Income Tax Appeal v. Malborough Polychem (P) Ltd

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN J U D G M E N T INCOME TAX APPEAL No. 116 of 2006C I T JODHPUR V/S MALBOROUGH POLYCHEM (P) LTD Date of Judgment : 25.9.2008 PRESENTHON'BLE SHRI N P GUPTA,J.HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr.K.K.Bissa, for the appellant. Mr.Sanjeev Johari, for the respondent. This appeal of the Revenue has been admitted videorder dated 6.11.2006 by framing the following substantialquestion of law:- “Whether the assessee is entitled toclaim deduction under Section 80Hh aswell as under Section 80I both inrespect of the industrial unit run byit?” The perusal of the judgment of the learned Tribunal, so far as it relates to this question, shows thatthe learned Tribunal has decided the appeal by relying uponjudgment of this Court in C.I.T. Vs. Chokshi Contacts (P) Ltd., reported in (2001) 166 CTR (Raj.) 383, equivalent to251 ITR 587, and has also relied upon the judgment to thesame effect of Madhya Pradesh High Court in I.T.A.No.92/99,S.L.P. against which has been dismissed by Hon'ble theSupreme Court. We have gone through the judgment in ChokshiContacts' Case, and find that, that judgment does fullycover the controversy involved in the present case againstthe Revenue as decided by the Tribunal. Learned counsel for the appellant tried to makeout a distinction, to the effect, that since in the presentcase, assessee factory came into production only after1.4.90, deduction under Section 80HH could not be claimed.It would suffice to say, that the learned Commissioner inpara 3.2 has clearly found, that the assessee has beenmanufacturing quick lime w.e.f. 1.8.89 i.e. before 1.4.90,to which effect, the assessee was given certificate byDistrict Industries Department, Jodhpur. The production ofhydrated lime was started after 1.4.90, but it was found bythe Commissioner, that it does not make any difference withregard to entitlement of deduction under Section 80HH,because the assessee has started production of quick limebefore 1.4.90. In the appeal before the Tribunal, thisaspect about availability of deduction under Section 80HHhas been decided by the learned Tribunal, on the ground, that such deduction was never denied to the assessee in theearlier assessment years, so much so, that in immediatelypreceding year, being 1996-97, despite the fact that theassessment was made under Section 143(3), the deduction wasallowed. In that view of the matter, it was found that theprinciple of consistency requires, that the view taken bythe department in the preceding years should not bedisturbed, unless there is a change in the factual andlegal position. In our view, the reasonings given by the learnedTribunal are correct, and sound, and the assessee cannot bedenied the benefit of Section 80HH, which is being given bythe department all through. Therefore, the contention ofthe learned counsel for the appellant about non-availability of benefit of Section 80HH cannot be accepted. Thus, since the controversy is covered by thejudgment of this Court in Chokshi Contacts' case above,against the Revenue, the question as framed is answeredaccordingly against the Revenue. The appeal is, therefore,dismissed. (KISHAN SWAROOP CHAUDHARI),J. (N.P.GUPTA),J.