Tess Data Solutions Pvt. Ltd., Vellore V. ACIT, Vellore

ITA 1286/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7696 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 10-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G M DAS
• Assessee Lawyers: A MAHESH
• Section: 10B; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO. 1286/MDS/2016 / ASSESSMENT YEAR : 2011-12 M/S. TESS DATA SOLUTIONS PVT. LTD., NO.10, 10 TH EAST CROSS ROAD, GANDHI NAGAR, VELLORE. PAN : AACCT7179E V. THE ASSTT. COMMISSIONER OF INCOME TAX, VELLORE. ( /APPELLANT) ( !' /RESPONDENT) # /APPELLANT BY : SHRI A. MAHESH, CA !' # /RESPONDENT BY : SHRI G.M. DAS, CIT # /DATE OF HEARING : 31.01.2017 # /DATE OF PRONOUNCEMENT : 28.02.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-8, CHENNAI DATED 24.02.2016 AND PERTAINS TO THE ASSESSMENT YEAR 2011 -12. 2 I.T.A. NO. 1286/MDS.2016 2. SHRI A. MAHESH, THE LD. REPRESENTATIVE FOR THE A SSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS ALLOWED DEDUCTION UN DER SECTION 10B OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IN TH E ORIGINAL ASSESSMENT AFTER CALLING ALL THE DETAILS FROM THE ASSESSEE. H OWEVER, THE PRINCIPAL COMMISSIONER FOUND THAT IN THE ABSENCE OF SPECIFIC NOTIFICATION OR OFFICIAL DOCUMENT SUGGESTING THAT EITHER THE INTER MINISTERIAL COMMITTEE OR ANY OTHER AGENCY WAS NOMINATED TO PERFORM THE DU TIES OF THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT BY VIRTUE OF SE CTION 14 OF THE INDUSTRIES (DEVELOPMENT & REGULATION) ACT, 1951, TH E GRANT OF DEDUCTION UNDER SECTION 10B OF THE ACT MERELY ON TH E BASIS OF THE STPI APPROVAL IS NOT IN ACCORDANCE WITH LAW. ACCORDING TO THE LD. REPRESENTATIVE, SINCE THE ASSESSING OFFICER CALLED FOR ALL THE DETAILS AND SATISFIED HIMSELF ABOUT THE ELIGIBILITY OF DEDUCTIO N CLAIMED BY THE ASSESSEE UNDER SECTION 10B OF THE ACT, THE COMMISSI ONER IS NOT JUSTIFIED IN REVISING THE ORDER OF THE ASSESSING OF FICER. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT CONSEQUENT TO THE ORDER OF THE PRINCIPAL COMMISSIONER, THE ASSESSING OFFICER NOW R EJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT RAISED THIS ISSUE IN THE RETURN OF INCOME. THEREFORE, THE ASSE SSING OFFICER HAS NOT FOLLOWED THE DIRECTION OF THE COMMISSIONER. 3 I.T.A. NO. 1286/MDS.2016 3. ON THE CONTRARY, SHRI G.M. DAS, THE LD. DEPARTME NTAL REPRESENTATIVE SUBMITTED THAT EVEN THOUGH THE ASSES SEE HAS NOT RAISED THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT IN THE RETURN OF INCOME, THIS TRIBUNAL BEING AN APPELLATE AUTHORI TY COULD ALWAYS DIRECT THE ASSESSING OFFICER TO CONSIDER THE CLAIM OF DEDU CTION UNDER SECTION 10B OF THE ACT. THE ASSESSING OFFICER MAY ALSO BE DIRECTED TO CONSIDER THE ALTERNATING CLAIM OF DEDUCTION UNDER SECTION 10 A OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. EVEN THO UGH, THE ASSESSEE CLAIMS THAT THE ASSESSING OFFICER CALLED FOR ALL TH E DETAILS FOR THE PURPOSE OF CLAIMING DEDUCTION UNDER SECTION 10B OF THE ACT, THE IMPUGNED ORDER DOES NOT REFLECT ANYTHING ABOUT THE APPLICATION OF MIND BY THE ASSESSING OFFICER. THE ASSESSING OFFICER SI MPLY ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT ANY DISCUSSION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSMENT ORDER BEING A QUASI JUDICIAL ORDER AND THE ASSESSMENT PROCEEDING BEFORE THE ASSE SSING OFFICER IS A JUDICIAL PROCEEDING UNDER SECTION 136 OF THE ACT, T HE ASSESSING OFFICER IS EXPECTED TO RECORD HIS OWN REASONING FOR ALLOWIN G OR DISALLOWING THE CLAIM OF THE ASSESSEE. BY NOT RECORDING THE REASONS FOR ALLOWING OR DISALLOWING THE CLAIM OF THE ASSESSEE IN THE IMPUGN ED ASSESSMENT 4 I.T.A. NO. 1286/MDS.2016 ORDER, THE VERY OBJECT OF PROVIDING REVISIONAL / AP PELLATE REMEDY WOULD BE DEFEATED. FOR THE PURPOSE OF APPRECIATING THE IM PUGNED ORDER OF THE ASSESSMENT BY THE REVISIONAL AND APPELLATE AUTHORIT IES AND ALSO OTHER HIGHER FORUMS, IT IS NECESSARY FOR THE ASSESSING OF FICER TO RECORD HIS OWN REASONING IN THE ASSESSMENT ORDER. THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT RECORDING OF REASON WOULD B E A LIVE LINK TO THE MATERIAL AVAILABLE ON RECORD AND THE MIND OF THE DE CISION MAKER. THE REASONS FOR THE CONCLUSION REACHED IN THE ASSESSMEN T ORDER HAS TO BE RECORDED IN THE ASSESSMENT ORDER ITSELF. THE REASO NS FOR THE CONCLUSIONS REACHED IN THE ASSESSMENT ORDER CANNOT BE SUBSTITUTED EITHER BY WAY OF AN AFFIDAVIT OR BY WAY OF ADDITION AL EVIDENCE BEFORE THE REVISIONAL OR APPELLATE AUTHORITIES. SINCE, SUCH A N APPLICATION OF MIND IS NOT REFLECTED FROM THE ASSESSMENT ORDER, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT PRINCIPAL COMMISSIONER HAS RIGHTLY EXERCISED HIS JURISDICTION UNDER SECTION 263 OF THE ACT. 5. NOW COMING TO THE CLAIM OF DEDUCTION UNDER SECTI ON 10B OF THE ACT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THA T EVEN THOUGH THE CLAIM WAS NOT RAISED IN THE RETURN OF INCOME, THE A SSESSEE MAY CLAIM THE SAME BEFORE THIS TRIBUNAL ON ADDITIONAL GROUNDS . THEREFORE, AS RIGHTLY SUBMITTED BY THE LD. D.R., THE CLAIM OF THE ASSESSEE SHALL BE 5 I.T.A. NO. 1286/MDS.2016 CONSIDERED BY THE ASSESSING OFFICER, SUBJECT TO FUL FILLMENT OF ALL STATUTORY REQUIREMENTS. ACCORDINGLY, WHILE CONFIRM ING THE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME-TAX, THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE UNDER SECTION 10B OF THE ACT SUBJECT TO FULFILLMENT OF STATUTORY REQUIREMENT . IF THE ASSESSEE HAS NOT FULFILLED THE STATUTORY REQUIREMENT FOR THE PUR POSE OF DEDUCTION UNDER SECTION 10B OF THE ACT, THE ASSESSING OFFICER SHALL ALSO EXAMINE THE CLAIM OF THE ASSESSEE ALTERNATIVELY UNDER SECTI ON 10A OF THE ACT. 6. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE STANDS DISMISSED. ORDER PRONOUNCED ON 28 TH FEBRUARY, 2017 AT CHENNAI. SD/- SD/- ( . . ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, /DATED, THE 28 TH FEBRUARY, 2017. JR. # ! $ % $ /COPY TO: 1. /APPELLANT 2. !' /RESPONDENT 3. PRINCIPAL CIT(A)-8, CHENNAI 4. &' /CIT 5. ! $ /DR 6. () /GF.