ACIT, CHENNAI V. M/s. Scientific Publishing Services Pvt Ltd., CHENNAI

ITA 1022/CHNY/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2374 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-04-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 06-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 10B

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI. BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT & SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO.1022/MDS/2011 ASSESSMENT YEAR : 2005-06 THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE VI (1), AAYAKAR BHAVAN, NEW BLOCK, 121 M.G. ROAD, 7 TH FLOOR, CHENNAI 34. VS. M/S. SCIENTIFIC PUBLISHING SERVICES PVT. LTD., NO. 6 & 7, VTH STREET, DR.RADHAKRISHNAN SALAI, MYLAPORE, CHENNAI 600 004. [PAN:AAACS6707R] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N. BETGIRI, JCIT RESPONDENT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE DATE OF HEARING : 01.04.2013 DATE OF PRONOUNCEMENT : 01.04.2013 ORDER PER S.S. GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) -V, CHENNAI DA TED 22.03.2011 IN ITA NO. 130/2008-09, FOR ASSESSMENT YEAR 2005-06; I N PROCEEDINGS UNDER SECTION 143(3) R.W.S. 92C(4) OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.10 1010 1022 2222 22/M/ /M/ /M/ /M/11 1111 11 2 2. BEFORE US, THE REVENUE VEHEMENTLY ARGUES THAT T HE CIT(A) HAS WRONGLY DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION UNDER SECTION 10B AFTER EXCLUDING TELECOMMUNICATION EXPEN DITURE FROM THE EXPORT AS WELL AS TOTAL TURNOVER. ITS FURTHER CONTENTION Q UA OTHER GROUND IS THAT THE CIT(A) HAS ERRED IN HOLDING THAT THE BROUGHT FORWAR D LOSS/UNABSORBED DEPRECIATION IN ASSESSEES CASE SHOULD NOT BE SET O FF FOR THE PURPOSE OF SECTION 10B OF THE ACT. IN THE LIGHT OF THESE PLE AS, THE DR PRAYS FOR ACCEPTANCE OF THE APPEAL BY RESTORING THE FINDINGS OF THE ASSESSING OFFICER. 3. OPPOSING THIS, THE ASSESSEE SUBMITS THAT THE IS SUE OF TELECOMMUNICATION EXPENDITURE IS COVERED IN ITS FAV OUR BY THE DECISION OF THE SPECIAL BENCH OF ITAT, CHENNAI IN ITO V. M/S. SAK S OFT LTD. [2009] 20 DTR (CHENNAI)(SB) (TRIB) 514. REFERRING TO THE SECOND C ONTENTION OF THE REVENUE, THE ASSESSEE WOULD SUBMIT THAT THIS ISSUE IS ALSO COVERED AGAINST THE REVENUE IN VIEW OF THE SPECIAL BENCH DECISION O F ITAT, CHENNAI IN SCIENTIFIC ATLANTA TECHNOLOGY INDIA (P) LTD. V. ACI T 129 TTJ 273. FURTHER, BY CITING CASE LAW OF HONBLE KARNATAKA HIGH COURT IN [2012] 247 CTR (KAR) 334, CIT VS. TATA ELXSI LTD. & ORS AND [2012] 341 I TR 385 CIT VS. YOKAGAWA INDIA LTD., IT PRAYS FOR REJECTION OF THE APPEAL BY AFFIRMING CIT(A)S ORDER AND REASONS CONTAINED THEREIN. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.10 1010 1022 2222 22/M/ /M/ /M/ /M/11 1111 11 3 4. ON BEING GRANTED AN OPPORTUNITY TO REBUT ASSESS EES CONTENTIONS, THE REVENUE STATES THAT ITS APPEALS AGAINST THE AFORESA ID SPECIAL BENCH DECISIONS ARE PENDING BEFORE THE HONBLE JURISDICTI ONAL HIGH COURT. 5. WE HAVE HEARD BOTH PARTIES AND CAREFULLY EXAMIN ED THEIR RESPECTIVE CONTENTIONS. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER AND CIT(A) HAVE ALSO BEEN PERUSED AND THE CASE LAW AFORESAID HAS BE EN GONE THROUGH. THERE IS HARDLY ANY ISSUE BETWEEN THE PARTIES SO FA R AS THE FACTS OF THE CASE ARE CONCERNED AS IN BOTH GROUNDS (SUPRA), THE REVEN UE RAISED LEGAL PLEAS. IN OUR VIEW, THE SPECIAL BENCH DECISIONS IN CASES O F M/S. SAK SOFT LTD. AND SCIENTIFIC ATLANTA TECHNOLOGY INDIA (P) LTD. (SUPRA ) AS RELIED UPON BY THE CIT(A) AND CITED BY THE ASSESSEE ARE SQUARELY APPLI CABLE TO THE ISSUES INVOLVED HEREIN. COMING TO THE CONTENTION OF THE RE VENUE THAT ITS APPEALS ARE PENDING BEFORE HONBLE JURISDICTIONAL HIGH COUR T, IN OUR OPINION, IS NOT A GROUND TO ADOPT A DIFFERENT APPROACH. FURTHER, AS R IGHTLY POINTED OUT BY THE ASSESSEE, THE HONBLE KARNATAKA HIGH COURT (SUPRA) HAS DECIDED BOTH THE ISSUES AGAINST THE REVENUE. THAT BEING THE FACTUAL POSITION, WE HOLD THAT THE CIT(A) HAS RIGHTLY DIRECTED THE ASSESSING OFFICER T O RECOMPUTE THE DEDUCTION AND ALSO IT HAS BEEN CORRECTLY HELD THAT THE BROUGH T FORWARD LOSS/UNABSORBED DEPRECIATION SHOULD NOT BE SET OFF FOR THE PURPOSE OF COMPUTING DEDUCTION UNDER SECTION 10B. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.10 1010 1022 2222 22/M/ /M/ /M/ /M/11 1111 11 4 7. AS SEQUEL TO OUR ABOVE DISCUSSIONS, THE APPEAL IS DISMISSED BEING DEVOID OF MERITS. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON MONDAY, THE 1 ST OF APRIL, 2013 AT CHENNAI. SD/ - SD/ - (DR. O.K. NARAYANAN) VICE - PRESIDENT (S.S. GODARA) JUDICIAL MEMBER CHENNAI, DATED, THE 01.04.2013 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.