M/s Wissen Infotech Private Limited, Hyderabad V. ITO, Ward 3(2), Hyderabad

ITA 1078/HYD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74746 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO.1078/HYD/13 : ASSESSMENT YEAR 2009 - 10 M/S. WISSEN INFOTECH PVT. LTD., HYDERABAD ( PAN - AAACW 3027 G) V/S. INCOME TAX OFFICER WARD 3(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.V.S.S.PRASAD RESPONDENT BY : SHRI SOLGY JOSE T.KOTTARAM DR DATE OF HEARING 06.03.2014 DATE OF PRONOUNCEMENT 21.3.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS) IV, HYDERABAD DATED 27.5.2013 , FOR THE ASSESSMENT YEAR 2009 - 10. 2. EFFECTIVE GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO DISALLOWANCE OF ITS CLAIM FOR EXEMPTION IN RESPECT OF INCOME FROM TAX UNDER S.10B; OR ALTERNATIVELY UNDER S.10A OF THE ACT. 3. BRIEF FACTS OF THE CASE LEADING TO TH E FILING OF THE PRESENT APPEAL ARE THAT THE ASSESSEE, A COMPANY ENGAGED IN THE BUSINESS OF SOFTWA R E DEVELOPMENT AND RENDERING IT AN D IT ENABLED S E RVICES, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10 ON 29.09.2009, ADMITTING AN INCOME O F RS .1 ,44,740, AF T ER CLAIMING EXEMPTION UNDER S.10B OF THE ACT, AMOUNTING TO R S.63,65,260. ASSESSEE WAS REGISTERED WITH STPI, HYDERABAD AND HAD CLAIMED A DEDU CT ION UNDER S.10 - B OF THE ACT ON AN INCOME OF R S .63,65,260. ASSESSEE HAD BEEN PERMI T TED TO SET UP THE ST P UNIT BY THE DI R ECTOR, STPI, HYDERABAD ITA NO. 1078/ HYD/20 13 M/S. WISSEN INFOTECH PVT. LTD., HYDERABAD 2 HOW E VER, IT HAD NOT OBTAINED THE APPROVAL O F THE BOARD/RATIFICATION BY INTER MINISTERIAL STANDING COMMITTEE, A PPOINTED BY THE MINISTRY OF INDUSTRY, DEP A RTMENT OF INDUSTRIAL DEVELOPMENT AS ENVISAGED IN CLAUSE (IV) TO EXPLANATION 2 TO S.10B. IN THE ABSENCE OF SUCH APPROVAL, THE ASSESSING OFFICER DISALLOWE D THE DEDUCTION CLAIMED UNDER S.10B OF TH E A C T, AND COMPLETED THE ASSESSMENT ON A TOTAL INCOME OF RS . 65,10,000, VIDE ORDER OF ASSESSMENT DATED 9.12.2011 , P A SSED UN DER S. 143(3) OF THE INCOME - TAX A CT 1961. 4. ON APPEAL, THE CIT(A) TOO CONFIRMED THE ACTION O F THE ASSESSING OFFICER IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER S10B OF THE AC T. D URING THE COURSE OF APPELLATE PROCEEDINGS, ASSESSEE MADE AN A LTERNATIVE CLAIM FOR DEDUCTION UNDER S.10A OF THE ACT, THROUGH ADDITIONAL G R OUNDS RAISED BEFORE HIM IN THAT BEHALF. HOWEVER , THE COMMISSIONER OF INCOME - TAX(APPEALS), FOLLOWING TH E DECISION OF APEX COURT IN THE CA S E OF GOETZE(INDIA ) LTD. (284 ITR 323) DEC LINED TO ADMIT THE ADDITIONAL GROUNDS RAISED IN THAT BEHALF. HE FURTHER NOTED THAT S.10A REQUIRES SUBMISSION OF A REPORT OF AN ACCOUNTANT UNDER S.10A(5) IN FORM 56F. SINCE THE ASSESSEE ADMITTEDLY, HAS NOT SUBMITTED SUCH A REPORT, EVEN ON THAT GROUND, HE W AS OF THE VIEW THAT ADDITIONAL GROUNDS OF THE ASSESSEE ARE NOT LIABLE TO BE ADMITTED. 5. AGGRIEVED, ASSESSEE IS IN SECOND APPEAL BEFORE US. 6. WE HEARD BOTH SIDES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AND OTHER MATERIAL ON RECORD. AS FOR THE DISALLOWANCE OF THE ASSESSEES CLAIM FOR DEDUCTION UNDER S.10B OF THE ACT, THE ASSESSING OFFICER D ISALLOWED THE SAME, FOR WANT OF APPROVAL OF THE BO A RD/RATIFICATION BY INTER - M INISTERIAL STANDING COMMI T TEE APPOIN T ED BY THE MINI S TRY OF INDUSTRY, DEP A RTMENT OF INDUSTRIAL DEVELOPMENT AS ENVISAGED IN CLAUSE (IV ) TO EXPLANAT I ON 2 TO S.10B OF THE ACT. IT WAS THE CONTENTION OF THE ASSESSEE THAT CORRES P O NDING CLAI M HAVING BEEN ACCEPTED IN THE PR E CEDING YEARS, THERE IS NO JUSTIFICATION FOR THE DISALLOWANCE IN THE Y E AR UNDER APPEAL. OBSERVING THAT PRINCIPLE OF RES JUDICATA DOES NO T APPLY TO THE PROCEEDINGS UN D ER INCOM E - TAX ITA NO. 1078/ HYD/20 13 M/S. WISSEN INFOTECH PVT. LTD., HYDERABAD 3 ACT, IN WHICH EACH YEAR IS AN IND EPENDENT UNIT OF ASSESSMENT, THE CIT(A) SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. IN THE ABSENCE OF ANYTHING TO THE CONTRARY BROUGHT ON RECORD BY THE ASSESSEE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE R E VENU E AU THORITIES ON THIS ASPECT. 7. AS FOR THE ALTERNATIVE CLAIM OF THE ASSESSEE FOR RELIEF UNDER S.10A OF THE ACT MADE BEFORE THE CIT(A), THE CIT(A) DECLINED EVEN TO ENTERTAIN THE ADDITIONAL GROUNDS OF THE ASSESSEE, NOTWITHSTANDING THE RELIANCE PLACED BY THE ASSESSEE ON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF VNS MACRO TECHNOLOGIES P. LTD. V/S. DCIT (ITA NO.577/HYD/2012 DATED 8.6.2012) , WHEREIN UNDER IDENTICAL CIRCUMSTANCES, MATTER WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINATION OF THE ALTERNATIVE CLAIM . IN THE WRITTEN SUBMISSIONS FILED BEFORE US, ASSESSEE HAS CITED A FEW OTHER DECISIONS, WHICH ARE ALSO TO THE SAME EFFECT IN THE CONTEXT OF ADMISSIBILITY OF ALTERNATIVE CLAIM, INCLUDING THE ONE IN THE CASE OF CLOUD SOFTECH INDIA PT. LTD. V/S ITO (ITA NO.483/HYD/2003), TO WHICH THE AUTHOR MEMBER HEREIN IS ALSO A PARTY. IN THE SAID WRITTEN SUBMI S SIONS MADE BY THE ASSESSEE BEFORE US, IT HAS BEEN AVERRED THAT THE CIT(A) IN TH E COU R SE OF APPELLATE PROCEE D IN G S, ENQUIRED W ITH THE OFFICIALS OF THE ASSESSEE COMPANY, WHETHER THEY COULD FURNISH THE REPORT IN FORM 56F IF THE MATTER WAS REMANDED TO THE FILE O F THE ASSESSING OFFICER FOR EXAMINATION OF ALTERNATIVE CLAIM O F THE ASSESSEE UNDER S.10A OF THE ACT, AND THE SAID ENQUIRY B Y THE CIT(A) WAS RESPONDED BY THE OFFICIALS IN AFFIRMATIVE. CONSIDERING TOTALITY OF FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, AND FOLLOWING THE CONSISTENT VIEW TAKEN BY THE COORDINATE BENCHES OF THE TRIBUNAL, WE FIND THAT THE CIT(A) WAS NOT JU S TIFIED I N DECLINING TO ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE WITH REGARD TO ALTERNATIVE RELIEF UNDER S.10A OF THE ACT. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER OF THE CIT(A), AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRE CTION TO EXAMINE AFRE S H THE ALTERNATIVE CLAIM OF THE ASSESSEE UNDER S.10A OF THE ACT. THE ASSESSING OFFICER SHALL GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE TO ADDUCE NECESSARY EVIDENCE TO SUBSTANTIATE THE SAID ALTERNATIVE CLAIM, AND ITA NO. 1078/ HYD/20 13 M/S. WISSEN INFOTECH PVT. LTD., HYDERABAD 4 DISPOSE OF THE MATTE R IN ACCORDANCE WITH LAW, AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 21.3.2014 SD / - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 21 ST MARCH, 2014 COPY FORWARDED TO: 1. M/S. WISSEN INFOTECH PVT. LTD., C/O. PRASAD & PRASAD, CHARTERED ACCOUNTANTS, FLAT NO.301 3 RD FLOOR, M.J. TOWERS, ROAD NO.12, BANJARA HILLS, HYDERABAD 2 . INCOME TAX OFFICER WARD 3(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) IV HYDERABAD 4. COMMISSIONER OF INCOME - TAX III, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S