TNQ Books & Journals Private Limited, CHENNAI V. DCIT, CHENNAI

CO 76/CHNY/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4246 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V RA VICHANDRAN
• Assessee Lawyers: P RADHAKRISHNAN
• Keywords: Reopening of assessment; Revised return
• Section: 143(3); 10B; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.901/MDS/2016 & C.O. NO.76/MDS/2016 (IN I.T.A. NO.901/MDS/2016) ( )( / ASSESSMENT YEAR : 2008-09 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(1), CHENNAI - 600 034. V. M/S TNQ BOOKS AND JOURNALS PVT. LTD ., NO.4/600, 4/197, PHASE II, VSI ESTATE, KOTTIVAKKAM, CHENNAI - 600 041. PAN : AABCT 3050 B (+,/ APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) +, - . / APPELLANT BY : SH. P. RADHAKRISHNAN, JCIT /0+, - . / RESPONDENT BY : SH. V. RAVICHANDRAN, CA 1 - 2% / DATE OF HEARING : 13.06.2016 3') - 2% / DATE OF PRONOUNCEMENT : 01.09.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 11, CHEN NAI, DATED 27.01.2016 AND PERTAINS TO ASSESSMENT YEAR 2008-09. THE 2 I.T.A. NO.901/MDS/16 C.O. NO.76/MDS/16 ASSESSEE HAS FILED CROSS-OBJECTION AGAINST THE VERY SAME ORDER OF THE CIT(APPEALS). THEREFORE, WE HEARD BOTH THE APP EAL AND THE CROSS-OBJECTION TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. SH. P. RADHAKRISHNAN, THE LD. DEPARTMENTAL REPRE SENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 10A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AN D NO DEDUCTION WAS CLAIMED UNDER SECTION 10B OF THE ACT. ACCORDIN G TO THE LD. D.R., SINCE THE APPROVAL WAS GRANTED BY THE DIRECTO R, SOFTWARE TECHNOLOGY PARKS OF INDIA AND NOT BY THE BOARD, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 10B OF THE ACT. THE CIT(APPEALS), HOWEVER, FOUND THAT FOR THE ASSESSMEN T YEAR 2009- 10, THIS TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSEE BY PLACING RELIANCE ON THE MINISTRY OF INFORMATION & TECHNOLOG YS LETTER DATED 22.03.2012 STATING THAT RATIFICATION WAS NOT REQUIR ED FROM THE FROM THE BOARD IN THE ASSESSEE'S CASE. ACCORDINGLY, A SIMILAR ORDER OF THE CIT(APPEALS) WAS FOUND TO BE CONFIRMED BY THIS TRIBUNAL. THEREFORE, ACCORDING TO THE LD. D.R., THE CIT(APPEA LS) DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION UNDER SECTION 10B OF THE ACT. 3 I.T.A. NO.901/MDS/16 C.O. NO.76/MDS/16 3. REFERRING TO THE GROUNDS OF APPEAL, THE LD. DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT NO ALTERNATIVE CLAIM WAS MADE BY THE ASSESSEE IN THE FORM OF REVISED RETURN. THEREFORE, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) OUGHT NOT TO HAVE ALLOWE D THE CLAIM OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. 4. ON THE CONTRARY, SHRI V. RAVICHANDRAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSING OFFICER REOPENED THE ASSESSMENT WITHOUT ANY MATERIA L AVAILABLE ON RECORD. THE ASSESSEE, ACCORDING TO THE LD. REPRESE NTATIVE, IS ENGAGED IN THE BUSINESS OF EXPORT OF SOFTWARE AND I T ENABLED SERVICES. THE ASSESSING OFFICER COMPLETED THE ASSE SSMENT INITIALLY UNDER SECTION 143(3) OF THE ACT ON 20.12.2010 AFTER ALLOWING DEDUCTION UNDER SECTION 10B OF THE ACT. SUBSEQUENT LY THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUIN G NOTICE UNDER SECTION 148 OF THE ACT. ACCORDING TO THE LD. REPRE SENTATIVE, THE ASSESSING OFFICER, IN FACT, WITHDREW THE DEDUCTION ALLOWED UNDER SECTION 10B OF THE ACT IN THE INITIAL ASSESSMENT. WHEN THE REOPENING OF ASSESSMENT WAS CHALLENGED BEFORE THE C IT(APPEALS), THE CIT(APPEALS) FOUND THAT REOPENING OF ASSESSMENT WAS JUSTIFIED. HOWEVER, ACCORDING TO THE LD. REPRESENTATIVE, ON ME RIT, THE 4 I.T.A. NO.901/MDS/16 C.O. NO.76/MDS/16 CIT(APPEALS) FOUND THAT AN IDENTICAL CLAIM OF THE A SSESSEE UNDER SECTION 10A WAS ALLOWED BY THIS TRIBUNAL, THEREFORE , HE ALLOWED THE CLAIM OF THE ASSESSEE ON MERIT. ACCORDING TO THE L D. REPRESENTATIVE, THE ASSESSEE FILED CROSS-OBJECTION CHALLENGING THE REOPENING OF ASSESSMENT. THE ASSESSING OFFICER HAS NOT FURNISHE D A COPY OF THE REASON FOR REOPENING, THEREFORE, THE REOPENING IS N OT JUSTIFIED. EVEN ON MERIT, ACCORDING TO THE LD. REPRESENTATIVE, THE CIT(APPEALS) BY FOLLOWING THE ORDER OF THIS TRIBUNAL IN THE ASSESSE E'S OWN CASE, ALLOWED THE CLAIM OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMP LETED ON 30.12.2010 DETERMINING THE TOTAL TAXABLE INCOME AT ` 1,56,82,000/- AFTER RESTRICTING THE DEDUCTION UNDER SECTION 10B O F THE ACT TO THE EXTENT OF ` 5,23,71,495/-. SUBSEQUENTLY THE ASSESSING OFFICER FOUND THAT THE INCOME OTHERWISE CHARGEABLE TO TAX ESCAPED ASSESSMENT BY WAY OF ALLOWING DEDUCTION UNDER SECTION 10B OF T HE ACT. THE ASSESSING OFFICER FOUND THAT FOR ALLOWING DEDUCTION UNDER SECTION 10B OF THE ACT, RATIFICATION OF THE BOARD FOR EOU S CHEME IS REQUIRED. ACCORDINGLY, AFTER REOPENING, THE ASSESSING OFFICER DISALLOWED THE 5 I.T.A. NO.901/MDS/16 C.O. NO.76/MDS/16 CLAIM OF THE ASSESSEE UNDER SECTION 10B OF THE ACT. ON FURTHER APPEAL, THE CIT(APPEALS) FOUND THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 10A OF THE ACT. 6. THE CIT(APPEALS) FOUND THAT STPI APPROVAL WAS RE NEWED AND THE SAME WAS INFORMED TO THE ASSESSING OFFICER BY LETTER DATED 05.03.2014. THE CIT(APPEALS) FURTHER FOUND THAT FO R THE ASSESSMENT YEAR 2009-10, A SIMILAR DEDUCTION UNDER SECTION 10A OF THE ACT WAS ALLOWED BY THE CIT(APPEALS) WHICH WAS F URTHER CONFIRMED BY THIS TRIBUNAL. ACCORDINGLY, THE CIT(A PPEALS) ALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 10A OF THE ACT ALTERNATIVELY. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHE N THE STPIS APPROVAL WAS INFORMED TO THE ASSESSING OFFICER BY L ETTER DATED 05.03.2014 AND SIMILAR DEDUCTION UNDER SECTION 10A OF THE ACT WAS GRANTED BY THIS TRIBUNAL FOR ASSESSMENT YEAR 2009-1 0, THE CIT(APPEALS) BY RIGHTLY PLACING RELIANCE ON THE ORD ER OF THIS TRIBUNAL DIRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U NDER SECTION 10A OF THE ACT. THEREFORE, THIS TRIBUNAL DO NOT FIND A NY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 6 I.T.A. NO.901/MDS/16 C.O. NO.76/MDS/16 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. CONSEQUENTLY, THE C.O. IS ALSO DISMISSED. ORDER PRONOUNCED ON 1 ST SEPTEMBER, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 1 ST SEPTEMBER, 2016. KRI. - /267 87)2 /COPY TO: 1. +, /APPELLANT 2. /0+, /RESPONDENT 3. 1 92 () /CIT(A)-11, CHENNAI 4. PRINCIPAL CIT-3, CHENNAI 5. 7: /2 /DR 6. ;( < /GF.