The Commissioner Of Income Tax ... App v. M/S. Metro Thermoformers

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO. 3409 OF 2008 The Commissioner of Income Tax ... Appellant The Commissioner of Income Tax ... App The Commissioner of Income Tax ... App Versus M/s. Metro Thermoformers ... Respondent ALONGWITH ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3411 OF 2008 INCOME TAX APPEAL (L) NO. 3411 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Sun Media Technologies ... Respondent ALONGWITH ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3414 OF 2008 INCOME TAX APPEAL (L) NO. 3414 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Sun Media Technologies ... Respondent ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3416 OF 2008 INCOME TAX APPEAL (L) NO. 3416 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Microsin Corporation ... Respondent ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3417 OF 2008 INCOME TAX APPEAL (L) NO. 3417 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Microsign Corporation ... Respondent ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3418 OF 2008 INCOME TAX APPEAL (L) NO. 3418 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Metro Thermoformers ... Respondent ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3419 OF 2008 INCOME TAX APPEAL (L) NO. 3419 OF 2008 The Commissioner of Income Tax ... Appellant Versus ALONGWITH ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3420 OF 2008 INCOME TAX APPEAL (L) NO. 3420 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Metro Thermoformers ... Respondent ALONGWITH ALONGWITH ALONGWITH INCOME TAX APPEAL (L) NO. 3421 OF 2008 INCOME TAX APPEAL (L) NO. 3421 OF 2008 The Commissioner of Income Tax ... Appellant Versus M/s. Microsign Corporation ... Respondent Mr.P.S. Sahadevan for the Appellant. Mr. P.J. Pardiwala, Sr. Counsel with Mr.A.K. Jasani for Respondent. CORAM: F.I. REBELLO, & R.S. MOHITE, JJ. DATED: FEBRUARY 17, 2009 P.C. P.C. . All these appeals are disposed of by this common order. The appeal raises the following questions : (i) Whether on the facts and in the circumstances of the case, the Hon’ble Tribunal was right in law in allowing the assessee’s claim of deduction u/s. 80IB of Rs.42.53 lac. when it was clearly established that the assessee failed to satisfy the conditions prescribed in that section relates to employment of minimum number of workers? (ii) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right i law in preferring to rely on secondary evidence and discarding primary evidence in the form of attendance register recorded during search? (iii) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law in failing to appreciate the clear findings of Ld.CIT (A) and also failing to appreciate the judicial decision of the Hon’ble Supreme Court in the case of Sumati Dayal Vs. CIT 214 ITR 801 applies to the present case? (iv) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law in upholding assessee’s contention tht no interest u/s. 234B is payable as the assessments were completed u/s. 153A and no interest u/s. 234B was payable as per intimation u/s. 143(1) on the return originally filed u/s. 139(1) and thus deleting the interest of Rs.15.25 lac? (v) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law in not correctly appreciating the provisions of section 234B especially sec. 234B(2), 234B(3) and also decision of the Hon’ble Supreme Court in the case of Sumati Dayal Vs. CIT 214 ITR 801 applies to the present case? (iv) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law in upholding assessee’s contention tht no interest u/s. 234B is payable as the assessments were completed u/s. 153A and no interest u/s. 234B was payable as per intimation u/s. 143(1) on the return originally filed u/s. 139(1) and thus deleting the interest of Rs.15.25 lac? (v) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law in not correctly appreciating the provisions of section 234B especially sec. 234B(2), 234B(3) and also Explanation 2 there under, which states regular assessments includes assessment completed under the provisions of section 143 or 153A of the I.T. Act, if it is made for the 1st time, and thus arriving at conclusion that there is no default u/s. 234B(1)?" . By a separate order passed in Income Tax Appeal No. 1306 of 2008 on 16.2.2009, we have answered the issue in favour of the assessee and against the Revenue. For the same and similar reasons set out therein, these appeals preferred by the Revenue are dismissed. (R.S. MOHITE, J.) (R.S. MOHITE, J.)(F.I. REBELLO,J.) (R.S. MOHITE, J.) (F.I. REBELLO,J.)