The Banaskantha Dist.Co.Op.Milk Producers Union Ltd.,, Palanpur v. The Jt.CIT.,B.K.Range,, Palanpur

ITA 3599/AHD/2008 | 2005-2006
Pronouncement Date: 26-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 359920514 RSA 2008
Assessee PAN AAAAB0575E
Bench Ahmedabad
Appeal Number ITA 3599/AHD/2008
Duration Of Justice 1 year(s) 3 month(s) 25 day(s)
Appellant The Banaskantha Dist.Co.Op.Milk Producers Union Ltd.,, Palanpur
Respondent The Jt.CIT.,B.K.Range,, Palanpur
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 26-02-2010
Date Of Final Hearing 13-01-2010
Next Hearing Date 13-01-2010
Assessment Year 2005-2006
Appeal Filed On 31-10-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) I.T.A. NO. 3594/AHD./2008 ASSESSMENT YEAR : 2005-2006 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- TH E BANASKANTHA DIST. CO. OP MILK PRODUCERS B.K. CIRCLE PALANPUR UNION LTD. PALANPU R (PAN : AAAAB 0575 E) (APPELLANT) (R ESPONDENT) & I.T.A. NO. 3599/AHD/2008 ASSESSMENT YEAR : 2005-2006 THE BANASKANTHA DIST. CO.OP. MILK PRODUCERS -VS. - JOINT COMMISSIONER OF INCOME TAX UNION LTD. PALANPUR B.K. RANGE PALA NPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUNIL H. TALA TI C.A. DEPARTMENT BY : SHRI RAJEEV AGARWAL CIT(D.R.) O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER :- THESE CROSS APPEALS ARE AGAINST THE ORDERS BOTH DATED 29.08.2008 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XV AHMEDABAD FOR THE ASSESSMENT YEAR 2005-06. 2. WE FIRST TAKE UP THE APPEAL OF DEPARTMENT I.E. ITA NO.3594/AHD/2008 . 3. THE GROUND NO. 1 OF THE APPEAL IS AS UNDER :- THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XV AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING BASIC DED UCTION OF RS.50 000/- U/S. 80P(2)(C) OF THE I.T. ACT. 4. AT THE TIME OF HEARING OF THIS APPEAL SHRI RAJE EV AGARWAL CIT(D.R.) APPEARING ON BEHALF OF THE REVENUE CONTENDED THAT THE ASSESSEE H AS CLAIMED DEDUCTION OF RS.50 000/- UNDER SECTION 80P(2)(C) OF THE ACT. DEDUCTION UNDER THIS SECTION IS ALLOWABLE ONLY TO THE COOPERATIVE SOCIETIES OTHER THAN THOSE SPECIFIED IN SECTION 80P (2)(A) AND 80P(2)(B) OF THE ACT. THE ASSESSEE FALL IN SECTION 80P(2)(B) OF THE ACT. HENCE THE CL AIM OF DEDUCTION AMOUNTING TO RS.50 000/- CLAIMED UNDER SECTION 80P(2)(C) IS RIGHTLY DISALLOW ED BY THE A.O. 5. ON THE OTHER HAND SHRI SUNIL H. TALATI C.A. A PPEARING ON BEHALF OF THE ASSESSEE CONTENDED THAT IN ORDER TO FALL IN CLAUSE(B) OF SEC TION 80P(2) AN ASSESSEE HAS TO BE A PRIMARY 2 COOPERATIVE SOCIETY. THE ASSESSEE IS NOT A PRIMARY COOPERATIVE SOCIETY BECAUSE A PRIMARY COOPERATIVE SOCIETY AS PER SECTION 80P(2)(B) IS A S OCIETY WHICH IS ENGAGED IN SUPPLYING MILK OIL SEEDS FRUITS OR VEGETABLES RAISED OR GROWN BY ITS MEMBERS TO A FEDERAL COOPERATIVE SOCIETY ETC. IN VIEW OF THIS THE