2018 (2) TMI 1704

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....sthan High Court reported in 249 ITR 323 where as ground no. & not decided. Further the arguments were not appreciated, which should have decided as per law. 4. That if the deduction has been allowed in the initial year cannot be rejected in the subsequent year, was not adjudicated by the C.I.T. (A). 5. That the Commissioner of Income-tax (Appeals) should have appreciated that the provisions of the statute is binding on the Revenue Officer which was neither declared unconstitutional nor stayed by any of the competent court. 6. That the C.I.T. (A) should have appreciated the written submission, submitted before him. If not adjudicated is an illegality." 2. The ground no. 1 to 3 are regarding validity of the impugned order of the Ld. CIT(A). The assessee engaged in the business of manufacturing of wooden handicraft item and has shown income by sales thereof. The assessee claimed deduction u/s 80IB of the Act. The AO noted that the assessee has credited in its profit and loss account the following amounts:- I. Vishesh Krishi Upaj Yojana Rs. 42,55,715/- II. Drawback duty Rs. 23,51,125/- Total Rs. 66,06,840/-   The AO asked the ....

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....gned order passed by the Ld. CIT(A) without discussing all the contentions and decisions relied upon by the assessee is illegal. The arguments of the assessee were not considered while deciding the appeal and therefore it would tantamount to illegality. In support of his contentions, he has relied upon the decisions in the case of Laxmi Electronic Corporation Limited Vs. Commissioner of Income Tax 188 ITR 398. He has also relied upon the various decisions as under:- 1. Mulchand Patti Manufacture Company Vs. CIT 215 ITR 746 2. Munibyrappa Vs. CIT 168 CTR 640. 3. Jt. CIT Vs. Saheli Leasing & Industries Ltd. 4. Mangalore Ganesh Beedi Works Vs. CIT & Another 273 ITR 56. 5. Hukamchand Shankarlal Vs. CWT 163 ITR 1. Hence, the Ld. AR has contended the impugned orders of the Ld. CIT(A) may be set aside and matter may be remanded to the record of the Ld. CIT(A) for considering the contentions and decisions as raised by the assessee. 4. On the other hand, Ld. D/R has vehemently argued that when the issue in the appeal is covered by the decision of Hon'ble jurisdictional High court in the assessee's own case as well as decision of Hon'ble Sup....

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....ccepted the grant of deduction claimed u/s. 801-A following the order of 317 ITR page 218 delivered in case of M/s. Liberty India V/s. CIT. The order passed by the Assistant Commissioner of Income Tax is illegal because the statue is having provision in respect of treating the DETB has to be treated as business income. The provision has neither been stayed nor has been declared as un-constitutional till date by any court. The case order is illegal and against the law. This issue was not considered in case of the assessee ever till date by any of the authority in any year. In this connection, it is submitted with due respect and regard that the judgment of M/s. Liberty (India) is delivered without considering the amendment took place. Therefore, it is submitted that the same is against the law and not having the character of binding nature. It will be worthwhile to submit here that though in case the assessee himself, the Hon'ble Rajasthan High Court delivered judgment in the assessment year the judgment of M/s. Liberty India is applicable. The assessee went in the Appeal before Hon'ble Supreme Court and the same is still pending. In these facts and circum....

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....t portion of the order of Tribunal (Para 14) as under for your ready reference: "Assessee and without any changed circumstances, the said claim was sought to be denied in a subsequent year, and such an attempt was negated by the Hon'ble High Court. In the instant case, as we have noted earlier the circumstances have changed after the initial assessment year and therefore, the claim is sought to be denied on valid grounds and without disturbing the claim in the initial year because the circumstances in the initial year have not undergone any change." I want to also draw your kind attention towards the judgment delivered by Karnataka High Court in case of ACE multi Axes System Ltd. the relevant portion thereof is being reproduced hereunder: "Industrial growth which is required to be achieved, if two interpretations are possible, the courts have to learn in favour of extending the benefit of deduction to an assessee who has availed the opportunity given to him under law and has grown in his business. Therefore we are of the view, if a small scale industry, in the course of 10 years, stabilizes early, makes further investments in the business and it resul....

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....of circumstances the Hon'ble Tribunal dismissed the appeal of the department. The relevant portion is being reproduced hereunder: "In the Income Tax Appellate Tribunal Delhi Benches: "H" New Delhi Before Shri I.C. Sudhir, J.M. And Shri J. Sudhakar Reddy, A.M. ITA Nos. 766,2593/Del/2013 Assessment years: 2009-10, 2010-11 ITO, Ward-2, Room No. 210, 1st Floor, Income Tax Building, IDPL Veerbhadra, Rishikesh, Uttrakhand VS. Smt. Urmila Bhandari Prop. M/s Hotel Narayana Palace, Tapovan Badrinath Marg, Tehri Garhwal, Rishikesh, Uttrakhand 15. The proposition laid down in this judgment applies to the facts of this case. The AO has examined the condition of allowability of the claim u/s 80IC in the initial assessment year of the claims i.e. A.Y. 2005-06 itself in an order passed u/s 143(3) of the Act. This was followed in the subsequent A.Y. These assessments are not disturbed till date. There is no change in the facts and circumstances of the case. Only fresh view, contrary to the earlier view is taken during this impugned Assessment year on the same set of facts and exemption is denied. This cannot be permitted as held by the Juri....

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....Y 2008-09 as decided this issue against the assessee by following the decision of Hon'ble Supreme Court in the case of Liberty India vs. CIT (Supra). Thus, when the Hon'ble High Court in its wisdom has taken a view that the assessee is not eligible for deduction u/s 80IB in respect of Vishesh Krishi Upaj Yojana and Drawback Duty then, the said decision of Hon'ble Jurisdictional High Court is binding on the authorities below including this Tribunal. The Ld. AR has reiterated its contentions before us. However, we find that the decision in case of Topman Exports vs. CIT (Supra) has been rendered by the Hon'ble Supreme Court in respect of deduction u/s 80HHC and not in respect of the deduction u/s 80IB. Further, even if there is a merit in the contentions of the assessee that the decision in case of Topman Export is applicable but once the Hon'ble High Court has already decided this issue by understanding the implications of the Judgments of Hon'ble Supreme Court, then the authorities below are not supposed to take a different view as taken by the Hon'ble jurisdictional High Court in assessee's own case. It appears that the assesseee is more interested in criticizing the impugned orde....