Neelu Manoj Kothari , Silvassa vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL " B " BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI, A.M.)

I.T. A. No. 1573 & 1574 /AHD/2013 & 1589/AHD/2012 (Assessment Year: 2006-07, 2007-08 to 2009-2010)

Smt. Neelu Manoj Kothari V/S The Income Tax Officer, B/6/1, Basera Housing Vapi Ward-2, Vapi Complex, Silvassa, U.T. of D. & N.H. 396220

(Appellant) (Respondent)

PAN: ACFPK 2352N

Appellant by : Shri M.K. Patel, A.R. Respondent by : Shri Roop Chand, Sr. D.R.

(आदेश )/ORDER

Date of hearing : 06-01-2015 Date of Pronouncement : 02 -02-2015

PER SHRI ANIL CHATURVEDI,A.M.

1. These 3 appeals filed by the Assessee are against the order of CIT(A), Valsad dated 31.03.2012 15.03.2013 & 25.03.2013 for A.Ys. 2006-07, 2007-08 & 2009-2010 respectively.

2. Before us, the ld. A.R. submitted that though there are 3 appeals but the facts and circumstances of all the cases are similar except for the assessment years and amounts and the submissions are also common for all the appeals and therefore all the appeals can be heard together. We therefore proceed to 2 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

dispose of all the appeals together for the sake of convenience and thus proceed with the facts for A.Y. 2007-08.

3. The relevant facts as culled out from the material on record are as under.

4. Assessee is an individual stated to be engaged in the business of manufacturing of Hair Oil and Insurance Agent. Assessee filed her return of income for A.Y. 07-08 on 31.10.2007 declaring total income of Rs. 2,77,306/-. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 29.12.2009 and the total income was determined at Rs. 16,02,460/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who vide order dated 31.03.2012 dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us and has raised the following grounds;-

1. On appreciation of the facts and circumstances of the case the Learned Commissioner of Income Tax (Appeals) has erred in passing the appellate order without granting the appellant an opportunity of being heard. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and prejudicial to the appellant.

2. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned assessing Officer in not granting deduction U/s. 80IB to the appellant on the basis that the appellant has not complied with the conditions laid down in Section 80IB(2)(ii) of the Act. The action of the Commissioner of Income Tax (Appeals) is contrary to the facts of the case and the provisions of section 80IB on a plain reading and literal interpretation of the law and hence deserves to be deleted.

3. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned assessing Officer in not granting deduction U/s. 80IB of the Income Tax Act 1961 amounting to Rs. 4,62,271/- to the appellant. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and law and deserves to be deleted 3 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

5. Before us, ld. A.R. submitted that though various grounds are raised, the only effective ground is with respect to denial of deduction u/s. 80IB.

6. During the course of assessment proceedings, A.O noticed that Assessee has claimed deduction of Rs. 13,25,154/- u/s. 80IB of the Act. He also noticed that Assessee had purchased the entire manufacturing unit in the month of October, 2004 on the basis of deed of assignment from the earlier owners, M/s. M.R. Lubricants, a partnership firm represented by one partner Shri Sudhir Jain. He also noticed that the said unit was set up in year prior to calendar year 2004 and had commenced commercial production in the same year meaning thereby that the machineries were previously used by aforesaid M.R. Lubricants. He was therefore of the view that since the plant and machineries was previously used by M.R. Lubricants and the same machinery formed 100% of the total plant and machinery of the Assessee's business, the conditions laid down in Section 80IB(2)(ii) have not been fulfilled. He accordingly denied the claim of deduction u/s. 80IB of the Act. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A). CIT(A) upheld the order of A.O by holding as under:-

4.3 DECISION :- I have considered the observations of the AO in the assessment order as well as the contentions by the AR of the appellant in the written submission. The industrial unit was previously owned by M/s. M. R. Lubricant which transferred to the appellant. The appellant started a new business in the name of M/s. 4 Seasons Care with the plant & machineries previously used by M/s. M. R. Lubricant . The business of M/s.

M. R. Lubricant was manufacturing of industrial oil, automobile base oil and thinner, whereas, the appellant manufactures hair oil. These facts are sufficient to prove that the appellant formed the new business by transfer of plant & machinery which was previously used by M/s. M. R. Lubricant. Therefore, the conditions laid down in section 80IB(2)(ii) of the Act that where an industrial undertaking, any machinery or plant or part thereof previously used for any purpose is transferred to new business and total value of the machinery or plant or part so transferred exceeds 20% of the total value of the machinery or plant used in the business, then the industrial undertaking does not qualify for deduction u/s. 80IB of the Act. In the instant case, the appellant is totally failed to fulfill the conditions laid down in section 80IB of the Act. Therefore, the AO is 4 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010 rightly justified in disallowing the deduction u/s. 80IB of the Act amounting to Rs. 13,25,154/-. Thus, this ground of appeal is dismissed

7. Aggrieved by the order of CIT(A), Assessee is now in appeal before us.

8. Before us, ld. A.R. reiterated the submissions made before A.O and ld. CIT(A) and further submitted that the industrial undertaking has not been formed out by splitting of reconstruction of a business already in existence but on the contrary all the conditions stipulated u/s. 80IB has been fulfilled. The ld. A.R. further submitted that in the present case there was a mere change in the ownership of industrial undertaking and was not the case where the Assessee had formed any new industrial undertaking but had acquired and industrial undertaking and to give the business the identity, the name was changed to "four seasons". He further submitted that deduction u/s. 80IB is available qua "industrial undertaking" and not qua Assessee. The ld. A.R. further submitted that the A.O has not examined as to whether the Assessee has fulfilled the other conditions stipulated u/s. 80IB of the Act. He further placed reliance on the decision of Allahabad High Court in the case of CIT vs. Bullet International 349 ITR 267 and the decision of Madras High Court in the case of CIT vs. Heartland KG Information Ltd. 359 ITR 1. He further submitted that though the decisions relied by Assessee are with respect to Section 10A but since the language used in Section 10A is similar to Section 80IB, the ratio of the aforesaid decisions are applicable in the present case also.

9. With respect to A.Y. 06-07, the ld. A.R. further submitted that since the claim of Assessee was denied for A.Y. 07-08, the A.O reopened the assessment for A.Y. 06-07 and for the similar reasons given while 5 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

disallowing the claim for deduction for A.Y. 07-08 also denied the claim of deduction for A.Y. 06-07. He therefore fairly submitted that the matter may be remitted to the file of A.O to decide the issue afresh. The ld. D.R. on the other hand supported the order of A.O and ld. CIT(A).

10. We have heard the rival submissions and perused the material on record. We find that in the present case, the Assessee has been denied the deduction u/s. 80IB only for the reason that the machinery used by the Assessee were old machinery in view of the fact that those machineries were acquired by the Assessee from M/s. M.R. Lubricants who had used those machineries in earlier years. We find that for claiming deduction u/s. 80IB various conditions stipulated therein are required to be fulfilled by the Assessee. We find that there is no finding of the A.O with respect to the fulfillment of various other conditions stipulated u/s. 80IB of the Act. We further find that Assessee had submitted that it had purchased the entire manufacturing unit on "as is where is basis" and such unit comprised of land building and all machineries and on which also there is no finding by A.O. In view of the aforesaid facts, we are of the view that the issue needs to be re-examined at the end of A.O. Further since the claim of A.Y. for A.Y. 2006-07 has also been denied for similar reasons as given for A.Y. 07-08, we therefore set aside the issue to the file of A.O for A.Y. 06-07 and 07-08 to decide the issue afresh after considering the submissions of the Assessee and in accordance with law. Needless to state that A.O shall grant adequate opportunity of hearing to the Assessee. In the result, the grounds of Assessee for both the years are allowed for statistical purposes.

11. Thus the appeals of Assessee are allowed for statistical purposes.

6 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

12. We now consider ITA No. 1574/AHD/2013 for A.Y. 2009-10.

13. Assessee electronically filed the return of income for A.Y. 09-10 on 30.09.2009 declaring total income of Rs. 9,75,488/-. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 30.12.2011 and the total income was determined at Rs. 1,05,93,432/- interalia by disallowing the claim of u/s. 80IC of the Act. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who vide order dated 25.03.2013 dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us and has raised the following grounds;-

1. On appreciation of the facts and circumstances of the case the Learned Commissioner of Income Tax (Appeals) has erred in passing the appellate order without granting the appellant an opportunity of being heard. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and prejudicial to the appellant.

2. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned assessing Officer in not granting deduction U/s. 80IC to the appellant on the basis that the appellant has not complied with the conditions laid down in Section 80IC(4)(ii) of the Act. The action of the Commissioner of Income Tax (Appeals) is contrary to the facts of the case and the provisions of section 80IC on a plain reading and literal interpretation of the law and hence deserves to be deleted.

3. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned assessing Officer in not granting deduction U/s. 80IC of the Income Tax Act 1961 amounting to Rs. 96,17,944/- to the appellant. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and law and deserves to be deleted

14. Before us, ld. A.R. submitted that the only effective ground is with respect to denial of claim u/s. 80IC of the Act.

7 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

15. During the course of assessment proceedings, A.O noticed that Assessee was running three proprietary concerns of which one of them "Bluebells" was engaged in the business of manufacturing of talcum powder and tooth brush and was located in Roorkhee in Uttarakhand and the profit from it was claimed as exempt u/s. 80IC of the Act. A.O on the basis of the report dated 14.12.2011 commissioned u/s. 131 (1)(d) from ADIT, Dehradun, noticed that ADIT had informed the A.O that the profits of the unit from which Assessee has claimed deduction, was closed since long and it was also noticed that there was six machines in the unit and all the machines were secondhand. On the basis of the report of ADIT, A.O concluded that Assessee has not complied with the provisions of Section 80IC (4)(ii) and therefore he denied the claim of deduction. The order of A.O denying the claim of deduction was also upheld by ld. CIT(A). Aggrieved by the order of ld. CIT(A), Assessee is now in appeal before us.

16. Before us, at the outset ld. A.R. submitted that the only basis for denying the claim u/s. 80IC was the report of ADIT. It was submitted that the copy of the report was not made available to the Assessee and further ld. CIT(A) has also passed a very cryptic ex parte order. He therefore submitted that in the interest of justice, the matter may be remanded back. The ld. D.R. on the other hand supported the order of A.O and CIT(A).

17. We have heard the rival submissions and perused the material on record. We find that the AO had denied the deduction under 80IC to the Assessee by mainly relying on the report of ADIT (Inv) dated 14.12.2001. Before us, ld. A.R. has submitted that the aforesaid report of ADIT was never confronted to the Assessee. The aforesaid submission of the Assessee has not been 8 ITA No 1589/A/12, 1573 & 1574/A/13 . A.Ys. 2006-07, 2007-08 & 2009-2010

controverted by the Revenue by bringing any material on record. We further find that ld. CIT(A) had in the absence of compliance of notices by the Assessee, had passed an ex parte order. Considering the aforesaid facts, we are of the view that in the interest of justice, the Assessee should be granted one more opportunity to present its case. We therefore remit the issue back to the file of CIT(A) to decide the issue afresh. Needless to state that ld. CIT(A) shall grant adequate opportunity of hearing to both the parties. The Assessee is also directed to cooperate by promptly submitting all the required details called for by ld. CIT(A) to decide the issue. Ld. CIT(A) shall thereafter pass a speaking order in accordance with law. In the result, this ground of Assessee is allowed for statistical purposes.

18. In the result, the appeal of Assessee is allowed for statistical purposes.

19. In the result, all the appeals of Assessee are allowed for statistical purposes.

Order pronounced in Open Court on 02 - 02 - 2015.

Sd/- Sd/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT 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