Clarion Technologies Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax,

ITA 1362/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4124 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-08-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K SHRIDHAR
• Keywords: Principle of natural justice; Additional evidence
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI R.S. SYAL, VP AND SHRI VIKAS AWASTHY, JM / ITA NOS.1361 & 1362/PUN/2016 / ASSESSMENT YEARS: 2010-11 & 2011-12 CLARION TECHNOLOGIES PVT. LTD. 4 TH FLOOR, TOWER-S-4, CYBERCITY, MAGARPATTA, HADAPSAR, PUNE-411 028 PAN : AABCC8321Q .... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), PUNE. / RESPONDENT ASSESSEE BY : SHRI V.K SHRIDHAR REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 29.10.2018 / DATE OF PRONOUNCEMENT : 29.10.2018 / ORDER PER VIKAS AWASTHY, JM THESE TWO APPEALS HAVE BEEN FILED BY ASSESSEE AGAINST T HE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-1, PUNE PASSED U/S.1 54 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE AC T) FOR THE ASSESSMENT YEARS 2010-11 & 2011-12, RESPECTIVELY. BOTH THE IMPUGNE D ORDERS ARE DATED 13.04.2016. 2 ITA NOS.1361 & 1362/PUN/2016 A.YS.2010-11 & 2011-12 2. SINCE, THE ISSUES INVOLVED IN BOTH THE APPEALS ARE SIMILAR AND ARE ARISING FROM SAME SET OF FACTS, BOTH THE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DISPOSED OF VIDE THIS COMMON ORDER. 3. SHRI V.K. SHRIDHAR APPEARING ON BEHALF OF THE ASSESSEE S UBMITTED THAT THE ISSUES RAISED BY ASSESSEE IN BOTH THE ASSESSMENT Y EARS I.E. 2010-11 & 2011-12 ARE IDENTICAL. THEREFORE, ARGUMENTS MADE IN RESPEC T OF ASSESSMENT YEAR 2010-11 WOULD EQUALLY APPLY TO ASSESSMENT YEAR 2 011-12. THE LD. AR SUBMITTED THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF COMPUTER SOFTWARE. THE ASSESSEE IS REGISTERED WITH THE STPI AS 100% EXPORT ORIENTED UNIT. THE LD. AR CONTENDED THAT THE ASSESSEE IN ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 HAD MADE CLAIM OF DEDUCTION U/S.10B OF THE ACT. HOWEVER, THE CLAIM OF ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER. IN FIRST APPELLATE PROCEEDINGS, THE ASSESSEE ASSAILED THE REJ ECTION OF CLAIM U/S.10B OF THE ACT AND ALSO MADE ALTERNATE CLAIM OF DEDUCT ION U/S.10A OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPT ED THE ALTERNATE CONTENTION OF THE ASSESSEE AND ALLOWED THE CLAIM OF DEDUC TION OF RS.2,65,62,440/- U/S.10A OF THE ACT AS PER FORM-56F FILED BY THE ASSESSEE. IN FIRST APPELLATE PROCEEDINGS, THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED DEDUCTION AS PER FORM-56F WHICH WAS STAGGERED (5 0%) AS PER THE REQUIREMENT OF SECTION 10A(1A) OF THE ACT AND NOT AS PER PROVISIONS OF SECTION 10A(1) OF THE ACT. IN THE AUDIT REPORT, PROFITS FROM ELIGIBLE U NIT WERE SHOWN AS RS.5,31,24,480/- HOWEVER, CLAIM OF DEDUCTION WAS MADE ON LY IN RESPECT OF 50% OF SUCH PROFITS. THE ASSESSEE REALIZED THIS MISTAKE AN D THEREAFTER, FILED PETITION U/S.154 OF THE ACT FOR RECTIFICATION OF THE MISTAKE A ND ALSO FURNISHED REVISED FORM-54F CLAIMING 100% DEDUCTION. THE COMMISSIONE R OF INCOME TAX (APPEALS) REJECTED THE CONTENTION OF THE ASSESSEE A ND HELD THAT REVISED 3 ITA NOS.1361 & 1362/PUN/2016 A.YS.2010-11 & 2011-12 FORM-56F IS ADDITIONAL EVIDENCE WHICH CANNOT BE TAKEN INTO CONSIDERATION IN THE PROCEEDINGS U/S.154 OF THE ACT. 3.1 THE LD. AR SUBMITTED THAT ASSESSEE HAS FURNISHED REV ISED FORM-54F TO RECTIFY THE MISTAKE AND NOT AS FRESH CLAIM. THE COMMISSION ER OF INCOME TAX (APPEALS), IN PRINCIPLE, HAD HELD THAT THE ASSESSEE IS ELIGIBLE FO R CLAIMING DEDUCTION U/S.10A OF THE ACT. 4. ON THE OTHER