Commissioner Of Income Tax, Jaipur-Iii, Statue Circle, C-Schemejaipur v. Sh. Manoj Kumar Johari

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 59 / 2015 Commissioner of Income Tax, Jaipur-III, Statue Circle, C-SchemeJaipur. ---Appellants Versus Sh. Manoj Kumar Johari, Proprietor M/s. The Art Place, RamgarhShekhawati, Sikar (Raj.) ----Respondents _____________________________________________________ For Appellant(s) : Mr. Sameer Jain For Respondent(s) : Mr. Sanjay Jhanwar with Ms. Archana _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGHJudgment 05/09/2017 1. By way of this appeal, the appellant has assailed thejudgment and order of the tribunal whereby tribunal has partlyallowed the appeal of the assessee. 2.This court while admitting the appeal on 11.7.2016 framedfollowing substantial question of law:- “Whether the Tribunal was justified in thefacts and circumstances in allowing reliefof exemption u/s 10BA of the Act evenwhen the substantive and materialconditions which was prerequisite werenot fulfilled, on the basis of appellantsown case in A.Y. 2005-06 which wasbased on different point and is pendingin appeal before Hon’ble High Court u/s260A of the Act?” 3.The facts of the case are that the assessee is aproprietorship concern known as M/s. Art Palace which is claimedto be an industrial undertaking engaged in the manufacturing andexporting of handmade articles which requires the use of Wood asmain raw material. The sales are mainly export and small portionin India. The assessee was allowed 100% deduction from eligiblemanufacturing activities u/s 10BA of the Act in earlier years. 3.1A survey was carried out in the premises of the assessee on22.9.2008. Assessment for the year 2006-07 was framed by theAO on 12.12.2008 disallowing the assessee’s claim u/s 10BA ofthe Act. Assessment for the years 2007-08 & 2008-09 wereframed on similar lines by disallowing assessee’s claim u/s 10BA ofthe Act. 4.Counsel for the appellant contended that in view of thedecision of this Court in ITA No. 113/2012 & 114/2012 (CITJaipur-III vs. Manoj Kumar Johari) decided on 29.8.2017 whereinit has been held as under:- “By way of the appeals, the appellant hasassailed the judgment and order of theTribunal whereby the Tribunal has dismissedthe appeals. This Court while admitting the matter framedthe following question of law:- In DBITA No. 113/2012 & In DBITA No.114/2012 “Whether the Tribunal was justified in thefacts and circumstances in allowing relief ofexemption under Section 10BA of the Act even when the substanttive and materialconditions which was pre-requisite were notfulfilled, on the basis of appellants own casein A.Y. 2005-2006 which was based ondifferent point and is pending in appealbefore Hon’ble High Court u/s 260A of theAct?” Counsel for the appellant contended that theTribunal has seriously committed an error inconfirming the order of CIT(A) and wronglyreversed the view taken by the AO. Counsel for the respondent has relied uponthe decision of this Court in case of CIT vs.Manoj Kumar Johri in Tax Appeal No.243/2011 decided today wherein it has beenobserved as under:- In DBITA No. 113/2012 & In DBITA No.114/2012 “Whether the Tribunal was justified in thefacts and circumstances in allowing relief ofexemption under Section 10BA of the Act even when the substanttive and materialconditions which was pre-requisite were notfulfilled, on the basis of appellants own casein A.Y. 2005-2006 which was based ondifferent point and is pending in appealbefore Hon’ble High Court u/s 260A of theAct?” Counsel for the appellant contended that theTribunal has seriously committed an error inconfirming the order of CIT(A) and wronglyreversed the view taken by the AO. Counsel for the respondent has relied uponthe decision of this Court in case of CIT vs.Manoj Kumar Johri in Tax Appeal No.243/2011 decided today wherein it has beenobserved as under:- “Before proceeding with the matter, whetherthe Tribunal was right in setting aside theorder under Section 263 which has beenpassed by the CIT(A), that question hasbeen considered by the Tribunal in AppealNo.243/2011 and the same was argued byMr. Sameer Jain. The Tribunal whilediscussing the issue has relied upon differentdecisions of the High Court and afterconsidering in detail has come to theconclusion that while invoking the provisionsunder Section 263 of the Act, theassessment order is prejudicial to theinterest of revenue. The subsequentproceedings which took place on 24.09.2008could not be relied upon. Taking support ofSection 263 (1)(b), the concept of record isthe record which was available with the A.O.at the time of assessment. If the contentionwhich has been raised by Mr. Jain is takeninto consideration, no assessee will beassessee. If the subsequent events to theassessment order is taken into considerationthen the scope of Section 263 will beenlarged. In that view of the matter, we are of theopinion that the record which was availablewith the A.O. is required to be taken intoconsideration and the tribunal whileconsidering the matter has taken intoconsideration the seven documents, moreparticularly D.L.C. Certificate which could beprocured easily and the other documentslike export licence which has been granted w.e.f. 02.09.2002 and registration certificategranted by C.T.O. w.e.f. 26.08.2002. He hasalso produced the muster roll register. In that view of the matter, the tribunal hasconsidered the complete facts in detail. Itwill not be appropriate to re-appreciate thefacts, more particularly when the tribunalhas observed that the discussion which hasbeen done by the A.O. have not beenspecifically rebutted by the Department. In that view of the matter, we are of theopinion that the view taken by the Tribunalis just and proper. The issue is required tobe answered in favour of the assesseeagainst the department.” 5.In view of the above, the issue is answered in favour of the assessee and against the department. 6.The appeal stands dismissed. (INDERJEET SINGH)J. (K.S.JHAVERI)J. Brijesh 78.