Itxa/134/2009 Of The Commissioner Of Income Tax- 8, Mumbai v. M/S. Fateh Granite Pvt. Ltd

Mr. Surekh Kumar with Mr. P.S.Sahadevan for theAppellant. Mr. S.N. Inamdar with Mr.A.K. Jasani for the Respondent. CORAM : F.I.REBELLO & R.S.MOHITE, JJ.DATE : 2ND MARCH, 2009. ORAL ORDER : allowed the claim of the assessee under Section-10-B of the Act. 2. Revenue aggrieved by the order of the CIT(A)directing the Assessing Officer to allow deduction interms of Section 10-B of the Act read with provisothereof preferred an appeal to the learned Tribunal andrelied on the judgment of the Rajasthan High Court inthe case of Arihant Tiles and Marbles Pvt. Ltd. Vs.Income Tax Officer reported in [2007] 295 ITR 148 (Raj)and dismissed the appeal preferred by the revenue.Revenue is in appeal against the said order and the questions have been formulated for the determination of this court. 3. The Tribunal noted the contentions advanced by theparties. The Commissioner in exercise of his powersunder Section 264 of the Income Tax Act had allowed thesaid deduction. The Assessing Officer thereafter forthe assessment year 2002-03 had also allowed deduction.Inspite of these orders, the Assessing Officer inrespect of the assessment year 2003-04 has disallowedthe same. The learned Tribunal noted that thoughconcept of res judicata is not applicable to the fiscalstatute, the doctrine of consistency as contended issquarely applicable to the facts of the present case.In other words, it held that as revenue for the previousassessment year has accepted the claim of the assessee,it would not be open to revenue unless there is change of facts or change of law to take a different view, more so, after the order passed by the Commissioner. relevant would be as set out in Para-5.1(a) which reads as under. for the purpose of Section 80-IB was pleased to holdthat the activity namely sawing of marble blocks andsubsequent activities of cutting and polishing, willfall within the meaning of the expression " production" and therefore, assessee was entitled to benefit under Section 80-IB. . The expression "Manufacture or "Production" aredifferent expressions and the word "production" has awider meaning as explained by the Apex Court Sesa GoaLtd. (supra). In our opinion, the word productionunder Section 10-IB considering similar expression inSection 80-IB will have to be given this wider meaning.Considering that the expressions are not defined in theAct but the expressions are used in the same Act. Theonly difference between Section 80-IB and Section 10-Bis that Section 10-B applicable to a 100% exportoriented unit, whereas Section 80-IB can be in respectof any unit. In our opinion, therefore, the expressionproduction will have the same meaning as in Seas Goa Ltd. (supra) and consequently, the question framed is devoid of merits. 7. On behalf of the revenue the learned counsel soughtto contend that they had also raised an issue that theassessee had not complied with the other predicates toavail the benefit of section 10-B. We do not find suchan issue was raised before the ITAT. The question inAppeal to this court must arise from the order of the ITAT. In these circumstances, in our opinion, the oral submissions sought to be advanced cannot be sustained. aspect. We find no merit in this appeal and accordingly, the same is dismissed. (R.S. MOHITE, J.) ( F.I. REBELLO, J.)