2023 (10) TMI 687

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....- for the relevant year under consideration. 2. That the Authorities below had erred in facts and law of the case to make various observations in their respective orders. 3. That the Authorities below had either ignored or had not appreciated the submissions made by the appellant on the duty draw back claim made by the Assessee firm. 4. That the Interest charged under section 234B and 234C being wholly ill- legal deserve to be deleted, at any rate without prejudice the interest has charged was very excessive." 4. In ITA No. 6568/Del/2018, following grounds have been raised by the Revenue: "1. Whether in the facts and circumstances of the case, the Id. Commissioner of Income Tax (Appeals) has erred in law and fact in allowing deduction u/s 80IC of the I.T. Act, 1961 @100% on the total business income ignoring the principle of natural justice as neither any remand report was called for from the A.O. nor any opportunity of hearing was provided to the A.O. inspite of the fact that the A.O. had made request for hearing to the CIT(A) through ITNS-51. 2. Whether in the facts and circumstances of the case, the Id. Commissioner of Income Tax (....

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....y the assessee firm in this respect clearly reflect that finished goods worth Rs. 12,196,47,491/- were transferred to Ms. Meenakshi Gupta. 5. That in the facts and circumstances of the case, the order of the Id. Commissioner of Income Tax(A), Meerut may be set aside and that of the A.O. be restored." Brief facts: 5. M/s Sharda Exports (PAN: AACFS8466H) started business in 1983 from Meerut having partners namely, Shri Jitendra Kumar Gupta Smt Meenakshi Gupta W/o Sh. J.K. Gupta Shri Aditya Gupta S/o Sh. J.K. Gupta Shri Ashish Gupta S/o Sh. J.K. Gupta 6. M/s Sharda Exports (PAN: AAYFS1694N) came into existence in the F.Y.2004-05 and this firm was dissolved in the F.Y.2009-10. 7. The assessee M/s Sharda Exports (PAN: ABOFS0079G) came into existence from 01.04.2009 having partners namely, Shri Jitendra Kumar Gupta Shri Aditya Gupta S/o Sh. J.K. Gupta Shri Ashish Gupta S/o Sh. J.K. Gupta 8. The assessee claimed deduction u/s 80IC of the Income Tax Act, 1961 from the A.Y. 2010-11 onwards. The instant assessee had turnover of Rs. 75 Cr. in the first year of business. The moot allegation of the Assessing ....

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....the tool of forming a new firm in the same name at the same premises to claim deduction u/s 80IC @ 100% beyond the time limit permissible as per the law. Holding thus, the Assessing Officer disallowed the deduction claimed by the assessee u/s 80IC. 11. Aggrieved, the assessee filed appeal before the ld. CIT(A) who deleted the addition made by the AO. Ergo, the revenue filed appeal before us. 12. During the arguments before us, the ld. DR succinctly brought to our notice, the similarities of the business as mentioned in the Assessment Order which have been duly quoted in the above part of the order, provisions of the Act and explained at length with regard to reconstruction and splitting of the entity. The ld. DR has also argued that the machinery which has been used earlier is still being used in the existing entity and hence no deduction is allowable. 13. On the other hand, the ld. AR argued that the firm came into existence w.e.f. 01.01.2009 and it began to manufacture articles from 01.04.2009 and hence the Assessment Year 2010- 11 is the initial Assessment Year for claiming of deduction u/s 80IC @ 100% which has been wrongly allowed by the AO @ 25% treating it as 6^th y....

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....ssessee from M/s Tirupathi Carpets. These facts have not been in dispute. The purchases by the assessee from Tirupati Carpets, Meerut cannot be viewed adversely for the inference that old and new firm are one and the same. It is also to be submitted that Tirupathi Carpets is assessed to income tax. This transaction stands declared in the books of Tirupathi Carpets for A.Y. 2010-2011 which was accepted in its Income Tax assessment. 17. The old Firm was dissolved vide deed of dissolution dated and effective from 01.04.2009, as per the copy of dissolution deed. The assessee firm came into existence on 01.01.2009 which is evident from the copy of deed of partnership dtd. 01.01.2009 as per records which the A.O. wrongly noted in the assessment order as 01.04.2009. The said partnership deed has also been got registered with the "Registrar of Firms" vide certificate in "Form-A" dated 12.04.10. In this registration certificate, the date of joining has been specified as "01.01.2009". It shows that during the period 01.01.09 till 31.03.09, the old as well as the appellant firm, simultaneously existed. This construction of the dates persuaded him to reach to a diabolic conclusion that the ....