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TMI Blog2014 (3) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80IB of the Act." 2. While passing the impugned assessment order u/s.143(3) dated 18.12.2009, it was noted by the AO that the assessee firm, who is in the business of manufacturing of glasses having manufacturing unit at Daman, has obtained the license dated 3rd of June, 2004 from the Chief Inspector of factory. The assessee had claimed deduction u/s.80IB of RS.93,97,565/- for the assessment year under consideration. The AO has also noted that in assessee's own case for A.Y. 2005-06 claim of deduction u/s.80IB was rejected for the reason that license to the factory was issued on 3rd of June, 2004. In compliance, the assessee has submitted as under: "1. We would like to submit before your honour that for the A.Y. 2005-06 your goodself has rejected the assessee's claim for deduction u/s. 80IB for the only reason that the assessee has obtained factory license after 31.3.2004. Assessee has filed an appeal against the order passed by your goodself and the same is still pending before the honourable Commissioner of Income Tax (Appeals), Valsad. 2. Further, we would also like to submit before your honour that the industrial undertaking claiming deduction under section 80IB co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case for the year under consideration is same as that of the earlier year, respectfully following the order of the ITAT, Ahd. the AO is directed to grant benefits u/s.80-IB to the appellant as per the law. Thus this ground of appeal is allowed." 2.3 From the side of the assessee, learned AR has placed reliance on following two orders of the Tribunal pronounced in assessee's own case, listed below: "1. ITO Vs. M/s. Auto Tuff Safety Glass (ITA No.891/Ahd/2010, A.Y. 2006-07) ITAT 'A' Bench Ahmedabad order dated 11.02.2013. 2. Auto Tuff Safety Glass Vs. ITO (ITA No.1536/Ahd/2009, A.Y. 2005-06) ITAT 'D' Bench Ahmedabad order dated 28.08.2009 (Authored by my Respected Colleague) and held as under: "In view of the above, in our considered opinion to obtain factory license for getting deduction under Section 80IB is not a condition precedent. It is well settled position of law that a condition which has not been imposed by the legislature for granting certain deductions cannot be imposed by any other authority. In the instant case the production commenced before 31.03.2004 may not be a legal production under the Factories Act but for same consequence will lie under the Factori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nounced in assessee's own case. Firstly on this basis, we hereby affirm the relief granted by the learned CIT(A). 4.1 As far as the decisions cited by the learned DR are concerned, we have noted that in the case of Santoshi Polymers ITAT 'B' Bench had not decided the issue against the assessee but restored the matter back to the file of the AO to be decided afresh in the light of the decision of Hon'ble Gujarat High Court pronounced in the case of Jolly Polymers (supra). We have examined the decision of M/s. Jolly Polymers (supra) pronounced by the Hon'ble Gujarat High Court and thereupon we have noted that there were two issues raised before the Hon'ble Court out of which the issue which is in hand was as per question of law no. (B) reproduced below: "B- Whether the Tribunal was right in law as well as in facts in upholding the assessee's claim of deduction under Section 80IB of the Act when application for license to run the factory was made to the Factory Inspector prior to 31.3.2004 but the actual license was granted only after the said dated?" 4.2 On this issue, the Hon'ble High Court has opined as follows: "23. We are conscious that that besides the Factories Act, outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1622 of 2012, as under:: "By the impugned order, the Tribunal upheld the finding of the CIT(A) holding that the Respondent-assessee is entitled to the benefit of Section 80IB of the Income Tax Act, 1961 (the said Act). The objection of the Revenue is that as the factory license was granted on 3rd May, 2005, it cannot be said that the Respondent-Assessee had commenced manufacturing activity prior to cut off date 31st March, 2004. In the impugned order, the Tribunal relied upon its decision in the matter of ITO Vapi V/s. Samarth Health Care in ITA No.1006/Ahd/2009 dated 5th June, 2012 and allowed the claim for deduction under Section 80IB of the said Act. The Tribunal came to finding of fact in the above case that the Assessing Officer did not doubt about raw material consumption, power consumption, sales and employment of workers for the purposes of denying the benefit of Section 80IB of the said Act. It was further held that for the purpose of Section 80IB of the said Act, what is essential is that the assessee should manufacture or produce an article or thing and if there is any violation of any provisions of any other statutes then the assessee has to explain the same to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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