WNS GLOBAL SERVICES (UK) LTD, MUMBAI V. ACIT (IT) 2(2), MUMBAI

ITA 125/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2589 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 15-12-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 04-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAGATI KUMAR
• Keywords: Set aside
• Section: 143(3); 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI. BEFORE SHRI R.V.EASWAR, SR.V.P. AND SHRI J.SU DHAKAR REDDY, AM I.T.A. NO.125/MUM/2009 (ASSESSMENT YEAR: 2003-04) M/S.WNS GLOBAL SERVICES PVT.LTD., (FORMERLY WORLD NETWORK SERVICES PVT.LTD.) GATE 4, GODREJ & BOYCE COMPLEX, PIROJSHANAGAR,VIKHROLI(W), MUMBAI-400 079. PAN:AAACW2598L VS. THE INCOME TAX OFFICER, RANGE 10(2)-1, MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. NIRAJ D.SHETH RESPONDENT BY : MR. PRAGATI KUMAR O R D E R PER R.V.EASWAR, SENIOR VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE RELATES TO THE ASSESSMENT YEAR 2003-04 AND IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT ON 17.12.2008 O N AN APPLICATION MADE BY THE ASSESSEE SEEKING AMENDMENT/CLARIFICATION OF THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF THE ACT ON 20.11.2007. 2. THE CIT TOOK PROCEEDINGS UNDER SECTION 263 AGAIN ST THE ASSESSMENT ORDER FRAMED ON 17.3.2006 UNDER SECTION 143(3) IN WHICH THE ASSESSEE WAS ALLOWED DEDUCTION OF RS.30,7 5,43,167/- UNDER SECTION 10A. IT IS NOT NECESSARY FOR THE PRES ENT PURPOSE TO EXAMINE THE FACTS LEADING TO THE PASSING OF THE ORD ER BY THE CIT BUT SUFFICE TO NOTE THAT IN THE COURSE OF THE PROCE EDINGS BEFORE THE CIT UNDER SECTION 263, THE ASSESSEE HAD TAKEN U P AN ALTERNATIVE PLEA THAT IF NO DEDUCTION IS ALLOWABLE UNDER SECTION 10A, THE ASSESSEE WAS STILL ELIGIBLE FOR THE DEDUCT ION UNDER SECTION 80HHE AND SECTION 80JJAA. IN THE PENULTIMAT E PARAGRAPH OF THE ORDER UNDER SECTION 263, THE CIT R EJECTED THIS ITA NO.125/MUM/09 2 ALTERNATIVE PLEA ON THE GROUND THAT NO SUCH SPECIFI C CLAIM WAS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE CIT ULTIMATELY SET ASIDE THE ASSESSMENT ORDER AND DIREC TED THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE UNDER SECTION 10A AND DECIDE THE SAME AFRESH IN ACCORDANC E WITH LAW, AFTER ALLOWING DUE OPPORTUNITY TO THE ASSESSEE. AGA INST THE ORDER OF THE CIT, THE ASSESSEE FILED AN APPEAL TO THE TRI BUNAL IN ITA.NO.348/MUM/2008 WHICH WAS DISPOSED OF BY THE TR IBUNAL BY ORDER DATED 17.6.2009. THE TRIBUNAL UPHELD THE O RDER OF THE CIT INSOFAR AS IT RELATED TO SECTION 10A. HOWEVER, IN PARAGRAPH 20 OF ITS ORDER THE TRIBUNAL OBSERVED THAT THE ASSE SSEE HAD TAKEN THE ALTERNATIVE PLEA REGARDING DEDUCTION UNDE R SECTION 80HHE/80JJAA IN THE NOTE ATTACHED TO THE COMPUTATIO N OF INCOME AND ACCORDINGLY MODIFIED THE ORDER OF THE CI T TO THE EXTENT THAT WHILE REASSESSING THE INCOME, THE ASSES SING OFFICER SHALL LOOK INTO THE ALTERNATE CLAIM OF THE ASSESSEE IN RESPECT OF DEDUCTION UNDER SECTION 80HHE/80JJAA OF THE ACT, IN ACCORDANCE WITH LAW AND SETTLED LEGAL PRINCIPLES. 3. IN THE MEANTIME, THE ASSESSEE BY LETTER DATED 25 .02.2008 WRITTEN TO THE CIT PRAYED FOR CLARIFICATION OF THE ORDER PASSED UNDER SECTION 263 INSOFAR AS IT RELATED TO THE ALTE RNATIVE PLEA RAISED BEFORE THE CIT THAT THE ASSESSING OFFICER SH OULD LOOK INTO THE CLAIM UNDER SECTION 80HHE/80JJAA. BY LETTER DAT ED 17.12.2008, THE CIT REJECTED THE ASSESSEES PRAYER SAYING THAT THE NOTE APPENDED TO THE COMPUTATION OF INCOME MER ELY STATED THAT THE ASSESSEE RESERVED ITS RIGHT TO CLAIM DEDUC TIONS UNDER THE AFORESAID SECTIONS IF ITS CLAIM UNDER SECTION 1 0A WAS REJECTED AND THEREFORE THERE WAS NO NEED TO CLARIFY HIS ORDER PASSED UNDER SECTION 263 IN WHICH HE HAD HELD THAT THE ASSESSEE DID NOT MAKE ANY SPECIFIC CLAIM BEFORE THE ASSESSING OFFICER THAT IT SHOULD BE ALLOWED DEDUCTION UNDER S ECTION 80HHE/80JJAA. IN THIS VIEW OF THE MATTER, HE REFUSE D TO ISSUE ITA NO.125/MUM/09 3 ANY CLARIFICATION TO THE ASSESSING OFFICER AS PRAYE D FOR BY THE ASSESSEE. 4. IT IS AGAINST THE AFORESAID LETTER DATED 17.12.2 008 WRITTEN BY THE CIT THAT THE ASSESSEE HAS FILED THE PRESENT APPEAL. WE PROCEED ON THE ASSUMPTION THAT THE ASSESSEES APPLI CATION TO THE CIT WAS UNDER SECTION 154 OF THE ACT AND THAT T HE LETTER OF THE CIT IS ACTUALLY AN ORDER UNDER SECTION 154 REFU SING TO AMEND OR CLARIFY HIS EARLIER ORDER PASSED UNDER SEC TION 263. BE THAT AS IT MAY, IN VIEW OF THE OBSERVATION OF THE T RIBUNAL IN PARAGRAPH 20 OF ITS ORDER CITED SUPRA, HOLDING THAT THE ASSESSING OFFICER SHOULD EXAMINE THE ASSESSEES ALT ERNATIVE PLEA FOR DEDUCTION UNDER SECTION 80HHE/80JJAA, THE PRESE NT APPEAL HAS BECOME INFRUCTUOUS AND IS DISMISSED AS SUCH. ORDER PRONOUNCED ON THIS 17 TH DAY OF DECEMBER, 2009. SD/- (J.SUDHAKAR REDDY) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER SENIOR VICE PRESIDENT MUMBAI, DATED 17 TH DECEMBER, 2009. SOMU COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT MUMBAI. 4. THE CIT-10 MUMBAI 5. THE DR G BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR, I.T.A.T, MUMBAI