Income Tax Appellate Tribunal - Ahmedabad
Banaskantha Dist. Co.Op. Milk ... vs Department Of Income Tax on 31 October, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
AT AHMEDABAD "A" BENCH
Before: Shri A. K. Garodia, Accountant Member and
Shri Kul Bharat, Judicial Member
I.T.A. No 2047/Ahd/2010
A.Y.:-2007-08
The ACIT, B.K. Circle, The Banaskantha Dist. Co. Op
Palanpur Milk Producers Union Ltd.
(Appellant) Vs. Palanpur.
(Respondent)
PAN NO.AAAAB0575E
Revenue by : Sri A. Tirkey, Sr. D.R.
Assessee by : Sri Sulabh Padshah, A.R.
Date of hearing : 31-10-2012
Date of pronouncement : 09-11-2012
आदे श/ORDER
PER : KUL BHARAT, JUDICIAL MEMBER:-
This appeal of the Revenue is directed against the order Ld. Commissioner of Income Tax (Appeals)-XV Ahmedabad, dated 13th April 2010. The Revenue has raised following grounds of appeal:-
ITA No. 2047/Ahd/2010 A.Y. 2007-08 Page No. 2The ACIT vs. The Banaskantha Dist. Co-op. Milk "1. The Ld. Commissioner of Income-tax(A)-XV, Ahmedabad has erred in law and on facts in allowing deduction of Rs.
7124640/- u/s 80IB of the Act in respect of Banas-II plant.
2. On the facts and in the circumstances of the case, the ld.
Commissioner of Income-tax (A)-XV, Ahmedabad ought to have upheld the order of the Assessing Officer.
3. It is, therefore, prayed that the order of the ld. Commissioner of Income-tax(A)-XV, Ahmedabad may be set-aside and that of the Assessing Officer be restored."
2. The facts in brief are that the case of the assessee for assessment year 2007-08 was selected for scrutiny assessment and the assessment u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was framed whereby the claim of the assessee u/s 80IB was rejected and the same was added back to the income of the assessee. Against this order, the assessee preferred an appeal before the CIT(A) who after considering the submissions of the assessee and relying on the decision of the Hon'ble Co-ordinate Bench of this Tribunal in the assessee's own case in ITA No. 1362/Ahd/2009 allowed the claim of the assessee. Against this order, the Revenue is before us.
3. Ld. Sr. D.R. Sri, A Tirkey, strongly placed reliance on the assessment order. On the contrary, learned counsel for the assessee pointed out that the issue is squarely covered by the decision of Hon'ble Co-ordinate Bench rendered in assessee's own case in ITA No. 1362/Ahd/2009.
4. We have heard the rival submissions perused the material available on record and the judgment cited. We find that the Hon'ble Co-ordinate Bench in ITA No. 1362/Ahd/2009 pertaining to A.Y. 2006-07 in assessee's own case has decided the issue in controversy as under:
ITA No. 2047/Ahd/2010 A.Y. 2007-08 Page No. 3The ACIT vs. The Banaskantha Dist. Co-op. Milk "Learned Authorized Representative of the Assesses filed a copy of the order of the Tribunal passed in assessee's own case for Assessment Year 2004-05 in ITA Nos 1163 and 1188/Ahd/2008, order dated 7-11-2003 and submitted that the appeal of the Revenue was dismissed and the order of the Learned Commissioner of Income-tax (Appeals) was confirmed by the Tribunal allowing deduction u/s 80IB by observing as under:-
"11 After considering the rival submissions, we find that the assessee is stated to have satisfied the requisite conditions for claiming deduction u/s 80IB of the Act in respect of Banas-Il Dairy Unit. The deduction is claimed for production of butter & milk power. Separate figures for production of each such item is available separate identifiable expenses are provided there against. Mere technicalities like certain information in audit report or filing audit report after filing return of income, but before completion of assessment proceedings are not to come in a way of claiming deduction u/s 80IB of the Act. Since no error in the order of Ld, CIT(A) is pointed out, the matter need not be restored back as it will amount to giving a second innings to the AO which is not permissible. Since no infirmity in the order of Ld. CIT(A) is found, we uphold the order of Ld. CIT(A) in this regard."
We have heard the rival submissions and perused the orders of the authorities below and the materials available on record. In the instant case the assessee claimed deduction of Rs.3,31,37,355/- u/s 80IB in the return of income being the amount of 100% income derived from Banas-11 Dairy Expansion Plant. The assessee vide its letter dated 25-11-2008 revised its claim for deduction u/s 80IB to Rs.82,84,339/- in place of Rs.3,31,37,355/- and according to the assessee it was entitled for deduction at the rate of 25% not 100% of the profit of Banas-11 Dairy Expansion Plant. The Learned Assessing Officer disallowed the claim of Rs.82,84,339/- also by observing as stated above in this order. On appeal, the Learned Commissioner of Income-tax (Appeals) deleted the disallowance of Rs. 82,84,339/- for the reasons also quoted above in this order. We- find that the Learned Commissioner of Income-tax (Appeals) deleted the ITA No. 2047/Ahd/2010 A.Y. 2007-08 Page No. 4 The ACIT vs. The Banaskantha Dist. Co-op. Milk disallowance of deduction by following the order of the Tribunal passed in the case of the assessee itself for Assessment Year 2004-05. The Learned Departmental Representative could not point out any good reason as to why the above order of the Tribunal passed in the case of the assessee itself for the Assessment Year 2004- 05 should not have been followed by the Learned Commissioner of Income-tax (Appeals) for the Assessment Year under appeal also. However, we find that in the order of assessment the Learned Assessing Officer observed that from the perusal of profit and loss account of Dairy business and cattle feed business of the assessee that certain common expenses were debited in Dairy Business which were also attributable for Cattle Feed Business also. From this the Learned Assessing Officer concluded that an apportionment of such joint or common expenses the loss of assessee in the Cattle Feed Business will increase and the profit in Dairy Business will be reduced. In our considered opinion, the above conclusion of the Learned Assessing Officer is clearly unsustainable. In our view, when a part of the expenses which were debited by the assessee in Dairy Business is apportioned to the Cattle Feed Business, then the profit of the Dairy Business will increase and the Learned Assessing Officer wrongly held that the same will be reduced. As the profit of the Dairy business will increase on acceptance of the finding of the Learned Officer as recorded in the order of assessment, it cannot be held that the assessee has claimed higher amount of deduction u/s 80IB by claiming the same at Rs 82,84,339/- rather as per this finding it has claimed deduction for the lesser amount by debiting the common expenses against the eligible profits. As the issue of eligibility of deduction u/s S01B of the Act in respect of profit derived from Banas-11 Dairy Expansion Plant has already been decided in favour of the assessee by this Tribunal in the case of the assesses for Assessment Year 2004- 05, we find no good reason to interfere with the order of the Learned Commissioner of Income-tax (Appeals). Thus, this ground of appeal of the Revenue is dismissed."
5. Since the Revenue has not pointed out as to how the decision of the Hon'ble Co-ordinate Bench rendered in ITA No. 1362/Ahd/2009 A.Y. 2006- 07 in assessee's own case is not applicable on the facts of the year under ITA No. 2047/Ahd/2010 A.Y. 2007-08 Page No. 5 The ACIT vs. The Banaskantha Dist. Co-op. Milk consideration. In this view of the matter, respectfully, following the order of the Hon'ble Co-ordinate Bench rendered in ITA No. 1362/Ahd/2009 in assessee's own case relating to the assessment year 2006-2007, we do not find any infirmity into the order of the Ld. CIT(A), consequently, this ground of the Revenue's appeal is rejected.
5. In the result, the appeal of the Revenue is dismissed.
Order pronounced in open court on the date mentioned hereinabove at caption page Sd/- Sd/-
(A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 09/11/2012 ak
आदे श कȧ ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-
1. अपीलाथȸ / Appellant
2. ू×यथȸ / Respondent
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ- अपील / CIT (A)
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाइल / Guard file.
By order/आदे श से, उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, अहमदाबाद