE ACT WHILE GIVING EFFECT TO LD. CIT(APPEALS)S ORDER DEDUCTION U/S. 80HHC OF RS.1 02 58 47 924/- AND U/S 80IA OF RS.32 53 32 840/- WERE ALLOWED. 3. SUBSEQUENTLY ON PERUSAL OF THE COMPUTATION OF T OTAL INCOME AND ANNEXURE THERETO ASSESSING OFFICER FOUND THAT ASSES SEE HAD CLAIMED DEDUCTION U/S.80IB AND 80HHC SIMULTANEOUSLY ON THE GROSS TOTAL INCOME. THE PROVISIONS OF SECTION 80IA(9) R.W.S. 80IB(13) PROVI DE THAT WHERE ANY AMOUNT OF PROFITS AND GAINS FOR AN UNDERTAKING IS CLAIMED AND ALLOWED UNDER THIS SECTION FOR ANY ASSESSMENT ORDER THE DEDUCTION TO THE EXTE NT OF SUCH PROFITS AND GAINS SHALL NOT BE ALLOWED UNDER ANY PROVISIONS OF THIS CHAPTER UNDER THE HEADING C-DEDUCTIONS IN RESPECT OF CERTAIN INCOME . ACCORDINGLY THE DEDUCTION U/S. 80IB AND 80HHC SHOULD BE GRANTED TO THE ASSESSEE AS PER THE SAID PROVISIONS OF SECTION 80IB(9) R.W.S 80IB(13) O F THE ACT. BASED ON THESE FACTS CASE WAS REOPENED BY ASSESSING OFFICER U/S.14 7 AFTER RECORDING THE REASONS FOR DOING SO. ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 ON 30- 11-2007 DETERMINING THE TOTAL INCOME AT RS.24 16 60 630/-. 4. BEFORE LD. CIT(APPEALS) THE ASSESSEE-COMPANY CHA LLENGED THE ASSESSING OFFICERS ACTION IN REOPENING ASSESSMENT AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT ORDER. THE ASSESSEE-COMPANYS WRITTEN SUBMISSION BEFORE LD. CIT(APPEALS) WERE SEN T BY HIM TO THE ASSESSING OFFICER TO SUBMIT HIS REMAND REPORT AND AFTER OBTAI NING THE REMAND REPORT THE ITA NO.700-701/AHD/2009 A.Y.S 2000-01 & 2001-02 ACIT VAPI CIR V. BILAG INDS. P. LTD. PAGE 3 ASSESSEES COMMENTS WERE TAKEN AND AFTER DOING ALL THIS EXERCISE THE LD. CIT(APPEALS) OBSERVED THAT THE ASSESSMENT HAS BEEN REOPENED IN THIS CASE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELE VANT ASSESSMENT YEAR. TAKING INTO CONSIDERATION THE PROVISO TO SECTION 14 7 OF THE ACT THE LD. CIT(APPEALS) WAS OF THE VIEW THAT IN THE INSTANT CA SE THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE-COMPANY TO MAKE RETURN UND ER PROVISIONS OF INCOME- TAX ACT AND FURTHER ALL THE MATERIAL FACTS RELATING TO DEDUCTION CLAIMED BY THE ASSESSEE WERE FULLY AND TRULY DISCLOSED BY THE ASSE SSEE-COMPANY. IT WAS HELD BY LD. CIT(APPEALS) THAT SINCE THE DEDUCTION U/S 80 IA AND 80HHC OF THE ACT CLAIMED BY THE ASSESSEE-COMPANY WERE DULY DELIBERAT ED UPON AND ALLOWED IN THE ORIGINAL SSESSMENT ORDER REOPENING U/S.147 CANN OT BE DONE AS PER THE PROVISO TO SECTION AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. HE THEREFORE HELD THAT REOPENING OF ASSESSMENT IN THIS CASE WAS BAD IN LAW AND THE RE-ASSESSMENT PROCEEDIN GS WERE NOT IN CONFORMITY WITH THE PROVISIONS OF THIS SECTION. 5. AGGRIEVED BY THIS ORDER OF LD. CIT(APPEALS) NOW THE REVENUE IS IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING LD. DR VEHEMENTLY SUPPORT ED THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE ASSESSMENT BY IS SUING NOTICE U/S.147 R.W.S 148 OF THE ACT AND HE ALSO PLACED RELIANCE ON THE F OLLOWING CASE LAWS OF HONBLE SUPREME COURT:- ACIT V. RAJESH JHAVERI STOCK BROKERS PVT. LTD. 291 ITR 500 (SC) RAYMAOND WOOLEN MILLS LTD. V. ITO 236 ITR 34-35 (S C) 7. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHE R HAND RELIED ON THE ORDER OF LD. CIT(APPEALS) AND HE REITERATED THE SAM E SUBMISSION AS MADE BEFORE HIM. HE FURTHER ARGUED THAT CASE LAW CITED B Y THE LD. DR ARE NOT RELEVANT TO THE FACTS OF THE CASE AS IN ALL THESE C ASES THE ASSESSMENT WERE NOT REOPENED AFTER THE EXPIRY OF FOUR YEARS FROM THE EN D OF THE ASSESSMENT YEAR. HE FURTHER SUBMITTED THAT ALL THE MATERIALS FACT RE GARDING DEDUCTION U/S. 80IA ITA NO.700-701/AHD/2009 A.Y.S 2000-01 & 2001-02 ACIT VAPI CIR V. BILAG INDS. P. LTD. PAGE 4 AND 80HHC WERE FULLY AND TRULY DISCLOSED BY THE ASS ESSEE-COMPANY AND IN ORIGINAL ASSESSMENT ORDER PASSED BY ASSESSING OFFIC ER U/S.143(3) THAT CLAIM OF THE ASSESSEE U/S.80IA AND 80HHC WERE DULY DELIBE RATED UPON AND ALLOWED. THEREFORE THE REOPENING U/S 147 CANNOT BE DONE AS P ER THE PROVISO TO THE SECTION 147 AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. FOR MAKING THIS SUBMISSION HE PLACED RELIANC E ON TWO DECISIONS OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF NIKHIL K KOTAK V. MAHESH KUMAR ASSESSING OFFICER (2008) 10 DTR 20 (GUJ) AND IN THE CASE OF AUSTIN ENGINEERING CO. LTD. V. JCIT (2008) 9 DTR 268 (GUJ). CONCLUDING HIS ARGUMENT HE THEREFORE PRAYED THAT ORDER PASSED BY L D. CIT(APPEALS) MAY KINDLY BE UPHELD. 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSMENT HAS BEEN REOPENED IN THIS CASE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSME NT YEAR. IT IS ALSO NOT IN DISPUTE THAT MATERIAL FACT REGARDING DEDUCTION U/S. 80IA AND 80HHC WERE FULLY AND TRULY DISCLOSED BY THE ASSESSEE ALONG WITH RETU RN OF INCOME. THE PROVISO TO SECTION 147 OF THE ACT RELATING TO INCOME ESCAPI NG ASSESSMENT READS AS UNDER:- PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT ORDER NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER T HE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT ORDER UNLE SS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT ORDER BY REASON OF THE FAILURE ON THE PART OF THE ASSESSE E TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESS MENT ORDER. IN THE INSTANT CASE WE FIND THAT THERE IS NO FAILUR E ON THE PART OF THE ASSESSEE- COMPANY TO MAKE A RETURN UNDER THE PROVISIONS OF IN COME-TAX ACT. THE ASSESSEE HAS FILED RETURN OF INCOME U/S.139 OF THE ACT IN WHICH ALL MATERIAL FACTS RELATING TO DEDUCTION CLAIMED BY THE ASSESSEE -COMPANY WERE FULLY AND TRULY DISCLOSED. IT IS CLEAR FROM THE ORIGINAL ASSE SSMENT ORDER PASSED BY ITA NO.700-701/AHD/2009 A.Y.S 2000-01 & 2001-02 ACIT VAPI CIR V. BILAG INDS. P. LTD. PAGE 5 ASSESSING OFFICER U/S.143(3) OF THE ACT THAT DEDUCT ION U/S.80IB AND 80HHC OF THE ACT CLAIMED BY THE ASSESSEE-COMPANY WAS DULY DE LIBERATED UPON BY AO AND WAS ALLOWED. IN THE LIGHT OF THESE UNDISPUTED F ACTS OF THIS CASE WE ARE OF THE CONSIDERED OPINION THAT REOPENING U/S.147 CANNO T BE DONE IN VIEW OF THE PROVISO TO THE SECTION AFTER THE EXPIRY OF FOUR YEA RS FROM THE END OF RELEVANT ASSESSMENT YEAR AS THERE IS NO OMISSION OR FAILURE ON THE PART OF ASSESSEE- COMPANY IN PUTTING FOURTH ITS CLAIM IN ITS ENTERITY BEFORE THE AO. THIS VIEW OF OURS GET SUPPORT FROM THE CASE LAWS OF THE JURISDIC TIONAL HIGH COURT RELIED BY THE ASSESSEE. THEREFORE THE ACTION OF THE AO IN REO PENING THE ASSESSMENT OF THE ASSESSEE-COMPANY IS NOT SUSTAINABLE IN LAW AND LD. CIT(APPEALS) HAS RIGHTLY ANNULLED THE RE-ASSESSMENT PROCEEDINGS CARR IED OUT BY THE ASSESSING OFFICER. THE ORDERS PASSED BY LD. CIT(APPEALS) FOR BOTH THE YEARS ARE HEREBY UPHELD. 9. IN THE RESULT BOTH THE APPEALS OF REVENUE ARE DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON 29/07/2011 SD/- SD/- (A.K.GARODIA) (D.K. TYAGI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD DATED : 29/07/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-VALSAD 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD