HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 839 / 2008 Commissioner Of Income Tax Jaipur-II,Jaipur. Appellant Versus M/S Agarwal Marble Industries LTD. F-282-283, Road No. 9, Vki Area, Jaipur Respondent For Appellant(s) : Mr. K. D. Mathur on behalf of Mr. R. B. Mathur For Respondent(s) : HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 20/09/2017 1. By way of this appeal, appellant has challenged judgment and order of Tribunal whereby Tribunal has dismissed appeal of department. 2. This court while admitting appeal on 18.02.2009 framed
the following question of law:- Whether in facts and circumstances of case, assessee is entitled for benefit of deductions u/s. 801/1A when admittedly assessee is not involved in any manufacturing activity and is only engaged in cutting and polishing of marble and granite? 3. facts of case are that Assessing Officer issued notice u/s. 154 for rectification on ground that MAT Credit u/s. 115 JA cannot be allowed before charging interest u/s. 234 B and 234 C of he Act. assessee did not submitted reply and after considering matter assessing officer passed order u/s. 154 of Act and did not allowed MAT credit u/s. 115 JA of Act before charging interest u/s. 234 and 234C of Act. 4. While considering matter as pointed out by counsel for respondent, Tribunal Para in 10,11 observed as under:-
The ld. Counsel for assessee,on other hand, while replying on order of CIT(A), firstly brought to our notice that as against original order passed by AO under Section 143(3), Revenue has raised ground of appeal regarding very action of AO in allowing deduction under Section 801A. Accordingly to him, in light of aforesaid stand of Revenue, which is pending for determination before this Tribunal in ITA No. 157/JP/2002, rectification order passed by AO was not sustainable. Consequently, he brought to our notice provisions of Section 154(1A) of Act and submitted that where matter has been considered and decided by way of apapeal against order of AO, then AO cannot exercise power of rectification in respect of such matter. He pointed out that quantum of deduction allowed under Section 801A in original assesssment proceedings has been subject-matter of dispute before CIT(A) and CIT(A) has already decided matter. In such circumstances, it was submitted by him that exercise of jurisidction under Section 154 by AO was not valid. Besides above, he also brought to our notice recent decision of Honble Supreme Court in case of CIT vs. Sesa Goa ltd., 271 ITR 331 (SC), wherein Honble Supreme Court has held that extraction and proceedings of iron ore need not be commercially new project. This decision was rendered in context of Section 801 of Act. It was pointed out by him that this decision of Honble Supreme Court does not throw debate as eligibility of assessee to claim deduction under Section 801(A) of Act. Even on this ground, it was pleaded by him that order of CIT(A) should be sustained. 11. We have considered rival submissions. It is observed that when original assessment was completed under Section 143(3), AO did not go into question as to whether activity of assessee amounts to manufacture in respect of which it would be entitled to deduction under Section 801A of Act. only issue was as to whether from gross total income on which deduction under Section 801 HHC has to be deducted. We have already extracted ground of Appeal of Revenue in ITA No. 157/JP/2002, which arises out of original order passed by AO under Section 143 (3). We fail to understand as to how Revenue has raised dispute with regard to question whether activities of assessee would amount to manufacture or not and as to whether assessee would be entitled to exemption under Section 801A of Act. Be that as it may. argument of ld. Counsel for assessee that in vew of provisions of Section 154(1A), AO cannot exercise powers under Section 154 cannot be would amount to manufacture or not enabling it to claim deduction under Section 801A was never decided by AO when he passed original order of assessment under Section 143(3). 5. We are in complete agreement with view taken by Tribunal. Hence no case is made out for interference. 6. issue is answered in favour of assessee against department. 7. appeal stands dismissed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. B.M.G./Gourav-44
Powered by TCPDF (www.tcpdf.org) Commissioner of Income-tax, Jaipur-II, Jaipur. v. Agarwal Marble Industries LTD