TMI Blog2012 (2) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A), while agreeing with the views of the AO dismissed the assessee s appeal. 3. Being aggrieved by the order of the ld. CIT(A), the assessee is in appeal before us. 4. Ground No.1 reads as under : 1. BECAUSE the ld. CIT(A) has erred in law and in facts in upholding the order passed the AO even though it is barred by limitation having been passed and issued after the statutory time period. 5. At the time of hearing, the ld. Counsel for the assessee submits that since the assessment order dated 30.12.2009 was dispatched by the department on 1.1.2010 which was received on 2.1.2010 as per postal receipt appearing at page 562 of the assessee s paper book, therefore, the assessment order dated 30.12.2009 is barred by limitation as according to the Act the assessment order is required to be served by 31.12.2009. She further submits that the ld. CIT(A) has erred in observing that the assessment order has been passed on 31.12.2009 and the same has been dispatched under speed post on 30.12.2009. She further submits that since the assessment order was not passed within the time limit as prescribed under the Act, the order passed by the AO is barred by limitation and may be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period. (emphasis supplied) Respectfully following the same and in the absence of any material to show that the order passed by the AO was not made on 30.12.2009, we hold that the order passed by the AO was within the limitation and not barred by limitation. The plea taken by the learned counsel for the assessee is without any merit, and, hence, the same is rejected. 9.Ground No.2 reads as under : 2. BECAUSE the ld. CIT(A) has erred in law and in facts in upholding the AO s order even though it was wholly in violation of principles of natural justice since the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion the initial assessment year is 2005-06 for claim of deduction u/s 80IB, the same falls beyond the period (i.e. after 1.4.2004) and hence the deduction is not admissible u/s 80IB. The AO further noted that the assessee had made addition to assets during the year to the building and cooling unit which is claimed to be expansion of the existing cold storage facility. As per plan submitted to town plan authority the approval was taken for constructing three integrated facilities consisting of storage, cold storage and deep freezer which is interconnected and the assessee had completed only a part of the original plan. The complete integrated unit is still to be completed. The assessee has made another facility operational during the year and it has integrated the second facility with first having common infrastructure facility are interconnected and hence in his opinion all units are part of cold storage unit which is incomplete. The AO further observed that as per drawing plan there is one more facility yet to be integrated and thus cold storage facility is not completed as on date. The assessee could not furnish the break up of revenue related by the cold chain facility ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 2006-07) dated 11.2.2011 appearing at pages 228 to 230 of the assessee s paper book has allowed the similar claim to the assessee. She, therefore, submits that the assessee has fulfilled all the conditions as provided under the provisions of section 80IB(11) of the Act, therefore, the claim of the assessee be allowed. 15. On the other hand, the ld.DR while relying on the order of the AO and ld. CIT(A) further submits that since the AO for this year examined the issue in detail and held that the assessee is not entitled for deduction u/s 80IB (11) which has also been upheld by the ld. CIT(A), therefore, for the reasons as mentioned in the assessment year, the assessee is not entitled to the deduction u/s 80IB(11) of the Act and the order passed by the AO and confirmed by the ld. CIT(A) be upheld. 16. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the AO has allowed deduction u/s 80IB (11) for the assessment years 2004-05,2005-06 and 2006-07. Merely because the assessee has completed expansion of the existing cold chain plant b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed products which are of edible nature like Loni Box, Pulp, Paratha Box, Khawa etc. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the order of the Tribunal (supra) and keeping in view the rule of consistency, set aside the orders passed by the Revenue authorities on this account and send back the matter to the file of the AO to follow the order passed by the Tribunal (supra) and allow deduction u/s 80IB (11) of the Act as per directions given by the e Tribunal (supra) We hold and order accordingly. The grounds taken by the assessee are, therefore, partly allowed for statistical purposes. 17. Ground Nos.6 and 7 read as under : 6. BECAUSE the ld. CIT(A) erred in law and on facts in sustaining the disallowance of the claim of exemption u/s 80IB (11A) of the Act holding that the appellant has only traded in fruits and vegetables and not processed the same, ignoring the plethora of evidence filed in this regard. 7. BECAUSE ld. CIT(A) has erred in law and on facts in holding that all details as required in the report in Form 10CCB by the auditor have not been finished, thereby justifying the disallowance of deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO. 19. At the time of hearing, the ld. counsel for the assessee while reiterating the same submissions as submitted before the AO and the ld. CIT(A) in support of the assessee s claim u/s 80IB(11A), relied on the following documents appearing at pages 338 to 531 of the assessee s paper book:- i) A copy of process chart prepared and A copy of process chart prepared and explained by Shri. Harshad Doshi, Civil Engineer. ii) A copy of letter dated 9/11/2009 filed before the ld. ITO Ward 10(3)(3) mentioning the fact of visualizing the video shooting. iii) Copy of VAT audit report required under Maharashtra Value Added Tax Act, 2002 for iV) Copy of FPO License issued by the Government of India dated 17.12.2004. v) Copy of Trade Mark Certificate obtained under the Trade Mark Act, 1999 dated 28.10.2005. vi) Copy of FDA License issued by Foods and Drugs Administration of Maharashtra dated 19.7.2004. vii) Copy of packing material received for packing the processed fruits and vegetables. viii) Copies of ledger accounts for purchases made along with samples bills. ix)Copies of sample purchase bills with respect to purchase of fixed assets in respect of food di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia in pursuance of the national policy for handling, storage and transportation of food grains. Section 80-IB(11A) targets for relief for the business of processing preservation and packaging of fruits and vegetables as newly added from AY 2005-2006, while the relief has been available with effect from 1.4.2002 for all undertaking, which have begun to operate on or after 1st April, 2001 for any income from the integrated business of handling, storage and transportation of food grains using the very language of the policy. Both the construction as well as the preservation contract are subject to an agreement with Central or State Warehousing Corporation in pursuance of the policy and the other papers issued from time to time by the Government. Benefit of deduction under sub-section (11A) of section 80-lB has been extended with effect from 1.4.2010 that is AY 2010-2011 by the Finance (No.2) Act, 2009 to the business of processing, preservation and packaging of meat and meat products or poultry or marine or dairy products to the same extent and subject to the some conditions as prevailing in sub-section prior to this amendment. We further find that in the paper book, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of the ld. CIT(A), the ground taken by the assessee is, therefore, rejected. 26.Ground No.2 reads as under : 2. BECAUSE the ld. CIT(A) has erred in law and in facts in upholding the AO s order even though it was wholly in violation of principles of natural justice since the AO had failed to deal with the detailed submission made by the appellant on 12.8.2010 in response to his show cause notice dated 29.7.2010. 27.At the time of hearing, the ld. Counsel for the assessee submit that she does not want to press the above ground which was not objected to by the ld. DR. 28. That being so and in the absence of any other supporting materials placed on record by the learned counsel for the assessee, we reject the above ground taken by the assessee being not pressed. 29.Ground No.3,4,5 read as under : 3. BECAUSE, the ld.CIT(A) has erred in law and in facts in upholding the order passed the AO which disallowed the claim of exemption from tax u/s 80IB(11) of the Income Tax Act, 1961 which was a change of opinion from his predecessor (i.e.AO s). 4. BECAUSE, the ld. CIT(A) has erred in law and in facts in disallowing the claim of deduction u/s 80(IB)(11) although n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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