Zephyr Blomedicals, Panaji V. Asst. Commissioner of Income Tax, Central Circle-1(1), Panaji

CO 25/PAN/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1079 (ITAT-PANAJI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANGARI LD
• Assessee Lawyers: MANJUNATH HEGDE
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, HON'BLE ACCOUNTANT MEMBER ITA N O . 331 /PNJ/2 013 : (A.Y 2006 - 07 ) ACIT, CIRCLE - 1(1), PANAJI ( APPELLANT) VS. M/S. ZEPHYER BIOMEDICALS, PLOT NO. 13, SAGAR SOCIETY, DONA PAULA, PANAJI PAN : AAAFZ1800B (RESPONDENT) CO NO. 25/PNJ/2014 (IN ITA N O . 331 /PNJ/2 013) : (A.Y 2006 - 07 ) M/S. ZEPHYER BIOMEDICALS, PLOT NO. 13, SAGAR SOCIETY, DONA PAULA, PANAJI (CROSS OBJECTOR) PAN : AAAFZ1800B VS. ACIT, CIRCLE - 1(1), PANAJI ( RESPONDENT) ASSESSEE BY : MANJUNATH HEGDE, CA REVENUE BY : M.R. BANGARI, LD. DR DATE OF HEARING : 08 / 06 /201 5 DATE OF PRONOUNCEMENT : 08 / 06 /201 5 O R D E R PER GEORGE MATHAN : 1. ITA NO. 33 1 /PNJ/2013 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), PANAJI IN APPEAL NO. 144/PNJ/2008 - 09 DT. 28.8.2013 FOR A.Y 2006 - 07. CO NO. 25/PNJ/2014 IS CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUES APPEAL IN ITA NO. 33 1 /PNJ/2013. SHRI M.R. BANGARI, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI MANJUNATH HEGDE, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 2 ITA NO. 331/PNJ/2013 & CO NO. 25/PNJ/2014 (A.Y : 2006 - 07) 2. IT WAS SUBMITTED BY THE LD. DR ON BEHALF OF THE REVENUE THAT IN THE COURSE OF THE ASSESSMENT IT WAS NOTICE D THAT THE ASSESSEE IS DEALING IN DIAGNOSTIC PRODUCTS AND HAD NOT DEDUCTED TDS U/S 195 ON THE PAYMENT OF COMMISSION TO ONE SHRI HARIZANTO SUPUNGKAT FOR THE SALE OF DIAGNOSTIC DEVICES MANUFACTURED BY THE ASSESSEE WHICH HAD BEEN SOLD OUTSIDE INDIA. IT WAS T HE SUBMISSION THAT AS NO TDS HAD BEEN DEDUCTED U/S 195, THE PROVISIONS OF SEC. 40(A)(IA) HAD BEEN INVOKED. IT WAS THE SUBMISSION THAT ON APPEAL, THE LD. CIT(A) HAD DELETED THE ADDITION. IT WAS THE SUBMISSION THAT IN VIEW OF THE INTRODUCTION OF EXPLANATIO N (2) TO SEC. 195, TDS WAS LIABLE TO BE DEDUCTED AND AS THE SAME HAD NOT BEEN DONE, DISALLOWANCE MADE BY INVOKING PROVISIONS OF SEC. 40(A)(IA) WAS LIABLE TO BE RESTORED. 3. IN REPLY, THE LD. AR SUBMITTED IN THE COURSE OF THE CROSS OBJECTION THAT THE ASSES SEE HAS SPECIFICALLY RAISED THE ISSUE OF THE CLAIM OF DEDUCTION U/S 80IB. IT WAS THE SUBMISSION THAT DURING THE RELEVANT ASSESSMENT YEAR THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S 80IB IN RESPECT OF THE DISALLOWANCE MADE U/S 40(A)(IA) AS IT FORMS PART OF THE BUSINESS PROFITS OF THE ELIGIBLE UNDERTAKING. FOR THIS PROPOSITION, HE PLACED RELIANCE ON THE DECISION OF THE MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF S.B. BUILDERS & DEVELOPERS REPORTED IN 136 TTJ 420 (BOM). IT WAS THE SUBMISSION THAT HE HAD NO OBJECTION IF THE ISSUE WAS RESTORED TO THE FILE OF THE AO FOR EXAMINING THE ELIGIBILITY FOR DEDUCTION U/S 80IB AND ALLOWANCE THE SAME. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ASSESSEE HAS RAISED A NEW CLAIM OF DEDUCTION U /S 80IB, THE ISSUE IN THIS APPEAL IS RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AND EXAMINATION AS TO THE ALLOWABILITY OF THE DEDUCTION U/S 80IB AND ALLOWANCE OF THE SAME IF FOUND ELIGIBLE. 3 ITA NO. 331/PNJ/2013 & CO NO. 25/PNJ/2014 (A.Y : 2006 - 07) 5. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 08/06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 0 9 /06/ 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 4 ITA NO. 331/PNJ/2013 & CO NO. 25/PNJ/2014 (A.Y : 2006 - 07) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 08/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 09/06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER /06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER /06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 9 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 08/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 0 9 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER