Cenosphere India Pvt Ltd., CHENNAI V. ACIT, CHENNAI

ITA 1094/CHNY/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8287 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: DR ANITA SUMANTH
• Section: 10B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , ! .#$#%, ' !( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ./ ITA NO.1094/MDS/2014 % *% / ASSESSMENT YEAR : 2006-07 M/S CENOSPHERE INDIA PVT. LTD., 282, LINGHI CHETTY STREET, CHENNAI - 600 001. PAN : AACCS 2764 E V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE I(3), CHENNAI. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : DR. ANITA SUMANTH, ADVOCATE ./,- 0 1 / RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT 2 0 3' / DATE OF HEARING : 02.08.2016 45* 0 3' / DATE OF PRONOUNCEMENT : 30.09.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, CHEN NAI, DATED 31.01.2014 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2 I.T.A. NO.1094/MDS/14 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS WITH REGARD TO DISALLOWANCE OF CLAIM MADE BY THE ASSESSEE UNDER SE CTION 10B OF THE INCOME-TAX ACT, 1961. 3. DR. ANITA SUMANTH, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 10B OF THE ACT ON THE GROUND THAT THE EXPORT ORIENTED UNIT WAS NOT APPROVED BY THE BOARD APPOINTED BY CENTRAL GOVERNMENT. IN FACT, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER AS WELL AS THE CIT(APPEALS) PLACE D RELIANCE ON THE JUDGMENT OF DELHI HIGH COURT IN CIT V. REGENCY CREATIONS LTD. (2012) 27 TAXMANN.COM 322. ACCORDING TO THE LD. CO UNSEL, INITIALLY, THE APPROVAL WAS GRANTED BY THE DEVELOPMENT COMMISS IONER AND SUBSEQUENTLY IT WAS RECTIFIED BY THE BOARD. THEREF ORE, THE LD.COUNSEL SUBMITTED THAT THE MATTER MAY BE REMITTE D BACK TO THE FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE MAT TER IN THE LIGHT OF THE RECTIFICATION BY THE BOARD. 4. WE HAVE HEARD SHRI SHIVA SRINIVAS, THE LD. DEPAR TMENTAL REPRESENTATIVE ALSO. AS RIGHTLY SUBMITTED BY THE L D.COUNSEL FOR THE ASSESSEE, THE ASSESSING OFFICER DISALLOWED THE CLAI M OF THE ASSESSEE UNDER SECTION 10B OF THE ACT. A BARE READ ING OF THE 3 I.T.A. NO.1094/MDS/14 ASSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER F OUND THAT THE ASSESSEE CONVERTED ITS EXISTING DTA UNIT INTO EXPOR T ORIENTED UNIT. THE ASSESSING OFFICER HAS ALSO FOUND THAT THE INDUS TRIAL UNDERTAKING WAS IN EXISTENCE SINCE 21.05.1998. HOWEVER, IN THE AUDIT REPORT, THE ASSESSEE INDICATED THAT THE FIRST YEAR OF OPERA TION IS ASSESSMENT YEAR 2005-06. IN VIEW OF THIS FACTUAL SITUATION, T HE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE. 5. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) OBSE RVED THAT THERE WAS NO MATERIAL TO SUGGEST THAT INTER-MINISTE RIAL COMMITTEE OR OTHER AGENCY NOMINATED TO PERFORM THE DUTIES OF THE BOARD CONSTITUTED UNDER SECTION 14 OF THE IDAR ACT GRANTE D APPROVAL. THEREFORE, BY PLACING RELIANCE ON THE JUDGMENT OF D ELHI HIGH COURT IN REGENCY CREATIONS LTD. (SUPRA), THE CIT(APPEALS) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 6. NOW THE LD.COUNSEL FOR THE ASSESSEE CLAIMS THAT THE BOARD CONSTITUTED UNDER IDAR ACT RECTIFIED THE DECISION O F DEVELOPMENT COMMISSIONER, THEREFORE, THE MATTER NEEDS TO BE REC ONSIDERED BY THE ASSESSING OFFICER. WE FIND SOME FORCE IN THE S UBMISSION OF THE LD.COUNSEL FOR THE ASSESSEE. WHEN THE ASSESSEE CLA IMS THAT THE BOARD CONSTITUTED UNDER SECTION 14 OF THE IDAR ACT RECTIFIED THE 4 I.T.A. NO.1094/MDS/14 DECISION OF APPROVAL GRANTED BY THE DEVELOPMENT COM MISSIONER, THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSIN G OFFICER. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW AR E SET ASIDE AND THE ISSUE DEDUCTION UNDER SECTION 10B OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERI AL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN A CCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE AS SESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30 TH SEPTEMBER, 2016 AT CHENNAI. SD/- SD/- ( ! .#$#% ) ( . . . ) (ABRAHAM P. GEORGE) (N.R.S. GANESAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 30 TH SEPTEMBER, 2016. KRI. 5 I.T.A. NO.1094/MDS/14 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 ;3 () /CIT(A)-II, CHENNAI 4. 2 ;3 /CIT, CENTRAL-1, CHENNAI 5. 9< .3 /DR 6. =% > /GF.