Dy.CIT, Cir-2, Pune, V. M/s. Bora Agro Foods, Pune

ITA 1438/PUN/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7390 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARESHWAR SHARMA
• Section: 43B; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 1 438 /PN/ 20 1 0 ( ASSTT. YEAR : 200 7 - 08 ) DY. CIT, CIR.2, PUNE .. APP ELLANT V. M/S. BORA AGRO FOODS, 39 - D SHANKARSHETH RO AD, PUNE 411037 PAN : NOT AVAILABLE . RESPONDENT APP ELLANT BY : SHRI HARESHWAR SHARMA RESPONDENT BY : NONE ORDER PER I.C. SUDHIR J M THE FIRST APPELLATE ORDER HAS BEEN QUESTIONNED BY THE REVENUE ON SEVERAL GROUNDS INVOLVING THE SOLE ISSUE AS TO WHETHER THE LD CIT(A) WAS JUSTIFIED IN ALLOWING DEDUCTION U/S. 10B TO THE ASSESSEE ON THE ADDITION BY WAY OF DISALLOWANCE U/S. 40(A)(IA) MADE ON ACCOUNT OF NON - DEDUCTION OF TDS. 2. THE CONTENTION OF LD. D.R. REMAINED THAT ADDITION BY WAY OF DISA LLOWANCE MADE U/S. 40(A)(IA) WAS NOT INCOME DERIVED FROM THE EXPORT OF ARTICLES AND GOODS, HENCE THE LD CIT(A) HAS ERRED IN HOLDING THAT ASSESSEE WAS ENTITLED TO THE CLAIMED DEDUCTION U/S. 10B OF THE ACT THEREUPON. 3. HAVING GONE THROUGH THE FIRST APPELL ATE ORDER, WE FIND THAT THE ISSUE RAISED IS FULLY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S. GEM PLUS JEWELLERY INDIA LTD., IN ITA NO. 2426 OF 2009 DATED 21.3.2010 HOLDING THAT THE APPELLANT WAS ELIGIBLE FOR ADDIT IONAL CLAIM U/S. 10A DUE TO ENHANCEMENT OF INCOME ON ITA . NO 1438 /PN /2010 M/S.BORA AGRO FOODS, ., A.Y. - 2007 - 08 2 ACCOUNT OF DISALLOWANCE U/S. 43B OF THE I.T. ACT. THE HONBLE HIGH COURT WAS PLEASED TO HOLD THEREIN THAT THIS ENHANCEMENT RESULTED IN INCREASE IN THE BUSINESS PROFIT OF THE ASSESSEE WHICH WAS ELIGIBL E FOR DEDUCTION U/S. 10A. THE BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF SABA SOFTWARE PVT. LTD. V/S. ITO IN ITA NO. 1454 /MUM/2009 DATED 27.1.2010 HAS ALSO GIVEN SIMILAR DECISION. FOLLOWING THESE DECISIONS AS WELL AS DECISION OF PUNE BENCH OF THE TRIBU NAL IN THE CASE OF VERITAS SOFTWARE INDIA LTD., ITAS NO. 135 & 1374/PN/06 IN THIS RESPECT THE LD. CIT(A) HAS ALLOWED THE CLAIMED DEDUCTION U/S. 10B OF THE ACT TO THE ASSESSEE ON THE ADDITION MADE BY WAY OF DISALLOWANCE U/S. 40(A)(IA) OF THE ACT MADE ON AC COUNT OF NON - DEDUCTION OF TDS. WE THUS DO NOT FIND REASON TO INTERFERE WITH THE FIRST APPELLATE ORDER ON THE ISSUE. THE SAME IS UPHELD. THE ISSUE IS THUS DECIDED AGAINST THE REVENUE. RELATED GROUND NOS. 1 TO 5 INVOLVING THE ISSUE ARE THUS REJECTED. 4 . IN THE RESULT, APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2011. SD/ - SD/ - ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED TH E 31ST MARCH , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PP ELLA NT 2. THE RESPONDENT 3. THE CIT - II ,PUNE 4. THE CIT(A) - I I, PUNE 5. THE D.R. A BENCH, PUNE 6. GUARD FILE ITA . NO 1438 /PN /2010 M/S.BORA AGRO FOODS, ., A.Y. - 2007 - 08 3 BY ORDER ASSISTANT REGISTRAR INCOME TAX A PPELLATE TRIBUNAL PUNE