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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri Waseem Ahmed, AM]
ORDER Per Bench: All these appeals by revenue are arising out of common order of CIT(A)- XXX, Kolkata in Appeal Nos. 246, 334 & 337/CIT(A)-XXX/Ward-43(4)/2010-11 dated 29.09.2011. Separate assessments were framed by ITO, Ward-43(4), Kolkata u/s. 143(3)/254 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2005-06, u/s. 147/143(3) of the Act for AY 2004-05 and u/s. 147/143(3) of the Act for A.Y. 2006-07 vide his orders dated 27.12.2010 and 30.12.2009 respectively.
Appeal for AY 2005-06 is delayed by 03 days, appeal for AY 2004-05 is delayed by 11 days and appeal for AY 2006-07 is delayed by 11 days. Revenue has filed condonation petition along with affidavits explaining the reasons for the delay in above three appeals. Since Ld. Counsel for the assessee did not raise any objection, we condone the delay and admit the appeals for hearing.
2 M/s. Chopra Imaging System, AY:2005-06 , 2004-05 & 2006-07 3. The only common issue in these three appeals of revenue is against the order of CIT(A) allowing exemption u/s. 80IB of the Act. The following are the grounds in all the years: “Grounds of appeal in the cases of M/s. Chopra Imaging System For AY 2005-06, 2004-05 and 2006-07. 1)That the Ld. CIT(A)-XXX, Kolkata has erred in allowing the 100% claim of exemption u/s. 80IB of the I. T. Act, 1961 to the tune of Rs.1,39,88,926/-, Rs.3,41,690/- and Rs.45,43,050/-. 2) That the only issue for allowing exemption u/s. 80IB involves substantial question of law of importance in this cases, which were exclusively narrated in the assessment order itself. 3) That the tax effect in this cases are Rs.88 lacs.
4. At the outse, Ld. counsel for the assessee stated that the issue of allowing deduction u/s. 80IB of the Act is squarely covered in favour of assessee and against revenue by the decision of this Tribunal in the case of ITO Vs. M/s. Sharp Prints in ITA No. 135/K/2012 for AY 2005-06 & ITA Nos. 157 & 158/K/2012, Ays 2004-05 & 2006-07 vide order dated 17.06.2013 exactly on similar facts.
We have heard rival submissions and gone through facts and circumstances of the case. Briefly stated facts are that the AO during the course of assessment proceedings disallowed deduction claimed by assessee u/s. 80IB of the Act and treated the profit earned as taxable income u/s. 68 of the Act for the reason that the firm is non-existent and also the manufacturing activities allegedly carried out are not genuine. The AO narrated the fact that 3 plot nos were mentioned in Form 3CD as well as in partnership deed from where the assessee is carrying on manufacturing activity (allegedly) the business premises could not be verified from the available documents. The AO disallowed the same in AY 2005-06 by observing as under: “Considering the above anomalies and in view of the points raised, it is crystal clear that the assessee firm did not confirm any specific premise number as their manufacturing premise. The submission is highly puzzling and dumbfounding. And upon examination of all transactions and submission of documents that have been filed for the firm, carrying of business activities and also existence of proper business premises could not be adduced from the available evidences and documents. In view of above findings, it could not be established that any manufacturing activity was in fact carried out at the so-called premise, rather it is false and claim for existence of the firm itself could not be proved. However, he was given sufficient opportunity to establish the existence of firm. It is the burden of the assessee to establish the existence of the firm & genuineness of the manufacturing 3 M/s. Chopra Imaging System, AY:2005-06 , 2004-05 & 2006-07 activities as well. But the onus has not been discharged. It is evident that the assessee has used colourable device to defraud revenue by claiming 100% deduction u/s. 80IB, hence, deduction claimed u/s. 80IB of the Act is a bogus claim and accordingly disallowed in view of above facgts and findings. So, in absence of manufacturing business activities as detailed above, Rs.1,39,88,926/- credited in the books in the form of net profit is taxed u/s. 68 of the Act as unexplained cash credit.”