ASSESSEES CASE FALLS UNDER SECTI ON 80P(2)(C) OF THE INCOME TAX ACT AND THE ASSESSEE IS ENTITLED TO DEDUCTION OF RS.50 000/-. H E THEREFORE CONTENDED THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHE LD. 6. WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE R IVAL SUBMISSIONS MADE BEFORE US AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AS WEL L THE ORDER OF THIS TRIBUNAL DATED 30.07.1997 IN THE CASE OF KAIRA DISTRICT COOPERATIVE MILK PROD UCERS UNION LTD. (SUPRA) FILED BY THE LD. COUNSEL OF THE ASSESSEE. CLAUSE (C) OF SECTION 80P( 2) READS AS UNDER :- IN THE CASE OF A COOPERATIVE SOCIETY ENGAGED IN AC TIVITIES OTHER THAN THOSE SPECIFIED IN CLAUSE (A) OR CLAUSE (B) (EITHER INDEPENDENTLY OF OR IN ADDITION TO ALL OR ANY OF THE ACTIVITIES SO SPECIF IED) SO MUCH OF ITS PROFITS AND GAINS ATTRIBUTABLE TO SUCH ACTIVITIES A S [DOES NOT EXCEED] - (I) WHERE SUCH COOPERATIVE SOCIETY IS A CONSUMERS COOP ERATIVE SOCIETY [ ONE HUNDRED] THOUSAND RUPEES (II) IN ANY OTHER CASE [ FIFTY] THOUSAND RUPEES. EXPLANATION IN THIS CLAUSE CONSUMER COOPERATIVE SOCIETY MEANS A SOCIETY FOR THE BENEFIT OF THE CONSUMERS. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROCURIN G AND PROCESSING THE MILK MANUFACTURING OF MILK AND MILK PRODUCTS PROCURING AND SUPPLY OF TEA . ADMITTEDLY THE ASSESSEE IS NOT A PRIMARY COOPERATIVE SOCIETY ENGAGED IN SUPPLYING MILK OIL SEEDS FRUITS OR VEGETABLES RAISED OR GROWN BY ITS MEMBERS. THEREFORE THE ASSESSEE FALLS UNDER SE CTION 80P(2)(C) AND NOT UNDER SECTION 80P(2)(B) AS HELD BY THE A.O. IN THE ASSESSMENT ORD ER. THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS LEGALLY AND FACTUALLY CORREC T IN HOLDING THAT THE ASSESSEE IS ENTITLED TO DEDUCTION OF RS.50 000/-. RESULTANTLY THIS GROUND OF APPEAL TAKEN BY THE DEPARTMENT IS REJECTED. 7. THE GROUND NO. 2 OF THE APPEAL READS AS UNDER :- THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS )-XV AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION OF INTEREST OF RS.1 86 68 641/- AND DIVIDEND OF RS.62 99 641/- U/S. 80P(2)(D) OF THE I.T. ACT. 3 8. AT THE TIME OF HEARING OF THIS GROUND OF APPEAL AT THE OUTSET THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT THE S IMILAR ISSUE HAS BEEN CONSIDERED BY THE ITAT AHMEDABAD BENCH IN ASSESSEES OWN CASE IN FAVOUR OF ASSESSEE IN I.T.A. NO. 3730/AHD./2002 FOR THE ASSESSMENT YEAR 1990-91; I.T.A. NO. 1090/AH D./1995 FOR THE ASSESSMENT YEAR 1991-92 ORDER DATED 16.03.2001. THE LD. A.R. FURTHER SUBMIT TED THAT THE LD. CIT(A) HAS ALSO GIVEN THE RELIEF TO THE ASSESSEE BY FOLLOWING THESE ORDERS OF THE TRIBUNAL AS MENTIONED IN THE IMPUGNED ORDER THEREFORE THE VIEW TAKEN BY THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) BE UPHELD. 9. ON THE OTHER THE SHRI RAJEEV AGARWAL CIT (D.R. ) APPEARING ON BEHALF OF REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSION OF THE LD. COUNSEL OF THE ASSESSEE. 10. WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS MADE BEFORE US AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. IN TH E IMPUGNED ORDER ON PAGE 25 THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS FOLLOWED TH E DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 1990-91 TO 1993-9 4. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALSO MENTIONED THAT THE A.O. HAS NOT P ROVED THAT INVESTMENTS BY THE ASSESSEE WERE OUT OF BORROWED FUNDS. IN THESE CIRCUMSTANCES IN O UR OPINION THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS LEGALLY AND FACTUALLY CORREC T IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION UNDER SECTION 80P(2)(D) TO THE ASSESSEE A S CLAIMED. WE THEREFORE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APP EALS). THIS GROUND OF APPEAL FILED BY THE REVENUE IS REJECTED. 11. NOW WE TAKE UP THE APPEAL BEING I.T.A. NO. 3599/KOL./2009 FILED BY THE ASSESSEE WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS :- (1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) ERRED IN HOLDING THAT PROVISIONS OF RULE 8D READ WI TH SECTION 14A APPLY TO THE PRESENT YEAR AND DIRECTED THE AO TO CA LCULATE THE EXPENDITURE U/S. 14A FOR THE YEAR ACCORDINGLY. (2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) FURTHER ERRED IN NOT HOLDING THAT SINCE NO EXPENSES HAVE AT ALL BEEN INCURRED BY THE APPELLANT COMPANY TO EARN THE DIVID END INCOME NO EXPENSES ARE REQUIRED TO BE ALLOCATED AGAINST EARNI NG OF SUCH INCOME. 4 12. THE GROUND NO. 1 OF THIS APPEAL IS IN REGARD TO CONFIRMING DENIAL OF DEDUCTION UNDER SECTION 80IB OF RS.82 64 666/- ON CATTLE FEED PLANT . AT THE TIME OF HEARING THE LD. COUNSEL OF THE ASSESSEE CONTENDED THAT THE ISSUE IS SQUARELY COVER ED BY THE DECISION OF THIS TRIBUNAL IN ITA NO. 1163/AHD/2008 IN FAVOUR OF THE ASSESSEE FOR THE ASS ESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE. 13. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESE NTATIVE CONTENDED THAT THE ITAT D BENCH AHMEDABAD VIDE ORDER DATED 07.11.2008 IN ITA NO. 1163/AHD/2008 IN PARA 6 RESTORED THE ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH NECESSARY INFORMATION INCLUDING CERTIFICATE FROM AN AUDITOR IF INSISTED BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPUTING ELIGIBLE PROFIT OF SUC H UNIT. THEREFORE FOR THIS YEAR ALSO SIMILAR DIRECTION BE ISSUED. 14. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF AUTH ORITIES BELOW AS WELL AS THE DECISION OF ITAT IN ITA NO. 1163/AHD/2008. WE FOUND CONSIDERABL E FORCE IN THE SUBMISSION OF THE LD. D.R. THE TRIBUNAL IN THE ASSESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE IN ITA NO. 1163/AHD/2008 (SUPRA) RESTORED THE ISSUE TO THE FIL E OF ASSESSING OFFICER. THE SAID PARA 6 OF ITATS ORDER IS REPRODUCED HEREUNDER :- WE HAVE CAREFULLY CONSIDERED RELEVANT FACTS ARGUME NTS ADVANCED AND THE CASE LAW CITED. AS RIGHTLY CONTENDED BY ASSESSEE'S COUN SEL SHRI TALATI THAT WHEN DEDUCTION IS CLAIMED U/S.80-IB OF THE ACT THE COND ITIONS TO BE LOOKED INTO ARE SUCH WHICH ARE PRESCRIBED IN SUB-SECTION (2) OF SE CTION 80IB OF THE ACT. THOUGH FILING OF AUDIT REPORT IS A MANDATORY CONDITION HO WEVER THE REQUISITE AUDIT REPORT CAN BE FILED ANY TIME BEFORE CONCLUSION OF A SSESSMENT. THIS LAW IS WELL SETTLED BY VARIOUS JUDICIAL PRONOUNCEMENT INCLUDING THAT OF JURISDICTIONS! HIGH COURT IN THE CASE OF CITV GUJARAT OIL AND ALLIED INDUSTRIES (1992} 201 ITR 325 (GUJ.); HON'BLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LTD. V. CIT (1992)196 ITR 188 (SC) HELD THAT A PROVISION FOR.DEDUCTION / EXEMPTION OR RELIEF SHOULD BE INTERPRETED LIBERALLY REASONABLY AND IN FAVOUR OF ASSESSEE AND IT SHOULD BE SO CONSTRUED AS TO EFFECTUATE THE OBJECT OF THE LEGISL ATURE AND NOT TO DEFEAT IT. SINCE A PROVISION FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY THE RESTRICTION ON IT IS TO BE CONSTRUED SO AS TO ADVAN CE THE OBJECTIVE OF THE PROVISION AND NOT TO FRUSTRATE IT. CONSIDERING THE ABOVE DECISIONS WHAT IS TO BE EXAMINED IS WHETHER THE CONDITIONS LAID DOWN IN SUB-SECTION- (2) OF SECTION 80-IB OF THE AC! ARE COMPLIED WITH OR NOT. WE FIND THAT IN RESPECT O F CATTLE FEED PLANT SET UP IN THE FINANCIAL YEAR 1993-94 AND 1997-98 BY INSTALLIN G CAPACITY OF 40 MT AND 100 MT WERE ALWAYS CONSIDERED IN THE PAST AS ELIGIBLE U NITS FOR CLAIMING DEDUCTION U/S 80-IB OF THE ACT. ONCE THE CONDITIONS ARE SATIS FIED IN THE INITIAL YEARS IN 5 SUBSEQUENT YEARS [HE ASSESSING OFFICER IS NOT TO E XAMINE WHETHER THE UNITS ARE ESTABLISHED BY SPLITTING UP OR RECONSTRUCTION OF A BUSINESS ALREADY IN EXISTENCE THUS THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80- IB OF THE ACT IN RESPECT OF CATTLE FEED PLANT SET UP IN A Y. 1993-94 AND 1997-9 8 AS REGARDS UNITS SET UP A V 2004-05 THE DEDUCTION HAS BEEN DENIED ON A TECHNIC AL GROUND NAMELY THAT THE AUDIT REPORT WAS NOT CORRECTLY FILED OR THAT SEPARA TE BALANCE-SHEET IS NOT TILED. IN OUR OPINION THESE ARE NOT THE VALID CONDITIONS SO AS TO DENY DEDUCTION U/S. 80-IB OF THE ACT. HON'BLE SUPREME COURT IN THE CASE OF TE XTILE MACHINERY CORPORATION LTD. (SUPRA) OBSERVED: 'THE TRUE TEST IS NOT WHETH ER THE NEW INDUSTRIAL UNDERTAKING CONNOTES EXPANSION OF THE EXISTING BUSI NESS OF THE ASSESSEE BUT WHETHER IT IS ALL THE SAME A NEW AND IDENTIFIABLE U NDERTAKING SEPARATE AND DISTINCT FROM THE EXISTING BUSINESS. THE FACT THAT THERE IS COMMON MANAGEMENT OR THE FACT THAT SEPARATE ACCOUNTS ARE NOT MAINTAINED DOES NOT LEAD TO THE CONCLUSION THAT THEY ARE NOT SEPARATE UNDERTAKING' HON'BLE SUPREME COURT IN THE CASE OF CIT V. INDIAN ALUMINIUM CO LTD. [1977) 108 ITR 367 (SC) OBSERVED: 'A SUBSTANTIAL EXPANSION OR EXTENSION OF AN EXISTING U NDERTAKING OR A NEW UNIT IN THE VICINITY OR AT A DIFFERENT PLACE TO MANUFACTURE THE SAME PRODUCT WHICH IS PRODUCED IN AN EXISTING BUSINESS MAY QUALIFY FOR R ELIEF UNDER THIS SECTION AS A NEW INDUSTRIAL UNDERTAKING AND MAY NOT BE REGARDED AS RECONSTRUCTION OF A BUSINESS ALREADY IN EXISTENCE'. THERE IS NO CONDITI ON THAT SEPARATE ACCOUNTS SHALL BE MAINTAINED OR SEPARATE BALANCE-SHEET SHOULD ALSO BE PREPARED. WHAT IS ALL PRESCRIBED IS THAT THE PROFIT SHOULD BE ARISEN FROM NEW INDUSTRIAL UNDERTAKING WHICH IS A SEPARATE AND DISTINCT UNIT. WE FIND THE PRODUCTION CAPACITY BY SETTING UP ADDITIONAL UNIT FOR PRODUCTION OF 210MT CAPACITY IS A SUBSTANTIAL EXPANSION AND CANNOT BE CONSIDERED AS SPLITTING UP OR RECONST RUCTION OF A BUSINESS ALREADY IN EXISTENCE. THERE IS NO BAR THAT THE NEW UNIT CAN NOT MANUFACTURE THE SAME PRODUCT. THUS THE ASSESSEE IS PRIMARILY ENTITLED T O CLAIM DEDUCTION U/S.80-IB OF THE ACT IN RESPECT OF ALL THE UNITS INCLUDING THE U NITS EARLIER SET UP. THE ASSESSEE SHALL FURNISH NECESSARY INFORMATION AS TO HOW THE PROFIT IS COMPUTED. THE ASSESSING OFFICER SHALL EXAMINE THE DETAILS AND ARR IVE AT THE AMOUNT ELIGIBLE FOR DEDUCTION U/S. 80IB OF THE ACT. THE ASSESSEE IS DIR ECTED TO FURNISH ALL NECESSARY INFORMATION INCLUDING CERTIFICATE FROM AN AUDITOR IF INSISTED BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPUTING ELIGIBLE PROFI T OF SUCH UNITS. ON THE BASIS OF INFORMATION FURNISHED THE ASSESSING OFFICER SHALL COMPUTE THE CLAIM AND GRANT DEDUCTION IN ACCORDANCE WITH LAW. 15. FOLLOWING THE AFORESAID ORDER OF THIS TRIBUNAL DATED 07.11.2007 WE RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TH AT THE ASSESSEE SHOULD COMPLY THE SIMILAR DIRECTION IN THE ASSESSMENT YEAR UNDER APPEAL. AFTE R EXAMINING THE CLAIM OF THE ASSESSEE THE ASSESSING OFFICER WILL ADJUDICATE THIS ISSUE AFRESH KEEPING IN VIEW THE DIRECTION OF THE TRIBUNAL IN THE ASSESSMENT YEAR 2004-05 AFTER GIVING OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 16. GROUND NO. 2 OF THIS APPEAL RELATES TO DENIAL O F DEDUCTION UNDER SECTION 80-IB CLAIMED ON BANAS-II DAIRY UNIT. THE FACTS RELATING TO CONTROVE RSY INVOLVED IN THIS GROUND OF APPEAL ARE THAT 6 BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEA LS) THE ASSESSEE RAISED AN ADDITIONAL GROUND WHICH READS AS UNDER :- THE A.O. ERRED IN LAW AND ON FACTS IN NOT GRANTING DEDUCTION U/S. 80IBFOR BANAS-II DAIRY UNIT THAT THE APPELLANT SHO ULD BE ALLOWED THE SAME AS ADMISSIBLE UNDER THE PROVISIONS OF THE ACT . 17. IN RESPECT OF THE AFORESAID GROUND THE ASSESSE E STATED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AS UNDER :- IN RESPECT OF THE CLAIM FOR DEDUCTION U/S. 80IB OF BANAS-II UNIT THE ASSESSEE HAD MENTIONED IN ITS STATEMENT OF TOTAL IN COME THAT THE SAME MAY PLEASE BE DETERMINED BY ASSESSING OFFICER. AT T HE SAME TIME WHILE FILING THE LETTER DATED 26.12.2007 WE HAD EN CLOSED THEREWITH COPIES OF UNIT-WISE PROFIT & LOSS A/C. AND THE CALC ULATION OF THE WORKING OF PROFIT FOR BANAS-I AND BANAS-II UNITS. W E HOWEVER SUBMIT THAT THERE WERE INADVERTENT MISTAKES IN THE CALCULA TION OF SUCH PROFIT DERIVED FROM BANAS-II DAIRY UNIT. WE ARE FILING STA TEMENT OF CALCULATION OF PROFIT U/S. 80IB IN RESPECT OF BANAS -II UNIT ALONGWITH FRESH AUDIT REPORT IN FORM NO. 10CCB FROM THE AUDIT ORS WHICH SHOWS THAT WE ARE ENTITLED TO DEDUCTION OF RS.53 45 637/- IN RESPECT OF OUR BANAS-II PLANT. THE SAID WORKING AND A FRESH AUDIT REPORT IN FORM 10CCB IN ORIGINAL ARE ATTACHED HEREWITH. 18. IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT IN THE RETURN FILED ON 30.10.2005 THE ASSESSEE HAS NOT CLAIMED DEDUCTION UNDER SECTION 80IB IN RESPECT OF BANAS-II DAIRY UNIT. IN FORM NO. 10CCB A UDIT REPORT IN RESPECT OF BANAS-II DAIRY UNIT WAS SUBMITTED TO THE A.O. VIDE SUBMISSION DATE D 27.02.2007 IN WHICH AUDITORS O.P. RATHI & COMPANY MENTIONED LOSS OF RS.2 81 79 145/- UNDER SECTION 80IB IN COLUMN 30 OF THE AUDIT REPORT. A STATEMENT WAS ALSO FILED WITH THE AUDIT R EPORT INFORMING HOW THE LOSS HAD BEEN CALCULATED. BEFORE THE A.O. THE ASSESSEE DID NOT B OTHER TO FILE THE REVISED RETURN BUT SUDDENLY WHEN THE APPELLATE PROCEEDINGS WERE ALMOST FINALIZE D AND THE ORDER WAS READY FOR SIGNATURES VIDE SUBMISSION DATED 28.08.2008 THE ASSESSEE INFORMED THAT BANAS-II DAIRY UNIT INCURRED PROFIT OF RS.2 13 82 549/- ELIGIBLE FOR DEDUCTION UNDER SECTI ON 80IB OF THE ACT. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALSO OBSERVED T HAT IN THE ASSESSMENT YEAR 2005-=06 THE ACCOUNTS FILED WITH THE RETURN AND AUDITED TWICE ON CE FOR FORM 3CD REPORT ANOTHER TIME FOR FORM 10CCB REPORT MAJOR LOSS OF RS.2 81 79 145/- WAS SH OWN WHICH MEANS THAT THE ASSESSEE HAS HAD LOSS ON AN AVERAGE. THE LEARNED COMMISSIONER OF INC OME TAX(APPEALS) IN THE IMPUGNED ORDER 7 REFUSED TO TAKE COGNIZANCE OF THE LATER REPORT AND DISMISSED THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE. 19. AGGRIEVED BY THIS ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE US. 20. BEFORE US THE LD. COUNSEL OF THE ASSESSEE CONT ENDED THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION DATED 07.11.2008 OF THE TRIBUNAL IN IT A NO. 1188/AHD/2008 IN ASSESSEES OWN CASE WHEREIN FOR THE ASSESSMENT YEAR 2004-05 THE TRIBUNAL IN PARA 11 AT PAGE 9 DIRECTED THE A.O. TO ALLOW THE DEDUCTION UNDER SECTION 80IB IN R ESPECT OF BANAS-II DAIRY UNIT. THE RELEVANT PORTION OF THE DECISION READS AS UNDER :- 11. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FI ND THAT THE ASSESSEE IS STATED TO HAVE SATISFIED THE REQUISITE CONDITIONS F OR CLAIMING DEDUCTION UNDER SECTION 80IB OF THE ACT IN RESPECT OF BANAS-I I DAIRY UNIT. THE DEDUCTION IS CLAIMED FOR PRODUCTION OF BUTTER & MIL K POWDER. SEPARATE FIGURES FOR PRODUCTION OF EACH SUCH ITEM IS AVAILAB LE SEPARATE IDENTIFIABLE EXPENSES ARE PROVIDED THREE AGAINST. MERE TECHNICAL ITIES LIKE CERTAIN INFORMATION IN AUDIT REPORT OR FILING AUDIT REPORT AFTER FILING RETURN OF INCOME BUT BEFORE COMPLETION OF ASSESSMENT PROCEED INGS ARE NOT TO COME IN A WAY OF CLAIMING DEDUCTION U/S. 80IB OF THE ACT . SINCE NO ERROR IN THE ORDER OF LD. C.I.T.(APPEALS) IS POINTED OUT THE MA TTER NEED NOT BE RESTORED BACK AS IT WILL AMOUNT TO GIVING A SECOND INNINGS T O THE ASSESSING OFFICER WHICH IS NOT PERMISSIBLE. SINCE NO INFIRMITY IN THE ORDER OF LD. C.I.T.(A) IS FOUND WE UPHOLD THE ORDER OF LD. C.I.T.(APPEALS) I N THIS REGARD. 21. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRES ENTATIVE POINTED OUT THAT DEDUCTION UNDER SECTION 80IB IN RESPECT OF THIS PLANT WAS NOT CLAIM ED BEFORE THE A.O. THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) RIGHTLY REFUSED TO ADMIT THE FRESH FORM NO. 10CCB FOR BANAS-II DAIRY UNIT. THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS) IN THE IMPUGNED ORDER RIGHTLY REFUSED TO ADMIT THE ADDITIONAL GROUND. THE REFORE THE VIEW TAKEN BY THE HIM BE UPHELD. 22. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AU THORITIES BELOW. IT IS NOT KNOWN THAT WHAT IS THE INITIAL YEAR. AS PER DECISION OF HON'BLE ITA T IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 (SUPRA) THE ASSESSEE IS ENTITLED TO D EDUCTION UNDER SECTION 80IB IN RESPECT OF BANAS-II DAIRY UNIT. HOWEVER THE DECISION OF TRIBU NAL FOR THE ASSESSMENT YEAR 2004-05 WAS 8 DELIVERED ON 07.12.2008. THE LEARNED COMMISSIONER O F INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER ON 24.01.2008. OBVIOUSLY THE DECISIO N OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2004-05 WAS NOT AVAILABLE WHEN THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER. IN VIEW OF THIS WE RESTORE THE MAT TER TO THE FILE OF A.O. WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH THE AUDIT REPORT A.O. WILL EXAMINE THE SAME. THE A.O. WILL ALSO EXAMINE WHEN THIS UNIT WAS SET UP AND CONSIDER THE ALLOWANCE OF DEDUCTION UNDER SECTION 80IB KEEPING IN VIEW THE DECISION DATED 07.11.2008 OF TH E TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 23. IN THE RESULT THE APPEAL OF THE DEPARTMENT IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED IN PART. THE ORDER PRONOUNCED IN THE COURT ON 26.02.2010 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26 / 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT 3) CIT(A) CONCERNED; (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.