Income Tax Appellate Tribunal - Delhi
Mil India Ltd.,, Delhi vs Pr.Cit, New Delhi on 16 March, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "F", NEW DELHI
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
AND
MS. SUCHITRA KAMBLE, JUDICIAL MEMBER
ITA No.2656/Del/2016
Assessment Year : 2012-13
MIL India Ltd., Pr.CIT, New Delhi.
Unit No.3F/307,
Mamran East Plaza, Plot No.C1&C2,
Vs.
LSC Block C Kondali, Gharoli,
Delhi.
PAN : AACCM4710E
(Appellant) (Respondent)
Assessee by : Shri Ajay Vohra, Sr.Adv.
Shri Gaurav Jain, Adv.
Ms. Manisha Sharma, Adv.
Department by : Smt. Rachna Singh, CIT(DR)
Date of hearing : 28-12-2017
Date of pronouncement : 16-03-2018
ORDER
PER R. K. PANDA, AM :
This appeal filed by the assessee is directed against the order dated 18.03.2016 passed u/s 263 of the I.T. Act, 1961 by the Pr.CIT, New Delhi relating to assessment year 2012-13.
2. The grounds raised by the assessee are as under :-
"1.1 The Learned Principal Commissioner of Income Tax 06 New Delhi (hereinafter referred to as 'Pr.CIT has erred both on the facts & circumstances and also in law in setting aside original order passed by then AO on 24.03.2014.2 ITA No.2656/Del/2016
1.2 The Learned Pr. CIT has erred on the facts and also in law in directing AO to restrict the deduction claimed to 30% instead of 100% as claimed by Appellant Company under section 80IC which duly allowed in original assessment. 2.1 The Learned CIT(A) has erred on facts & circumstances and also in law in disregarding judicial discipline by not following ruling pronounced by Hon'ble ITAT Delhi Benches in the case of Tirupati LPG Industries Ltd. vs. DCIT, Circle-2, Dehradun (ITA no.991/Del/2013) which is squarely covered. All the above grounds are without prejudice to each other. The appellant craves leave to add, amend, alter and vary all or any of the above grounds of appeal at any time or at the time of hearing."
3. Facts of the case, in brief, are that the assessee is a company engaged in the business of manufacturing and sale of engineering goods, professional services and trading. It filed its return of income on 28.11.2012 declaring income of Rs.1,77,34,550/-. The Assessing Officer completed the assessment u/s 143(3) on 24.03.2014 determining the total income at Rs.2,22,70,672/- by making following additions :-
a. Disallowance of post sale expenses claimed on Noida Unit - Rs.45,00,000/-.
b. Disallowance of post sale expenses claimed on Uttarakhand Unit - Rs.15,00,000/-.
c. Disallowance u/s 14A of the Act - Rs.36,122/-.
4. Subsequently, ld. Pr.CIT called for and examined record of the assessee for assessment year 2012-13 which revealed that the assessee is engaged in manufacturing and sale of engineering goods, professional services and trading activities. The assessee had claimed deduction u/s 80IC of Rs.7,57,548/- @ 100% of the profit and gains derived from its Uttarakhand Unit. During the 3 ITA No.2656/Del/2016 course of the scrutiny assessment, deduction of Rs.15,00,000/- was allowed @ 100% u/s 80IC on the income determined after making disallowance of Rs.60,36,122/-. A careful perusal of Auditor's Report in Form No.10CCB revealed that in this case, the first assessment year eligible for deduction u/s 80IC was assessment year 2007-08 and since then, the assessee had been claiming deduction u/s 80IC. As per report, the assessment year under consideration i.e. assessment year 2012-13 was the sixth consecutive year of the claim of deduction and the assessee had claimed deduction u/s 80IC @ 100% of the profit from the undertaking. According to ld. Pr.CIT, clause (ii) of section 80IC(3) stipulates deduction of 100% of the profit for 5 assessment years commencing with initial assessment year and thereafter 25% or 30% as the case may be in cases where undertaking is a company and located in the State of Uttarakhand. The claim of deduction @ 100% in six consecutive years in contravention to the provisions of clause (ii) of section 80IC(3) which was allowed by the Assessing Officer resulted in excess allowance of deduction amounting to Rs.10,50,000/- [Rs.15,00,000/- allowed by the Assessing Officer @ 100%, minus deduction of Rs.4,50,000/- @ 30% which was eligible as per the provisions of section 80IC(3)(ii)].
5. Since, the Assessing Officer had allowed excessive deduction u/s 80IC without applying provisions of section 80IC(3)(ii), the assessment order 4 ITA No.2656/Del/2016 allowing incorrect and excessive deduction u/s 80IC was held to be prime facie erroneous in law and also prejudicial to interest of the Revenue. Accordingly, he issued a show cause notice dated 07.03.2015 u/s 263 of the Act asking the assessee to explain why the same should not be revised since the Assessing Officer had incorrectly allowed excessive deduction @ 100% as against correct allowable deduction @ 30% in violation to clause (ii) of provisions of sub- section (3) of section 80IC r.w. sub clause (ii) of clause (a) of sub-section (ii) of section 80IC for which the assessment order was prima facie not only erroneous in law but also prejudicial to interest of the Revenue.
6. Rejecting the various explanations given by the assessee and observing that the order passed by the Assessing Officer is erroneous as well as prejudicial to the interest of the Revenue on account of allowing incorrect claim of deduction of 100% as against 30% as stipulated u/s 80IC(3)(ii) of the I.T. Act, the ld. Pr.CIT set-aside the assessment order passed u/s 143(3) for examination of issue of rate of deduction u/s 80IC on merit by keeping in view the provisions of section 80IC(2)(a)(ii), 80IC(6)(ii) and 80IC(8((v) and Circular No.7/2003 dated 05.09.2003.
7. Aggrieved with such order of the ld. Pr. CIT, the assessee is in appeal before the Tribunal.
5ITA No.2656/Del/2016
8. Ld. counsel for the assessee strongly objected to the order of the ld. Pr.CIT assuming jurisdiction u/s 263 of the I.T. Act. He submitted that as per clause (ii) of section 80IC, the assessee is entitled to deduction of 100% of the profit for five assessment years commencing with initial assessment year and, thereafter 25% or 30% as the case may be where the undertaking is a company and located in the State of Uttarakhand. He submitted that clause (v) and clause
(ix) define the term "initial assessment year" and the term "substantial expansion" used in section 80IC(2) of the Act. The harmonious construction of both the clauses provides that undertaking which had started claim of deduction u/s 80IC and subsequently carried out substantial expansion will have two initial assessment years i.e. one during the year in which the undertaking had started manufacturing and second during the year when the undertaking completed the substantial expansion. Since, in this case the assessee had started claiming deduction u/s 80C in the assessment years 2007-08 to 2011-12 @ 100% and after substantial expansion, by the undertaking in assessment year 2012-13, the assessee was again entitled to claim 100% deduction of its profit from the first year of substantial expansion i.e. assessment years 2012-13 to 2016-17, therefore, it is entitled to 100% deduction.
9. Referring to the decision of the Tribunal in the case of Tirupati LPG Industries Ltd. vs. DCIT in ITA No.991/Del/2013 order dated 29.01.2014 for 6 ITA No.2656/Del/2016 assessment year 2009-10 he submitted that the Tribunal has allowed such claim of deduction after substantial expansion. He submitted that since section 80IC is a beneficial legislation it should be liberally construed in favour of the assessee if two views are possible. Referring to the various decisions including decisions of the Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. reported in 243 ITR 83 (SC), decision in the case of CIT vs. Max India Ltd. reported in 295 ITR 282 (SC) and decision in the case of CIT vs. Kwality Steel Suppliers Complex reported in 395 ITR 1 (SC) he submitted that for the purpose of revision u/s 263 of the Income-tax Act the twin conditions namely (i) the order must be erroneous and (ii) the order must be prejudicial to the interest of the Revenue must be fulfilled. Referring to the decision of the Hon'ble Calcutta High Court in the case of Russell Properties (P.) Ltd. vs. ACIT reported in 109 ITR 229 and the decision of the Hon'ble Gujarat High Court in the case of Garden Silk Mills Ltd. vs. CIT reported in 221 ITR 861, he submitted that no revisions u/s 263 is possible where the order passed by the Assessing Officer is in accordance with law. He submitted that no revision u/s 263 is possible where the view expressed by the Assessing Officer was a possible view supported by the subsequent decision of a Court. For the above proposition, he relied on the decision of the Hon'ble Punjab & Haryana High Court in the case of CIT vs. Max India Ltd. reported in 268 ITR 128 which has been affirmed by the 7 ITA No.2656/Del/2016 Hon'ble Supreme Court in 295 ITR 282 and the decision of the Mumbai Bench of the Tribunal in the case of Amartara Plastics P. Ltd. vs. ACIT reported in 132 ITD 122.
10. Referring to the following decisions, he submitted that the deduction at the rate of 100% u/s 80IC is allowable post substantial expansion of business :-
a. Stovekraft India & Ors. vs. CIT in ITA No.20/2015 and others dated 28.11.2017.
b. Tirupati LPG Industries Ltd. vs. DCIT, 167 TTJ 713.
c. Sintex Industries Ltd. in ITA No.310/Ahd/2014.
d. Authority of Advance Ruling dated 28.11.2011 in the case of Abhishek Bhargav in AAR No.1097 of 2011.
11. He submitted that since the view of the Assessing Officer in allowing 100% deduction is in consonance with various judicial decisions, therefore, the order of the ld. Pr.CIT being not in accordance with law should be set-aside. Referring to the order of the ld. CIT(A) passed on 24.08.2015, he submitted that ld. CIT(A) has already decided the appeal in favour of the assessee and, therefore, ld. Pr.CIT is not justified in setting-aside the order on the issue of deduction u/s 80IC of the I.T. Act. He accordingly submitted that the order of the Pr.CIT be set-aside and the grounds raised by the assessee be allowed.
12. Ld. DR on the other hand strongly supported the order of the ld. Pr.CIT. She submitted that the order of the Assessing Officer is erroneous as well as 8 ITA No.2656/Del/2016 prejudicial to the interest of the Revenue, since there is no enquiry whatsoever by the Assessing Officer on the issue of deduction u/s 80IC. She submitted that the Circular No.7/2003, copy of which is placed at page 28 and 29 of the Paper Book and which is binding on the Assessing Officer has not at all been considered by the Assessing Officer. Referring to the decision of the Hon'ble Supreme Court in the case of CIT vs. Vadilal Lallubhai reported in 86 ITR 2, she submitted that the Hon'ble Supreme Court in the said decision has held that legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond their legitimate field.
13. Referring to the decision of the Hon'ble Supreme Court in the case of H.H. Lakshmi Bai vs. CIT reported in 206 ITR 688 she submitted that the Hon'ble Supreme Court in the said decision has held that it is settled law that taxation statute in particular has to be strictly construed and there is no equity in a taxing provision.
14. Referring to the decision of the Chandigarh Bench of the Tribunal in the case of Shri Manjit Singh Bhatia vs. ITO in ITA No.185/2016 order dated 26.05.2016, she submitted that the Tribunal in the said decision has held that despite substantial expansion there cannot be two initial assessment years and the assessee is not entitled to claim deduction at the rate of 100% for the 9 ITA No.2656/Del/2016 impugned assessment year after the substantial expansion. She accordingly submitted that the order of the ld. Pr.CIT being in accordance with law, the grounds raised by the assessee should be dismissed.
15. We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the only dispute in the impugned appeal is regarding the validity of the assumption of jurisdiction by the Pr.CIT u/s 263 on account of allowing the claim of deduction u/s 80IC at the rate of 100% by the Assessing Officer as against 30% u/s 80IC. A perusal of the assessment order reveals that there is no discussion whatsoever on the issue of allowability of deduction u/s 80IC at the rate of 100% for the impugned assessment year which is the sixth assessment year. As mentioned earlier, the assessee was claiming deduction 80IC at the rate of 100% of the profit and gains u/s 80IC from assessment years 2007-08 to 2011-12. During the year assessee had undertaken substantial expansion and has claimed 100% deduction u/s 80IC as against 30% as per the statute as per the ld. Pr.CIT. As mentioned earlier neither the assessee has justified the claim of such 100% deduction in any written submission before the Assessing Officer nor did the Assessing Officer call for any explanation from the assessee on account of the same. There is absolutely no application of mind by the 10 ITA No.2656/Del/2016 Assessing Officer on this issue. In other words no view has been expressed by the Assessing Officer on this issue so as to hold that he has taken a possible view on this issue. It is the settled proposition of law that for assuming jurisdiction under the provisions of section 263 the twin conditions namely (a) the order is erroneous and (b) the order is prejudicial to the interest of the Revenue must be fulfilled. Since in the instant case the Assessing Officer without making any enquiry or examining the issue at hand has mechanically accepted the claim of 100% deduction u/s 80IC after substantial expansion took place, therefore the order, in our opinion has become erroneous as well as prejudicial to the interest of the Revenue. Therefore, the ld. Pr.CIT, in our opinion, has rightly assumed jurisdiction u/s 263 of the I.T. Act. The various decisions relied on by the ld. counsel for the assessee are not applicable to the facts of the present case and are distinguishable. The various decisions relied on by the ld. counsel for the assessee are based on the peculiar facts and circumstances of each case. For the sake of repetition, we reiterate that the Assessing Officer in the instant case has not at all applied his mind nor did raise any query and has mechanically allowed the claim of deduction u/s 80IC without examining the allowability or otherwise of the same. The CBDT Circular which is binding on the Assessing Officer has been overlooked and not at all considered. Under these circumstances and in view of our above 11 ITA No.2656/Del/2016 discussion, the ld. Pr. CIT has validly assumed jurisdiction u/s 263 of the I.T. Act. We, therefore, uphold the order of the ld. Pr. CIT in assuming jurisdiction u/s 263 of the I.T. Act. The grounds raised by the assessee are accordingly dismissed.
16. In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open Court on this 16th March, 2018.
Sd/- Sd/-
(SUCHITRA KAMBLE) (R. K. PANDA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 16-03-2018.
Sujeet
Copy of order to: -
1) The Appellant
2) The Respondent
3) The Pr.CIT
4) The DR, I.T.A.T., New Delhi
By Order
//True Copy//
Assistant Registrar
ITAT, New Delhi