Aggrieved, assessee preferred appeal before CIT(A), who after considering the submissions of the assessee allowed deduction u/s. 80IB of the Act by observing in para 4, 41 and 4.2 as under: “4. The submissions in Appeal have been considered. The AO concluded that evidence of the existence of the business premises and carrying on of the business activities was not establihed therefore it was false claim for the existence of the firm itself. He concluded that on examination of the documents it could not be proved that the assessee carried on any manufacturing activity, that the address and existence of the business was not established that the genuineness of the business was not estabtished. It was held that the onus was not discharged by the assessee and hence the income was assessed as unexplained cash credit and consequently the deduction u/s 80IB was denied. It is seen that in re-assessment proceedings the AO has rejected the various evidences produced by the Appellant in the form of Registrations and licenses obtained by the firm from different Government agencies. It is seen in response to query of the AO in reassessment proceedings the Appellant had filed along with its submission dated 27.09.2010 copies of Pollution Control Certificate, Factory License, letter from Electricity Department regarding power connection as well as copies of electricity bills. It had also been claimed in the above submissions that purchases and sales have been made from a number of parties for which evidences have been filed and that it has obtained relevant licences and clearance under the applicable state loss and that or transaction were supported by proper bills and vouchers and these evidences may also be verified. However, the AO has without making any fresh enquiries or bringing on record any fresh evidences has without even cross verifying these evidences once again has relied on the report of JDIT (Inv), Surat and the alleged discrepacncy regarding the plot number to hold that the Appellant has tried to camouflage from the IT Department the non-existence of the firm. It is further seen that the AO has not bothered to cross verify or examined the authenticity of the documents relied upon by the Appellant to establish the existence of the firm as well as its manufacturing activities. He has in fact again based himself on suspicion and prernises rather than bringing any fresh evidence on record or cross verifying the evidence submitted by the Appellant, let alone disprove the same. In fact it is seen that the AO has simply recycled the original Assessment Order basing himself on the report of the Jt. Director of Investigation and alleged anomalies in respect of the plot no. and typographical error in respect of the rent bill which had been considered in original appeal and has not brought any fresh evidence on record. 4.1 On the other hand the Appellant in reply to the queries raised in reassessment proceedings has qiven its submission to the AO in reassessment proceedings vide letter dt. 27 9.2010. It may also be mentioned here that in the original appeal for A.Y 2005-06 by the CIT(A) all these issues had been considered and it had been held that from perusal of the details it could not be said that that the appellant firm did not have its manufacturing business operation at plot 38 during the relevant 4 M/s. Chopra Imaging System, AY:2005-06 , 2004-05 & 2006-07 year and its claim for manufacturing from this address was upheld. This had been arrived at after considering all issues including the matter of the Plot number which has again been explained in the reassessment proceedinqs and substantiated by documentary evidence for the unit's address at plot No.38 at the relevant point in time . Therefore, since no fresh evidence is there in reassesssment proceedings to disprove the same, there is no need for the above findings to be reconsidered. It may be mentioned in respect of the enquiry report, that the enquiry had been conducted by the JDIT after a lapse of time by which Appellant shifted the business and hence no operation was noticed at the premises. This is clear from the fact that the accounting period is F.Y. 2004-05 whereas the enquiry was marked for lnvestigation in August,2007. It has also been submitted that the firm was closed down in 2006. Therefore, since the enquiry was conducted at a later date it cannot he the sole basis for concluding that the firm or manufacturing activity of the firm did not exist at the relevant point of time. 4.2. It may be mentioned that the Appellant has submitted evidence in reassessment proceedings in the form of letter from Electricity Department dated 9-01-03, the copy of electricity bills, letter from Department of Industries, Form 'B' of Sales Tax department dated 6-06-2005 as well as NOC from pollution control Committee and none of these evidences have been disproved or even verified from these agencies by the AO to confirm the authenticity or otherwise in respect of the existence and genuineness of the firm. It is seen that the AO had in reassessment proceeding required the Appellant to produce evidence papers to substantiate the existence of manufacturing unit i.e. eligible business for deduction u/s. 80-IB. In response to the same the Appellant vide letter dt. 27.09.2010 submitted copies Pollution Control Certificate dated 17-07-03, Factory License, Electricity Bills, Sales Tax Form S.T.IV dated 12-06-03 lette.r from electricity department etc. The AO has simply ignored even the evidence filed in reassessment proceedings whereas it is seen that the onus of establishing the existence of the firm has been discharged by the Appellant in reassessment proceedings. The AO on the other hand has neither cross verified these evidences nor brought anything on record to establish the allegation of non-genuineness of the firm and its manufacturing activities. The AO was therefore not justifying in claiming that the Appellant has not discharged its burden to establish the existence of the firm and the genuineness of the manufacturing activities. In view of the above discussion the Appellant's contention regarding the manufacturing business conducted plot no. 38 Silver Industrial Estate Himpur, Daman for the relevant accounting period is accepted and the AO, is directed to compute the profit of the appellant and grant deduction u/s 80-IB. In the result the appeal is allowed. Appeal No. 334/CIT(A)-XXX/Wd-43(4)/2009-10 (Assessment Year: 2004-05) Decision: The facts for this year are incidental to those of Assessment Year 2005-06 and the AO has reopened the case in this year u/s. 148 on the basis of findings and enquiries made for Assessment Year 2005-06. The issue is similar in this year also and pertains to disallowance of deduction claimed by the Appellant u/s. 80-IB and taxation of its income u/s. 68 of the I. T. act. Considering the facts and submissions are identical to those of Assessment Year 2005-06 the decision in appeal for this year is being followed in the current year i.e. 2004-05. The appeal is accordingly allowed.
5 M/s. Chopra Imaging System, AY:2005-06 , 2004-05 & 2006-07 Appeal No. 337/CIT(A)-XXX/Wd-43(4)/2009-10 Assessment Year: 2006-07 Decision : The facts for this year are identical to those of Assessment Year 2005-06 and the AO has reopened the case in this year u/s. 148 on the basis of findings and enquiries made for Assessment Year 2005-06. The issue is similar in this year also and pertains to disallowance of deduction claimed by the Appellant u/s. 80-IB and taxation of its income u/s. 68 of the I. T. Act. Considering the facts and submissions are identical to those of Assessment Year 2005-06 the decision in appeal for this year is being followed in the current year i.e. 2006-07. The appeal is accordingly allowed.” Aggrieved, revenue preferred appeal before us.
We find that the assessee has complied with rules and regulations and obtained industrial license as SSI unit, Pollution Clearance Certificate from Pollution Control Board towards industrial undertaking, it is registered under Sales tax/VAT. It has also obtained electricity connection on the same address. The assessee contended that the lease of plot no. 39 (wrongly mentioned in the audit report as 3 no. of plots) was registered and copy of the same was filed before AO as well as before CIT(A). The assessee also produced details of sales and purchase invoice during the course of original assessment proceedings, during the course of set aside proceedings and even before CIT(A) and which were verified by issuing notices u/s. 133(6) of the Act. The AO also verified the transactions of purchase of machinery and sales as well as manufacturing of goods have been accepted. In such circumstances and the above evidences, we feel that the CIT(A) has rightly allowed the claim of assessee u/s. 80IB of the Act to the assessee being a manufacturing unit and all rules and regulations and necessary permission also obtained on the same plot no.
However, Hon’ble Calcutta High court in G.A. No. 114 of 2014 in ITAT No. 10 of 2015 in the case of CIT Vs. M/s. Sharp Prints vide its judgment dated 06.01.2015 has confirmed the order of ITAT and allowed the claim of assessee by holding as under: “The question for consideration was whether the business of the assessee was situated at the premises which was declared by him. In support of the aforesaid claim of the assessee, he, it is not in dispute, submitted bills, licenses, telephone bill, registration certificate granted by various state authorities. The Assessing Officer was of the opinion that these pieces of evidence were not enough but the Appellate Authority was of the opinion that these pieces of