M/s. Fast Booking India (P) Ltd., New Delhi V. DCIT, New Delhi

CO 125/DEL/2013

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 1871 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Section: 10B

Judgement Text

1 CO 105 & 145/DEL/2013 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE : JUDICIAL MEMBER ITA NO. 125 & 145/DEL/2013 ( OUT OF ITA NO. 116/DEL/2013 & 315/DEL/2012 ASSTT. YRS: 2009-10 & 2008-09) FAST BOOKING INDIA (P) LTD., VS. DCIT, CIRCLE 11(1 ), FLAT NO. 206, A-13, KAILASH COLONY, NEW DELHI. NEW DELHI. PAN: AAACF 9909 L ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI VED JAIN CA RESPONDENT BY : SHRI AMRIT LAL SR. DR DATE OF HEARING : 11/12/2015. DATE OF ORDER : 14/01/2016. O R D E R PER S.V. MEHROTRA, A.M: THESE CROSS OBJECTIONS ARE BEING HEARD IN PURSUANCE TO THE ORDER DATED 02-09-2015 OF THE HONBLE DELHI HIGH COURT IN ITA N O. 334 OF 2015, 338 OF 2015, 339 OF 2015 AND 342 OF 2015. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A 100% EXPORT ORIENTED UNIT, IN THE RELEVANT ASSESSMENT YEAR WAS ENGAGED IN THE BUSINESS OF SOFTWARE DEVELOPMENT AND WAS REGISTERED WITH THE SO FTWARE TECHNOLOGY PARK OF INDIA (STPI), NOIDA. THE ASSESSEE WAS DUL Y APPROVED BY THE JOINT DIRECTOR, TPI, MINISTRY OF COMMUNICATION AND INFORM ATION TECHNOLOGY, 2 CO 105 & 145/DEL/2013 GOVT. OF INDIA. IT FILED ITS RETURN OF INCOME FOR A Y 2008-09 AND 2009-10, DECLARING NIL INCOME AND CLAIMING DEDUCTION U/S 10B OF THE ACT IN RESPECT OF THE PROFIT DERIVED FROM EXPORT OF COMPUTER SOFTWARE . THE AO HAD DENIED THE ASSESSEES CLAIM U/S 10B. 3. THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A ). LD. CIT(A) FOLLOWING THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF VALIANT COMMUNICATION LTD. VS. DCIT (ORDER DATED 23.4.2010 IN ITA NO. 2706/DEL/2008), ALLOWED THE CLAIM OF THE ASSESSEE T HEREIN U/S 10B BY HOLDING THAT APPROVAL BY THE JOINT DIRECTOR, STPI W AS SUFFICIENT TO CLAIM THE DEDUCTION. WHILE THE DEPARTMENTS APPEALS WERE PEND ING, THE ORDER OF THE TRIBUNAL IN VALIANT COMMUNICATION LTD. (SUPRA) WAS CARRIED IN APPEAL BEFORE THE HONBLE DELHI HIGH COURT, WHEREIN IT WAS HELD T HAT FOR THE PURPOSE OF AVAILING THE BENEFIT OF SECTION 10B OF THE ACT, THE CLARIFICATION BY THE BOARD WAS MANDATORY AND THAT SUCH EXEMPTION COULD NOT BE GRANTED ON THE BASIS OF THE CERTIFICATE ISSUED BY THE JOINT DIRECTOR. THE DECISION IN THE CASE OF VALIANT COMMUNICATIONS LTD. WAS RENDERED ALONG WITH SIMILAR CASES INCLUDING REGENCY CREATIONS LTD. (2013) 353 ITR 32 6 (DEL.). THEREAFTER ASSESSEE FILED REVIEW PETITION IN THESE CASES ON TH E GROUND THAT THEY MAY NOT BE ENTITLED TO THE BENEFIT U/S 10B, BUT THEY SHOULD NOT BE DENIED THE BENEFIT U/S 10A AS THEY SATISFIED THE REQUIREMENTS FOR AVAI LING THE BENEFIT U/S 10A. THE HONBLE DELHI HIGH COURT ACCEPTED THE CONTENTIO N OF ASSESSEE AND HELD THAT HE CLAIM OF THE ASSESSEE U/S 10A WAS TO BE CON SIDERED. 4. ON THE BASIS OF THIS DECISION, THE ASSESSEE FILE D TWO CROSS OBJECTIONS BEFORE THE ITAT IN THE TWO PENDING APPEALS OF THE D EPARTMENT. THE TRIBUNAL 3 CO 105 & 145/DEL/2013 CONDONED THE DELAY IN FILING THE CROSS OBJECTIONS B UT DECLINED TO PERMIT THE ASSESSEE TO MAINTAIN THE CROSS OBJECTIONS BY FOLLOW ING THE DECISION OF THE COORDINATE BENCH OF THE ITAT IN ITO V. NEETEE CLOTH ING (P) LTD. [2010] 129 TTJ 342 (ITAT [DEL.]), ON THE GROUND THAT SINCE THE ASSESSEE HAD NOT URGED THE PLEA OF BEING ENTITLED TO THE BENEFIT U/S 10A O F THE ACT BEFORE THE CIT(A), IT COULD NOT BE PERMITTED TO URGE SUCH PLEA FOR THE FIRST TIME BEFORE THE ITAT. THE HONBLE DELHI HIGH COURT HELD THAT TH E TRIBUNAL WAS IN ERROR IN DECLINING TO EXAMINE THE CROSS OBJECTION FILED BY THE ASSESSEE. 5. IN VIEW OF THE DECISION IN THE CASE OF CIT VS. E DWARD KEVENTER (SUCCESSORS) PVT. LTD. 123 ITR 200 AND DECISION OF HONBLE SUPREME COURT IN NTPC VS. CIT 229 ITR 383, THE HONBLE DELHI HIGH COURT IN PARA 17 OBSERVED AS UNDER: 17. THE BASIS OF THIS COURT REMANDING THE MATTERS IN VALIANT COMMUNICATIONS LTD. CASES TO THE ITAT WAS PRECISELY TO CONSIDER WHETHER THE BENEFIT UNDER SECTION 10A COUL D BE GRANTED TO THOSE ASSESSEES NOTWITHSTANDING THAT THE Y MAY NOT BE ENTITLED TO THE BENEFIT UNDER SECTION 10B. IT WAS, THEREFORE, OPEN TO THE APPELLANT ASSESSEE HEREIN TO SEEK SUPPORT OF THE ORDER OF THE CIT(A) ON THE GROUND WHICH WAS NOT URGED BEFORE THE ERR (A) AS LONG AS IT WAS NOT GOING TO BE AD VERSE TO T HE CASE OR THE APPELLANT I.E. THE REVENUE BEFORE THE ITAT. THE ITA T IN CONSIDERING SUCH PLEA WAS NOT GOING TO BE PERSUADED TO COME TO A DIFFERENT CONCLUSION AS FAR AS THE APPEAL OF THE REVENUE PERTAINING TO THE BENEFIT UNDER SECTION 1013 OR THE ACT WAS CONCERNED. PARTICULARLY IN THE LIGHT OF THE ORDER P ASSED BY 'THIS JANUARY 2013 IN THE APPLICATIONS FILED BY VALIANT COMMUNICATIONS LTD., THERE SHOULD HAVE BEEN NO DIFF ICULTY FOR THE ITAT TO HAVE EXAMINED THE APPELLANT ASSESSEE'S CROSS OBJECTIONS. 4 CO 105 & 145/DEL/2013 6. LD. COUNSEL SUBMITTED THAT THE MATTER MAY BE RES TORED BACK TO THE FILE OF AO TO EXAMINE THE ASSESSEES CLAIM U/S 10A.LD. D R AGREED FOR THE SAME. 7. AS AGREED BY BOTH THE PARTIES, THE ISSUE IS REST ORED BACK TO THE FILE OF AO TO EXAMINE THE ASSESSEES CLAIM U/S 10A. 8. IN THE RESULT, THE CROSS-OBJECTIONS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCEMENT IN OPEN COURT ON 14/01/2016. SD/- SD/- (SUCHITRA KAMBLE ) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14/01/2016. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI.