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Income Tax Appellate Tribunal, MUMBAI BENCHES “J”, MUMBAI
Before: Shri Sanjay Garg, & Shri Ashwani Taneja
18/02/2016 सुनवाई क� तार�ख / Date of Hearing : 11/03/2016 आदेश क� तार�ख /Date of Order: आदेश / O R D E R Per Ashwani Taneja (Accountant Member): This appeal has been filed by the Revenue against the order of Ld. Commissioner of Income Tax (Appeals), Mumbai- 31 {(in short ‘CIT(A)’}, dated 15.05.2014 passed against
2 Jagdish P Khandelwal assessment order u/s 143(3) dated 24.02.2014 for the Assessment Year 2010-11 on the following grounds:
“1. The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in not appreciating the fact that the Assessee has not complied with the term of stipulations contained in sec lOB in its entirety.
2. The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in not considering the fact that the assessee actually split up and reconstructed his business which was already in existence.
3. The CIT(A) has erred on facts and in law and in the circumstances of the case in relying upon the decision of the Tribunal in the case of assessee for earlier years 4. The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in relying on the decision of the Hon'ble Tribunal dated 21.09.2011 passed by the Hon'ble Tribunal, Mumbai "I" Bench is otherwise bad in law and not maintainable in the facts and circumstances of the case.”
During the course of hearing, arguments were made by Shri Nishit Gandhi, Authorised Representative (AR) on behalf of the Assessee and by Shri K.Mohandas, Departmental Representative (DR) on behalf of the Revenue.
It was submitted by the Ld. Counsel of the assessee, at the very outset that the issues raised in this appeal stands
3 Jagdish P Khandelwal covered with the judgment of the Tribunal in assessee’s own case for various earlier assessment years, and while allowing the claim to the assessee, Ld. CIT(A) has followed the orders of the Tribunal in assessee’s own case.
On the other hand, no serious objection was raised by the Ld. DR on the aforesaid submissions of the Ld. Counsel. It is noted by us from the grounds raised by the revenue that Ld. CIT(A) has followed an earlier order of the Tribunal dated 29.09.2011.
It has been stated in the grounds raised before the Tribunal that earlier order of the Tribunal dt 29.09.2011 is bad in law. We find that the approach of the revenue by raising the grounds in this manner against the judicial decorum. The order passed by the Tribunal can be contested by the Revenue before the Hon’ble High Court, if the same is not found to be in accordance with law by the Revenue. But making an allegation in its ground before the Tribunal itself that the earlier order of the Tribunal is bad in law, is beyond the horizons of judicial decorum and thus not acceptable.
Be that as it may, the effective issue raised before us by the Revenue in its grounds is that the assessee is not eligible for deduction u/s 10B, on the ground that assessee had split up and reconstructed his business. In this regard it is noted that year before us is not the first year in which claim u/s 10B was made by the assessee. This claim has been made by the 4 Jagdish P Khandelwal assessee in earlier years also, wherein it was disallowed by the AO but allowed by the Tribunal in various orders passed by it. It is noted that Ld. CIT(A) has relied upon all these orders while accepting the claim of the assessee, and the relevant portion of his order is reproduced below: “I have considered the assessment order and the submissions of the AR as discussed above. From the facts brought on record, as discussed above, I find that this issue is decided by the Hon'ble ITAT in for A.Y. 2002-03, ITA No. 6102/Mum/2006 for the A.Y. 2003-04 dated 16.12.2008, ITA No. 4976/Mum/2007 for A.Y. 2004-05 dated 10-12-2009 and in ITA No. 4763/Mum/2010 for A.Y. 2007-08 dated 21-09- 2011. The relevant findings of the Hon'ble ITAT given as per paras-10 & 11 of its order dated 10- 12-2009 dealing with A.Y. 2006-07 read as under:- “10. We have heard the rival submissions and have considered them carefully. After considering the submissions and perusing other materials on record, we find that there is no substance in the appeals of the department. We note that the AO firstly held that deduction u/s 10B is not allowable. Thereafter, without prejudice, the AO held that the assessee is not entitled for deduction on cut and polished diamonds and thereafter without prejudice the AO held that the assessee is not entitled for deduction on studded jewellery with gold. We notice that the CIT(A) has decided the issue that the assessee is entitled for deduction u/s 10B only because of the reasons that before the CIT(A) the assessee has raised a ground that the AO was not justified in not allowing deduction u/s 1OB. Alternate findings of the AO in respect of cut and polished diamond jewellery and studded jewellery with gold were not challenged before the CIT(A) by the assessee. Regarding the issue in respect of deduction allowable u/s 1OB, it has already been decided by the Tribunal
5 Jagdish P Khandelwal while deciding the appeal for the assessment year 2003- 04 in 02/M106 and C.O. No.92/M107 vide order dated 16.12.2008. Copy of the order of the Tribunal is placed at pages 57 to 66 of the paper book filed by the assessee. Therefore, we hold that the assessee is eligible for deduction u/s 10B. For the sake of clarification, we may mention that neither the issue in respect of cut and polished diamond jewellery was decided by the CIT(A) nor any ground has been taken before the Tribunal by the department. Therefore, the contentions of the Id. D.R. that the deduction is not allowable on cut and polished diamond jewellery are not liable to be considered. Therefore, the same are not considered.
Regarding malleability of deduction u/s 10B, we have already state above that the Tribunal has already held that deduction u/s 10B allowable to the assessee. Moreover, the detailed reasoning given by the Id. CIT(A) could not be controverted by the Id. D.R. Therefore, we hoi that there is no infirmity in the finding of CIT(A) in holding that the assessee is entitled for deduction u/s 108. Accordingly, the grounds of the deparmt4nt in all its appeals are dismissed." 2.3.1 From the above decision, it is clear that the issue is covered in favour the appellant by virtue of the decision of the Hon'ble ITAT in its own case relevant facts being identical, following my own appellate order for A.Yrs. 2009 to 2010-11, this ground of appeal is decided in favour of the appellant. AO is directed to allow the deduction u/s 10B claimed by the appellant and ground of appeal is, therefore, allowed.”
During the course of hearing, no distinction has been made either on facts or on law by Ld. DR. Thus, respectfully following the orders of the Tribunal of earlier years, we decide
6 Jagdish P Khandelwal this issue in favour of the assessee and uphold the order of Ld. CIT(A).
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 11.03.2016.