HAND, SHRI PANKAJ GARG REPRESENTING TH E DEPARTMENT VEHEMENTLY RELIED ON THE IMPUGNED ORDER. THE LD. DR SUBMIT TED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED RELIEF TO T HE ASSESSEE AS CLAIMED IN FORM-56F. THE COMMISSIONER OF INCOME TAX (APPEALS ) IN ITS ORDER DATED 11.12.2015 HAS NO WHERE MENTIONED THAT THE RELIEF I S TO BE GRANTED UNDER SUB SECTION (1) OR SUB SECTION (1A) OF SECTION 10A O F THE ACT. TAKING ADVANTAGE OF THE SAME, NOW THE ASSESSEE IS TRYING TO EN LARGE THE SCOPE OF RELIEF BY FILING FRESH FORM-56F. AS PER FORM-56 ORIGINALLY FILED BY ASSESSEE, THE RELIEF WAS SOUGHT UNDER SUB SECTION (1A) AND THE SAME WAS ALLOWED . 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVE S OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE AS SESSEE IN APPEAL HAS RAISED AS MANY AS 13 GROUNDS. ALL THE GROUNDS OF AP PEAL ARE DIRECTED AGAINST SINGLE ISSUE OF ASSESSEES REJECTION OF CLAIM U/S.10A (1) OF THE ACT IN PROCEEDINGS U/S.154 OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) IN ORIGINAL ORDER DATED 11.12.2015 IN PRINCIPLE ALLOWED THE CL AIM OF ASSESSEE U/S.10A OF THE ACT. A PERUSAL OF THE DOCUMENTS ON RECO RD REVEAL THAT THE ASSESSEE FILED AUDIT REPORT AND HAS CLAIMED DEDUCTION BY FILING FORM-56F. THE RELIEF AS SOUGHT IN FORM-56F, WAS ALLOWED AS PER PRAY ER OF THE ASSESSEE. IN THE ENTIRE, CLAIM MADE BY THE ASSESSEE AND IN THE ORD ER PASSED BY THE 4 ITA NOS.1361 & 1362/PUN/2016 A.YS.2010-11 & 2011-12 COMMISSIONER OF INCOME TAX (APPEALS) THERE IS NO SPECIFIC R EFERENCE AS TO THE RELIEF SOUGHT/GRANTED IS U/S.10A(1) OR 10A(1A) OF THE ACT. TH E CLAIM MADE BY THE ASSESSEE IN FORM-56F IMPLIES THAT THE RELIEF HAS BEEN CLAIMED BY ASSESSEE UNDER THE PROVISIONS OF SECTION 10A(1A) OF THE AC T. THE ASSESSEE IN RECTIFICATION PETITION HAS URGED THAT THE ASSESSEE IS ELIGIBLE AND HAS SOUGHT RELIEF UNDER SUB SECTION (1) OF THE SECTION 10A. TAKING INTO C ONSIDERATION ENTIRETY OF FACTS, WE ARE OF CONSIDERED VIEW THAT THIS ISSUE NEEDS REVISIT TO THE FILE OF COMMISSIONER OF INCOME TAX(APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) SHALL RE-EXAMINE THE ASSESSEES ELIGIBILITY FOR C LAIMING DEDUCTION U/S.10A(1) VIS-A-VIS 10A(1A) OF THE ACT. THE COMMISS IONER OF INCOME TAX(APPEALS) SHALL GRANT RELIEF TO THE ASSESSEE AFT ER ASCERTAINING ASSESSEES ELIGIBILITY UNDER THE RELEVANT PROVISIONS. NEEDLES S TO SAY, COMMISSIONER OF INCOME TAX (APPEAL) SHALL FOLLOW THE PRINCIPLES OF NATURAL JUSTICE BEFORE PASSING THE ORDER ON THIS ISSUE. THE GROU NDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES, ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSE. ITA NO.1362/PUN/2016 A.Y.2011-12 7. BOTH THE SIDES ARE UNANIMOUS IN STATING THAT THE FACTS IN ASSESSMENT YEAR 2011-12 ARE IDENTICAL TO THE FACTS IN ASSESSMENT YE AR 2010-11. THEREFORE, FINDINGS GIVEN BY US WHILE DECIDING THE APPEAL OF T HE ASSESSEE IN ASSESSMENT YEAR 2010-11 WOULD MUTATIS-MUTANDIS APPLY TO ASSESSMENT YEAR 2011-12. ACCORDINGLY, GROUNDS RAISED IN APPEAL BY ASSESSE E FOR ASSESSMENT YEAR 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSE FOR SIMILAR REASONS. 5 ITA NOS.1361 & 1362/PUN/2016 A.YS.2010-11 & 2011-12 8. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE I.E. FOR A SSESSMENT YEARS 2010-11 AND 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON MONDAY, THE 29 TH DAY OF OCTOBER, 2018. SD/- SD/- R. S. SYAL VIKAS AWA STHY VICE-PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 29 TH OCTOBER, 2018 SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, PUNE. 4. THE PR. CIT-1, PUNE. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE.