Auto Tuff Safety Glass, , Daman vs Department Of Income Tax

Income-Tax Officer, Vapi V/S M/s. Auto Tuff Safety Glass Ward-4, Daman Plot No. 57/1 (3-A) & 57/1 (3-B) Dunetha, Bhensral Road, Nani Daman (Appellant) (Respondent)

PAN: AAJFA 8986L

Appellant by : Shri B.L. Yadav, Sr. D.R. Respondent by : Shri M.K. Patel, A.R.

(आदे श)/ORDER

Date of hearing : 19-06-2015 Date of Pronouncement : 19-06-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. The M.A. is filed by the Revenue against the order of Tribunal dated 11.02.2013 in respect of appeal in ITA No. 891/Ahd/2010 for A.Y. 2006-07.

2. In the Miscellaneous Application, the Revenue has interalia submitted that the Hon'ble Tribunal had dismissed the appeal of the Revenue by following the earlier decision of Tribunal in Assessee's own case for A.Y. 2005-06. It is further submitted that as per Section 80IB (4), the deduction is available to only those Assessee's whose undertaking commence manufacturing activities on or before 31st March, 2004. In the case of Assessee since the 2 M.A No. 90/A/14 (in ITA No. 891/A/10) . A.Y. 2006-07 Assessee did not have the factory license as on 31.03.2004 therefore it could not have started its manufacturing activity on or before 31st March, 2004. It is further submitted that the Hon'ble Tribunal has not considered the decision of Hon'ble Gujarat High Court in the case of CIT vs. Jolly Polymers and Ors. reported in (2012) 342 ITR 87 (Guj). It is therefore submitted that the non- considering of the decision of Hon'ble Gujarat High Court in the case of CIT vs. Jolly Polymers (supra) is a mistake apparent from record within the meaning of Section 254 (2) of the Act and therefore it is prayed that the order dated 11.02.2013 be rectified/recalled.

3. The ld. A.R. on the other hand submitted that the Assessee is located in Daman and therefore in view of the provisions of Section 260 of the I.T. Act, the jurisdiction of the Assessee lies with Hon'ble High Court at Bombay. He further submitted that the Hon'ble Bombay High Court in the case of CIT vs. Jolly Polymers (ITA (L) No. 1622/A/2012 order dated 21st February, 2013) has upheld the order of Tribunal whereby it has held that for the purpose of Section 80IB of the Act what is essential is that the Assessee should manufacture or produce an article or thing and if there is any violation of any provisions of any other statute than the Assessee has to explain the same to the authorities implementing those acts/statute and the same cannot be the basis of denial of benefit u/s. 80IB of the Act. He therefore submitted that in view of the decision of Hon'ble Bombay High Court which was be applicable to the Assessee, there is no apparent error in the order of Tribunal and therefore opposed the miscellaneous application of the Revenue.

3 M.A No. 90/A/14 (in ITA No. 891/A/10) . A.Y. 2006-07

4. We have heard the rival submissions and perused the material on record. The grievance of the Revenue as stated in its M.A. is that in the absence of factory license, Assessee could not have started its manufacturing activity on or before 31st March, 2004 and therefore was not eligible for deduction u/s. 80IB. It is an undisputed fact that the Assessee is located at Daman and the jurisdiction High Court of Assessee lies with Hon'ble High Court at Bombay in view of the provisions of Section 269 of the Act. We find that the Hon'ble Bombay High Court in the case of CIT vs. Jolly Polymers (supra) has held that violation of provisions of other statute cannot be the basis of denial of benefit u/s. 80IB of the Act. In view of the aforesaid, on the merits we find no error in the order of Hon'ble Tribunal. Further, it is a settled law that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Further, the Tribunal cannot in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. In the present case, no such mistake was apparent from the record. In view of the aforesaid facts, we are of the view that since the Revenue has failed to point out any mistake apparent from record in the order, we are not inclined to recall the order of the Co-ordinate Bench in ITA. No. 891/A/2010 order dated 11.02.2013 and thus the Miscellaneous Application bearing no. 90/A/2014 is hereby dismissed.

4 M.A No. 90/A/14 (in ITA No. 891/A/10) . A.Y. 2006-07

5. In the result, the Miscellaneous Application is dismissed.

Order pronounced in Open Court on 19 - 06 - 2015.

Sd/- Sd/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh

Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER

Deputy/Asstt.Registrar ITAT,Ahmedabad