M/S DIGITAL SYSTEMS INC,BADDI vs. ITO, PARWANOO

Per Sanjay Garg, Judicial Member:

The captioned appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), [hereinafter referred to as CIT(A)], Shimla dated 24.10.2017.

ITA No. 1700/Chd/2017- M/s Digital System Inc, HP 2 4. None was present on behalf of the assessee. However, during the

course of hearing before us, it was brought to our notice that the issue

involved in this appeal has already been adjudicated by the Hon’ble

Himachal Pradesh High Court vide their order dt. 28 November 2017 in

the group of cases with the lead case titled as M/s Stovekraft India vs.

Commissioner of Income Tax, ITA No.20 of 2015, and it was pointed

out that the Hon’ble High Court had decided the issue in favour of the

assessee, holding that there is no bar in the said section denying the

benefit of hundred percent deduction to new units undertaking

substantial expansion. Our attention was drawn to the relevant

conclusions of the Hon’ble High Court in this regard at para 55 of the

order as under:

“55.Thus, in view of the above discussion, these appeals are allowed and orders passed by the Assessment Officer as well as the Appellate Authority and the Tribunal, in the case of each one of the Assesses, are quashed and set aside, holding as under: (a) Such of those undertakings or enterprises which were established, became operational and functional prior to 7.1.2003 and have undertaken substantial expansion between 7.1.2003 upto 1.4.2012, should be entitled to benefit of Section 80-IC of the Act, for the period for which they were not entitled to the benefit of deduction under Section 80-IB. (b) Such of those units which have commenced production after 7.1.2003 and carried out substantial expansion prior to 1.4.2012, would also be entitled to benefit of deduction at different rates of percentage stipulated under Section 80-IC. (c) Substantial expansion cannot be confined to one expansion. As long as requirement of Section 80-IC(8)(ix) is met, there can be number of multiple substantial expansions. (d) Correspondingly, there can be more than one initial Assessment Years. (e) Within the window period of 7.1.2013 upto 1.4.2012, an undertaking or an enterprise can be entitled to deduction @ 100% for a period of more than five years.

ITA No. 1700/Chd/2017- M/s Digital System Inc, HP 3 (f) All this, of course, is subject to a cap of ten years. [Section 80-IC(6)]. (g) Units claiming deduction under Section 80-IC shall not be entitled to deduction under any other Section, contained in Chapter VI-A or Section 10A or 10B of the Act [Section 80- IB(5)].”

the above decision of the Hon'ble jurisdictional High Court. It was,

however, submitted that the issue be restored to the file of the

Assessing officer for verification as to whether the assessee has

actually carried out the substantial expansion to be entitled to claim

deduction u/s 80IC of the Act.

this stage. A perusal of the order of the Assessing officer reveals that

the Assessing officer has not disputed that the assessee unit has carried

out substantial expansion as provided under clause (b) of sub section

(2) read with clause (ix) of sub section (7) of section 80IC of the Act.

Almost similar view has also been taken by the Hon'ble Himachal

Pradesh High Court in the case of ‘M/s Stovekraft India vs.

Commissioner of Income Tax’ (supra) in the following concluding para

of the order:-

“58. On facts, we may clarify that the Revenue has not disputed, (a) the units having carried out substantial expansion within the definition of the Section, (b) their entitlement and extent of deduction would be dependent upon interpretation of the relevant provisions.”

We, therefore, do not find any justification at this stage to give the

Assessing officer a second innings to re-examine undisputed facts.

ITA No. 1700/Chd/2017- M/s Digital System Inc, HP 4

CIT(A) is set aside and the Assessing officer is directed to grant to the

assessee deduction at the rate of hundred percent of its eligible profits,

as per the ruling of the jurisdictional High Court in this regard in the

case of ‘M/s Stovekraft India vs. Commissioner of Income Tax’ (supra).

Order pronounced in the Open Court

Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 26.03.2018 Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR