TaxTMI 
TaxTMI 
2015 (9) TMI 1659
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....t and Genset components, sheet metal fabrication etc. The assessee filed its return of income for the A.Y. 2009-10 on 29-12-2009 declaring total income of Rs. 7,16,44,790/-. The case of the assessee was selected for scrutiny and accordingly notice u/s.143(2) was issued to the assessee on 18-08-2010. In the return of income, the assessee claimed deduction u/s.80IB(4) on the profits and gains from its Industrial unit located at Silvassa. During the course of scrutiny assessment, the AO disallowed the claim of assessee u/s.80IB(4) by placing reliance on assessment orders for the Assessment Years 2005-06 to 2008-09. The AO is of the view that the assessee has not been able to prove that it has started manufacturing activity on or before 31-03-2004 to be eligible to claim deduction u/s.80IB(4). As far as payment of commission is concerned, the AO rejected the claim on the ground that the assessee was not able to place on record relevant documents, viz., bills, TDS Certificates etc. to substantiate the claim. 4. Aggrieved by the assessment order dated 29-12-2011, the assessee preferred an appeal before the CIT(A). The CIT(A) in an exparte proceedings dismissed the appeal of the assess....
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....n the earlier assessment years, i.e. A.Y. 2005-06 to A.Y.2008-09. 8. We find that the issue relating to disallowance of deduction u/s.80IB(4) has been recurring every year from Assessment Year 2005-06 onwards. The Assessing Officer has been disallowing deduction u/s.80IB(4) in all the aforesaid assessment years on the same ground. In Assessment Years 2005-06 and 2008-09 the CIT(A) upheld the findings of Assessing Officer on the issue, whereas in Assessment Years 2006-07 and 2007-08 the CIT(A) allowed the claim of deduction u/s.80IB(4). Against the findings of the CIT(A) the assessee filed appeal before the Tribunal in Assessment Years 2005-06 and 2008-09 and the Revenue filed appeal before the Tribunal in Assessment Years 2006-07 and 2007-08. The Tribunal vide order dated 27-02-2015 decided all the four appeals. The relevant extract of the findings of the Tribunal are as under : "20. We have carefully considered the rival submissions. After having considered the orders of the authorities below and the rival submissions, one issue which comes out is that major plank of the Revenue is based on the enquiries conducted with the transporter. In-fact, whether or not the manufacturi....
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....t not only two Bill Nos. 130 and 132 were issued by the transporter but also Bill Nos. 246 and 249 which related to M/s Padwal Transport for carrying of two consignments from Pune to Silvassa on 28.03.2004 and bringing back the consignment to Pune on 30.03.2004. It was pointed out that total transportation charges covering the four bills totalled to Rs. 7,280/- and therefore the case setup by the transporter in his statement that it was impossible to make him trip from Pune to Silvassa for a sum of Rs. 1,820/- was only half-truth because the transporter had earned much more than the figure of Rs. 1,820/- which related to only one of the four bills raised. It was also pointed out that the transporter had himself stated that the transportation charges for one trip between Pune and Silvassa should have been Rs. 5,000/-, a statement made in the context of the amount of Rs. 1,820/- stated in the bill shown to him. The assessee pointed out that the transporter had earned Rs. 7,280/- which showed that the charges were commensurate to what was the expectation of the transporter. Since assessee pointed out that Bill Nos. 246 and 249 dated 30.03.2004 which were issued by the M/s Padwal Trans....
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....sh as to whether the signature on the transport bills were that of Shri Padwal or not. It was also asserted by the assessee that the cross-examination would not serve any purpose when the appropriate preparation was not possible at a short notice. No doubt, technically speaking, an opportunity was allowed to the assessee to cross-examine the transporter. The assessment order has been passed on 31.12.2010 and obviously the cross-examination opportunity was allowed at the fagend of the proceedings. Of-course, one of the reasons for the cross-examination to be allowed at the fagend was that the investigation itself were started late by the Assessing Officer. But the moot question is that can it be conclusively established on the basis of the apparently inconsistent stand of the transporter that there was no transaction effected with M/s Kavita Industries Pvt. Ltd. or M/s SNA Industries prior to 31.03.2004. In-fact, in the Excise return furnished by the assessee, a copy of which has been placed at pages 131 to 132 of the Paper Book, it is revealed that assessee returned the quantity manufactured and also showed its liability for excise duty on the quantity manufactured and sold. The sa....