Indecomm Global Services India Private Limited, Bangalore V. Deputy Commissioner of Income-Tax, Bangalore

ITA 1589/BANG/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8237 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 03-12-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 01-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Question of law; Procedural lapse; Revised return
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 1589/BANG/2016 ASSESSMENT YEAR : 2009 - 10 INDECOMM GLOBAL SERVICES INDIA PRIVATE LIMITED (FORMERLY KNOWN AS IGS IMAGING SERVICES INDIA PVT. LTD.,), 11-12/1, 4 TH FLOOR, MARUTHI INFOTECH CENTER, BLOCK A, AMARJYOTI LAYOUT, OFF. INTERMEDIATE RING ROAD, BANGALORE 560 067. PAN: AABCI 2902H VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1)(1) [FORMERLY CIRCLE 11(4)], BANGALORE. APP ELL ANT RESPONDENT APPELLANT BY : SMT. RASHMI R., ADVOCATE RESPONDENT BY : DR. P.V. PRADEEP KUMAR, ADDL.CIT(DR)(ITAT), BENGALU RU. DATE OF HEARING : 03.12 .201 8 DATE OF PRONOUNCEMENT : 31 .12 .201 8 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER DATED 28.6.2016 OF CIT(A)-3, BENGALURU, RELATING TO AY 20 09-10. 2. GR.NO.1 RAISED BY THE ASSESSEE READS AS FOLLOWS: - ITA NO.1589/BANG/2016 PAGE 2 OF 12 THE LEARNED ASSESSING OFFICER ('AO') AND THE COMMI SSIONER OF INCOME TAX (APPEALS) ('CIT(A)') HAVE ERRED IN LAW A ND FACTS OF THE CASE IN DETERMINING THE TOTAL INCOME OF THE APP ELLANT: 1. CLAIM OF DEDUCTION UNDER SECTION 10A FOR 80FT ROAD UNIT, INDIRANAGAR THE LEARNED CIT(A) HAS ERRED IN NOT GRANTING THE DE DUCTION UNDER SECTION 10A OF THE ACT AMOUNTING TO RS.54,43, 656 IN RESPECT OF PROFITS EARNED BY APPELLANT'S FACILITY A T 80FT ROAD, INDIRANAGAR, WHICH IS A MERE EXTENSION OF AN ALREADY EXISTING STPI UNIT IN KORAMANGALA. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT A LTHOUGH THE APPELLANT HAS INADVERTENTLY NOT CLAIMED THE DED UCTION U/S 10A IN RESPECT OF FACILITY AT 80FT ROAD, INDIRA NAGAR (WHICH IS AN EXTENSION OF EXISTING KORAMANGALA UNIT , A ELIGIBLE UNIT UNDER SECTION 10A OF THE ACT), IT HAS MADE THE SAID CLAIM BEFORE THE LEARNED ASSESSING OFFICER (AO ) DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT A LTHOUGH THE APPELLANT HAS MADE THE SAID CLAIM U/S 10A IN RE SPECT OF FACILITY AT 80FT ROAD (WHICH IS AN EXTENSION OF EXI STING KORAMANGALA UNIT, A ELIGIBLE UNIT UNDER SECTION 10A OF THE ACT) DURING THE ASSESSMENT PROCEEDINGS, THE LEARNED AO HAS NOT GRANTED THE SAME. THE LEARNED CIT(A) HAS ERRED IN STATING THAT THE AP PELLANT HAD NOT PLACED THE RELEVANT DETAILS IN RESPECT OF 8 0FT ROAD UNIT (WHICH IS AN EXTENSION OF EXISTING KORAMANGALA UNIT, A ELIGIBLE UNIT UNDER SECTION 10A OF THE ACT) BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS, ALTHOUGH THE APP ELLANT HAD ACTUALLY SUBMITTED THE SAME BEFORE THE AO AND T HUS THE RELEVANT FACTS WERE ALWAYS ON RECORD IN THE NORMAL COURSE OF ASSESSMENT. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT T HE APPELLATE AUTHORITIES HAVE THE POWER TO CONSIDER TH E SAID CLAIM OF DEDUCTION U/S 10A AS MADE BY THE APPELLANT BEFORE ITA NO.1589/BANG/2016 PAGE 3 OF 12 THE AO DURING THE ASSESSMENT PROCEEDINGS, ALTHOUGH SUCH CLAIM WAS INADVERTENTLY NOT MADE IN THE RETURN OF I NCOME. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT T HE APPELLANT HAS ALREADY MADE THE SAID CLAIM OF DEDUCT ION U/S 10A BEFORE THE AO DURING ASSESSMENT PROCEEDINGS AND HENCE IT IS NOT A CASE OF APPELLANT MAKING AN ADDIT IONAL CLAIM FOR THE FIRST TIME AT APPELLATE LEVEL. 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF PROVIDING INFORMATION TECHNOLOGY ENABLED SERVICES (ITES) AND TRADING IN SCANNERS AND IMAGING EQUIPMENT. IT IS NOT IN DISPUTE THAT T HE ASSESSEE HAS 4 UNITS WHICH ARE APPROVED UNDER THE SOFTWARE TECHNOLOGY PA RKS OF INDIA (STPI) SCHEME AND THEREFORE ENTITLED TO CLAIM DEDUCTION U/ S.10A OF THE INCOME TAX ACT, 1961 (ACT) IN RESPECT OF THE PROFITS DERIV ED FROM EXPORT OF COMPUTER SOFTWARE. ONE OF THE 4 UNITS WAS A UNIT AT KORAMAN GALA, BENGALURU, REFERRED TO AS KORAMANGALA UNIT. THE ASSESSEE HAD ANOTHER UNIT AT INDIRANAGAR, BENGALURU WHICH WAS ALSO ENGAGED IN MA NUFACTURE OF EXPORT OF COMPUTER SOFTWARE, HEREINAFTER REFERRED TO AS I NDIRANAGAR UNIT. INDIRANAGAR UNIT WAS CONSIDERED BY THE ASSESSEE AS EXPANSION OF THE KORAMANGALA UNIT AND THEREFORE PROFITS DERIVED FROM EXPORT OF COMPUTER SOFTWARE FROM THE INDIRANAGAR UNIT WAS ALSO TO BE R EGARDED AS PROFITS OF THE KORAMANGALA UNIT AND SUCH PROFITS WERE ALSO ELIGIBL E FOR DEDUCTION U/S.10A OF THE ACT. THE APPROVAL OF INDIRANAGAR UNIT AS EX PANSION OF THE KORAMANGALA UNIT WAS ACCORDED BY THE STPI IN ITS LE TTER DATED 5.5.2007, A COPY OF WHICH IS AT PAGE-59 OF THE ASSESSEES PAPER BOOK. 4. THE ASSESSEE IN THE RETURN OF INCOME, INADVERTEN TLY DID NOT INCLUDE THE PROFITS OF INDIRANAGAR UNIT AS PROFITS OF KORAM ANGALA UNIT WHILE CLAIMING DEDUCTION U/S.10A OF THE ACT ON PROFITS DERIVED BY THE KORAMANGALA UNIT. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE BROUGHT TO THE NOTICE OF THE AO VIDE ITS SUBMISSION DATED 28.1.2013 AND 3 0.12.2012 (FILED BEFORE ITA NO.1589/BANG/2016 PAGE 4 OF 12 AO ON 5.11.2012), THE FACTS WITH REGARD TO INDIRANA GAR UNIT STATED IN THE EARLIER PARAGRAPH AND CLAIMED THAT THE PROFITS OF T HE INDIRANAGAR UNIT SHOULD BE REGARDED AS PROFITS OF KORAMANGALA UNIT AND DEDU CTION U/S.10A OF THE ACT SHOULD BE ALLOWED ON SUCH ENHANCED PROFITS. 5. THE AO DID NOT MAKE ANY REFERENCE TO THE ABOVE C LAIM OF THE ASSESSEE IN THE ORDER OF ASSESSMENT AND ALLOWED DED UCTION U/S.10A OF THE ACT AS CLAIMED IN THE RETURN OF INCOME BY THE ASSES SEE THEREBY NOT ALLOWING DEDUCTION U/S.10A OF THE ACT ON THE PROFIT OF THE INDIRANAGAR UNIT. 6. BEFORE CIT(APPEALS), THE ASSESSEE SUBMITTED THAT IT WAS NOT MAKING A NEW CLAIM FOR DEDUCTION U/S.10A OF THE ACT BUT WA S ONLY CLAIMING THE CORRECT QUANTUM OF DEDUCTION U/S.10A OF THE ACT IN RESPECT OF THE PROFITS OF THE KORAMANGALA UNIT AND THEREFORE THE CLAIM OUGHT TO HAVE BEEN ENTERTAINED AND ALLOWED BY THE AO. THE ASSESSEE RE LIED ON THE DECISION OF THE HONBLE MUMBAI ITAT IN THE CASE OF XS CAD INDIA PVT. LTD. (2015) 61 TAXMANN.COM 82 (MUMBAI) WHEREIN THE ASSESSEE WRONGLY CLAIMED DEDUCTION U/S.10A OF THE ACT AT 50% OF PROFITS WHER EAS THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S.10A OF THE ACT AT 100% OF THE PROFITS AND THE ASSESSEE FILED A REVISED COMPUTATION CLAIMING DEDUC TION U/S.10A OF THE ACT AT 100% OF PROFITS. THE AO DID NOT ENTERTAIN THE C LAIM AS IT WAS NOT MADE IN A REVISED RETURN OF INCOME FILED BUT THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. THE TRIBUNAL UPHELD THE ORDER OF THE CIT( A). RELIANCE WAS ALSO PLACED BY THE ASSESSEE ON SEVERAL JUDICIAL PRONOUNC EMENTS LIKE (I) JUTE CORPORATION OF INDIA LTD. VS. CIT (1990) 53 TAXMAN 85(SC) WHEREIN IT WAS HELD THAT THE FIRST APPELLATE AUTHORITY HAS WIDE PO WERS U/S.251(1)(A) OF THE ACT AND CAN ENTERTAIN AN ADDITIONAL CLAIM; (II) NATIONAL THERMAL POWER CO. LTD. VS. CIT 229 ITR 383 (SC) WHEREIN IT WAS HELD THAT THE PURPOSE OF PROCEEDINGS UNDER THE ACT IS FOR CORRECT DETERMINAT ION OF TAX LIABILITY AND EXAMINATION OF CLAIM ON THE BASIS OF FACTS ALREADY ON RECORD SHOULD BE ITA NO.1589/BANG/2016 PAGE 5 OF 12 ENTERTAINED; (III) CIT VS. PRUTHIVI BROKERS & SHAREHOLDERS (2012 ) 23 TAXMANN.COM 23 (BOM) , RAMCO CEMENTS LTD. VS. DCIT (2015) 55 TAXMANN.COM 79 (MAD) , RAKESH SINGH VS. ACIT (2012) 26 TAXMANN.COM 240(BANG-ITAT) AND CHICAGO PNEUMATIC INDIA LTD. VS. DCIT (2007) 15 SOT 252 (MUM-ITAT) WHEREIN IT WAS HELD THAT APPELLATE AUTHORITIES TO ENTERTAIN A NEW CLAIM DE HORS FILING REVISED RETURN OF INCOME AND THAT THE PROHIBITION LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. VS CIT 284 ITR 323 (SC) IS NOT APPLICABL E TO THE APPELLATE AUTHORITIES UNDER THE ACT. 7. THE CIT(APPEALS) REFUSED TO ENTERTAIN THE CLAIM OF THE ASSESSEE FOR DEDUCTION IN RESPECT OF THE PROFITS OF THE INDIRANA GAR UNIT ON THE GROUND THAT RELEVANT FACTS FOR VERIFICATION OF THE CLAIM OF THE ASSESSEE WAS NOT AVAILABLE ON RECORD AND THAT THE DECISION OF THE BANGALORE TR IBUNAL IN THE CASE OF RAKESH SINGH (SUPRA) WAS NOT APPLICABLE BECAUSE THAT WAS A CASE WHERE DISPUTE WAS WITH REGARD TO ALLOWABILITY OF DEPRECIA TION WHICH DID NOT INVOLVE EXAMINATION OF FACTS AND FACTS WERE ALREADY AVAILAB LE ON RECORD. ON THE ABOVE REASONING AND QUOTING THE OBSERVATIONS OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC LTD. (SUPRA) WHEREIN IT WAS OBSERVED THAT QUESTION OF LAW WHICH ARISES FOR CONSIDERATION FROM FACTS FOUND BY LOWER AUTHORITIES HAVING A BEARING ON TAX LIABILITY SHOUL D BE ENTERTAINED, THE CIT(A) HELD THAT FACTS NECESSARY FOR ADJUDICATION O F CLAIM OF ASSESSEE U/S.10A OF THE ACT FOR THE PROFITS OF THE INDIRANAG AR UNIT WERE NOT AVAILABLE ON RECORD AND THEREFORE THE CLAIM CANNOT BE ENTERTA INED. 8. THE CIT(A) ON THIS ISSUE CONCLUDED AS FOLLOWS:- 8. IN THE PRESENT CASE IT IS NOT IN DISPUTE THAT T HE APPELLANT HAD NOT MADE ANY CLAIM WITH REGARD TO DEDUCTION U/S 10A OF THE ACT IN RESPECT OF THE INDIARANAGAR UNIT IN ITS RETU RN OF INCOME. NO DETAILS RELATING TO THE EXTENSION OF THE APPROVAL I N RESPECT OF THE ITA NO.1589/BANG/2016 PAGE 6 OF 12 SAME UNIT AND OTHER RELEVANT DETAILS REQUIRED FOR V ERIFICATION BEFORE ALLOWING THE DEDUCTION U/S 10A WERE FURNISHED BEFOR E THE AO. NO INFORMATION RELATING TO THE EXPORT TURNOVER AND TOT AL TURNOVER OF THE UNIT AND OTHER RELATED EXPENSES AND THE COMPUTATION OF INCOME IN RESPECT OF THE INDIRANAGAR UNIT FOR WHICH THE DEDUC TION U/S 10A IS SOUGHT TO BE CLAIMED WERE FURNISHED BY THE APPELLAN T BEFORE THE AO. THEREFORE, IT IS CLEARLY EVIDENT THAT THE RELEV ANT FACTS FOR ADJUDICATING THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 10A IN RESPECT OF THE INDIRANAGAR UNIT OF THE APPELLANT WE RE NOT AVAILABLE ON RECORD BEFORE THE AO DURING THE ASSESSMENT PROCE EDINGS. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. (SUPRA) AND CONSIDERING THE SPECIFIC FACTS OF THE P RESENT CASE, THE CLAIM OF THE APPELLANT CANNOT BE ACCEPTED. THE DECI SION IN THE CASE OF RAKESH SINGH VS. ACTT (SUPRA) CANNOT BE APPLIED FOR ALLOWING DEDUCTION U/S 10A WITHOUT HAVING THE RELEVANT RECOR DS RELATING TO THE CLAIM OF DEDUCTION BY THE INDIRANAGAR UNIT. THE REFORE, THE CONTENTION OF THE APPELLANT FOR CONSIDERATION OF TH E ADDITIONAL CLAIM OF DEDUCTION U/S 10A IN RESPECT OF THE INDIRA NAGAR UNIT OF THE APPELLANT CANNOT BE ACCEPTED. THE GROUND OF APPEAL IS ACCORDINGLY DISMISSED. 9. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE HAS RAISED GR.NO.1 BEFORE THE TRIBUNAL. WE HAVE HEARD THE RIV AL SUBMISSIONS. THE LEARNED DR REITERATED THE STAND OF THE REVENUE AS C ONTAINED IN THE GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL. HE RE LIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS CIT 284 ITR 323 (SC) WHEREIN THE HONBLE SUPREME COURT HELD THAT AFTER FILING THE RETURN OF INCOME, AN ASSESSEE CAN MAKE FURTHER NEW CLAIM ONLY BY FILING A REVISED RETURN OF INCOME IN TIME. 10. THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD VS CIT (SUPRA) HELD THAT THE AO CANNOT ENTERTAIN ANY CLAIM BY AN ASSESSEE WHICH IS NOT MADE IN A RETURN OF INCOME, WITHOUT FILING A REVISE D RETURN OF INCOME. IN THE AFORESAID DECISION, THE HONBLE SUPREME COURT ALSO MADE REFERENCE TO THE ITA NO.1589/BANG/2016 PAGE 7 OF 12 DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F NTPC LTD. 229 ITR 383 (SC) , WHEREIN IT WAS LAID DOWN THAT IT WAS OPEN TO THE ASSESSEE TO RAISE ANY POINT OF LAW EVEN BEFORE THE APPELLATE TR IBUNAL. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT THE HONBLE SUPR EME COURT IN THE CASE OF GOETZE INDIA LTD FURTHER OBSERVED THAT IN PARA 4 OF ITS DECISION THAT ITS DECISION WILL NOT HAVE ANY IMPACT ON THE POWER OF T HE TRIBUNAL U/S 254 TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW, PROVID ED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE ADJUDICATED ARE ALREA DY AVAILABLE ON RECORD. THE HONBLE SUPREME COURT MADE IT CLEAR THAT ITS DE CISION WAS LIMITED IN THE POWER OF THE AO. THE LD. COUNSEL SUBMITTED THAT IN THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE O F NTPC LTD. VS CIT (SUPRA) THE HONBLE SUPREME COURT HAD PLACED RELIANCE ON I TS OWN DECISION IN THE CASE OF JUTE CORPORATION OF INDIA VS CIT 1991 AIR 241 (SC) . IN THE SAID DECISION THE HONBLE SUPREME COURT, DEALT WITH THE POWER OF THE FIRST APPELLATE AUTHORITY TO ENTERTAIN A CLAIM THAT WAS N OT MADE IN THE RETURN OF INCOME OR BEFORE THE AO. THE RIGHT TO ENTERTAIN A N EW PLEA IN THE APPEAL BEFORE IT WAS QUALIFIED WITH A RIDER THAT THE APPEL LATE AUTHORITY MUST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THE SAME WAS NOT RAISED EARLIER FOR GOOD REASONS. THE LD. COUNSEL SUBMITTED THAT THE RATIO LAID DOWN IN THE CASE OF GOETZE INDIA LTD. , REGARDING THE POWER OF THE TRIBUNAL TO ENTERTAIN A NEW PLEA SHOULD BE CONSTRUED AS NOT APP LICABLE TO THE FIRST APPELLATE AUTHORITY ALSO IN VIEW OF THE DECISION IN THE CASE OF JUTE CORPORATION OF INDIA (SUPRA) . HE RELIED ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF E-FUNDS INTERNATIONAL INDIA PVT. LTD. ITA NO.607 & 607/2015 . HE REITERATED SUBMISSIONS MADE BEFORE THE CIT(A). T HE LEARNED DR RELIED ON THE ORDER OF THE CIT(A). 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN T HE CASE OF CHICAGO PNEUMATIC INDIA LTD. VS. DCIT 15 SOT 252 (2007) (IT AT) (DEL) , THE DELHI ITA NO.1589/BANG/2016 PAGE 8 OF 12 ITAT, IN THE CONTEXT OF ALLOWABILITY OF NEW CLAIMS DURING THE ASSESSMENT PROCEEDINGS WITHOUT HAVING RECOURSE TO A REVISED RE TURN, HAS, PLACING RELIANCE ON PRINCIPLE EMBEDDED IN ARTICLE 265 OF IN DIAN CONSTITUTION (NO TAX CAN BE COLLECTED EXCEPT BY THE AUTHORITY OF LAW), C BDT CIRCULAR NO. 14 DATED 11 APRIL 1955 AND EXPLAINING THE RATIO OF THE GOETZ (INDIA) LTD. (SUPRA) RULING, CATEGORICALLY HELD THAT ASSESSEE HAS THE R IGHT TO MAKE NEW CLAIMS DURING ASSESSMENT PROCEEDINGS WITHOUT RECOUR SE TO A REVISED RETURN. THE TRIBUNAL DEALT WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD., (SUPRA) IN THE FOLLOWING MANNER: . AS FAR AS THE DECISION OF THE HON'BLE APEX COUR T IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) IS CONCERNED, THERE IS NO DISPUTE THAT THE SAME IS BINDING ON EVERYBODY CONCERNED. IN THE SAID DECISION, THE HON'BLE APEX COURT HAS ALSO RULED THAT APPELLAT E TRIBUNAL MAY ADJUDICATE THE ISSUE IF A CLAIM IS MADE BY ANY PART Y SUBJECT TO SATISFACTION OF PRESCRIBED RULES, HENCE, EVEN THE H ON'BLE APEX COURT HAS NOT BARRED THE ASSESSEE RAISE IT'S LEGAL CLAIM BEFORE APPELLATE AUTHORITIES. HOWEVER, SUCH PROCESS WOULD RESULT INTO UNDUE HARDSHIPS, DELAY AND MULTIPLICITY OF PROCEEDI NGS. THE HON'BLE APEX COURT, ON NUMEROUS OCCASIONS HAS LAID THE PROPOSITION THAT THE ASSESSING AUTHORITIES ARE BOUN D TO COMPUTE THE CORRECT INCOME ONLY AND COLLECT ONLY LEGITIMATE TAX, HENCE, MERELY FOR A PROCEDURAL LAPSE OR TECHNICALITIES, IN OUR OPINION, THE ASSESSEE SHOULD NOT BE COMPELLED TO PAY MORE TAX TH AN WHAT IS DUE FROM HIM. THEREFORE, THIS SITUATION HAS NECESSARILY TO BE LOOKED UPON FROM THE ANGLE OF DUTIES OF ASSESSING AUTHORIT IES AS STATED EARLIER, CEDT IS THE APEX BODY FOR TAX ADMINISTRATI ON AND IT CAN ALSO ISSUE DIRECTIONS WHICH ARE FOR THE BENEFIT OF THE ASSESSEE'S THOUGH SUCH DIRECTIONS MAY NOT BE INCONSONANCE WITH THE PROVISIONS OF LAW, HENCE, IF A CIRCULAR IS NOW ISSU ED DIRECTING THE ASSESSING AUTHORITIES TO GRANT RELIEFS/REFUNDS WHIL E COMPLETING THE ASSESSMENT PROCEEDINGS, EVEN THOUGH SUCH CIRCULAR M AY BE AT VARIANCE WITH THE LAW, AS PRONOUNCED BY THE HON'BLE SUPREME COURT, BUT THE SAME WOULD BE BINDING ON THE SUBORDI NATE INCOME- TAX AUTHORITIES. IN OUR OPINION, THEREFORE, CIRCULA RS OF SAME NATURE WHICH HAVE BEEN ALREADY ISSUED WOULD NOT BECOME IRR ELEVANT OR ITA NO.1589/BANG/2016 PAGE 9 OF 12 CAN BE IGNORED. ADMITTEDLY, THE CIRCULAR ISSUED IN 1995 HAS NOT BEEN WITHDRAWN, HENCE, IT HAS GOT BINDING FORCE ON THE SUBORDINATE AUTHORITIES EVEN AS ON DATE. ACCORDINGLY, WE HOLD T HAT THE ASSESSING OFFICER IS BOUND TO ASSESS THE CORRECT IN COME AND FOR THIS PURPOSE, THE ASSESSING OFFICER MAY GRANT RELIE FS/ REFUNDS SUO MOTU OR CAN DO SO ON BEING POINTED OUT BY THE ASSES SEE IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR WHICH ASSESSEE HAS NOT FILED REVISED RETURN, ALTHOUGH, AS PER LAW, THE ASSESSEE IS REQUIRED TO FILE THE REVISED RETURN ..... ' 12. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE CIT VS RAMCO INTERNATIONAL, 221 CTR 491 (2008) HC (P&H) DISTINGUISHED THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) PVT. LTD. (SUPRA) AND ALLOWED THE CLAIM OF THE ASSESSEE WHICH WAS MA DE IN COURSE OF THE ASSESSMENT PROCEEDINGS AND NOT BY FILING REV ISED RETURN. THE HONBLE DELHI HIGH COURT IN THE CASE OF JAI PARABOLIC SPRINGS 306 ITR 42 (DELHI) HAS HELD THAT THE APPELLATE AUTHORITIES UNDER THE ACT, WERE FREE TO CONSIDER A CLAIM MADE BY AN ASSESSEE EVEN IN THE AB SENCE OF A REVISED RETURN OF INCOME AND THAT THE REQUIREMENT FOR FILIN G A REVISED RETURN OF INCOME AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. (SUPRA) IS APPLICABLE ONLY WHEN A CLAIM IS MADE CONTRARY T O THE RETURN OF INCOME BEFORE THE AO. THE HONBLE DELHI H IGH COURT IN THE CASE OF BHARAT ALUMINIUM 163 TAXMAN 430 , HAS INTER ALIA RULED THAT ASSESSEE CAN FILE REVISED COMPUTATION IN THE COURSE OF ONGOI NG ASSESSMENT PROCEEDINGS UNDER THE ACT, WITHOUT MAKING RECOURSE TO REVISED RETURN, DESPITE THE FACT THAT TIME LIMIT FOR REVISING RETUR N UNDER SECTION 139(5) HAD EXPIRED. 13. IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMEN TS, WE ARE OF THE VIEW THAT THE CIT(A) FELL INTO AN ERROR IN REFUSING TO E XAMINE THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.10A OF THE ACT ON THE PR OFITS OF THE INDIRANAGAR UNIT. WE ARE OF THE VIEW THAT INTEREST OF JUSTICE WOULD BE MET BY DIRECTING ITA NO.1589/BANG/2016 PAGE 10 OF 12 THE AO TO EXAMINE THE CLAIM OF THE ASSESSEE IN THIS REGARD IN ACCORDANCE WITH LAW AND IF THE CLAIM IS OTHERWISE ALLOWABLE, T O ALLOW THE DEDUCTION. THE AO WILL AFFORD OPPORTUNITY OF BEING HEARD TO THE AS SESSEE IN THE SET ASIDE PROCEEDINGS BEFORE DECIDING THE ISSUE ON MERITS. WE DIRECT THE AO ACCORDINGLY. 14. GR.NO.2 RAISED BY THE ASSESSEE READS AS FOLLOWS : 2. SHORT CREDIT FOR TAX DEDUCTED AT SOURCE THE LEARNED CIT(A) HAS ERRED IN DIRECTING THE AO TO GRANT CREDIT OF TAX DEDUCTION AT SOURCE ('TDS') FOR AN AM OUNT OF RS. 13,265,829 AS REFLECTING IN FORM 26AS, ALTHOUGH THE APPELLANT HAS SUBMITTED TDS CERTIFICATES TO THE EXT ENT OF RS, 14,631,157. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, RESCIND A ND MODIFY THE GROUNDS PROVIDED HEREIN ABOVE OR PRODUCE FURTHER DO CUMENTS, FACTS AND EVIDENCE BEFORE OR DURING THE COURSE OF NEARING OF THIS APPEAL. FOR THE ABOVE AND ANY OTHER GROUNDS WHICH MAY BE RA ISED AT THE TIME OF HEARING, IT IS PRAYED THAT NECESSARY RELIEF MAY BE PROVIDED. 15. AS REGARDS GR.NO.2, THE CIT(A) GAVE THE FOLLOWI NG DIRECTIONS TO THE AO IN SO FAR AS GIVING OF CREDIT TO TAX DEDUCT AT S OURCE IS CONCERNED:- 10. GROUND NO.4 OF THE APPEAL IS WITH REGARD TO TH E SHORT GRANT OF CREDIT IN RESPECT OF THE TAX DEDUCTED AT SOURCE. IN THIS REGARD THE APPELLANT HAS CLAIMED THAT THE AO HAD RESTRICTED TH E TDS CREDIT TO RS.71,75,208 THEREBY NOT ALLOWING CREDIT FOR OF TDS TO THE EXTENT OF RS.7,493,203. THE APPELLANT HAS ALSO STATED THAT AS PER THE TDS CERTIFICATES THE COMPANY HAS TDS CREDIT AMOUNTING T O RS.1,46,31,157/-. IT IS FURTHER CLAIMED THAT AS PER THE FORM 26AS UPDATED ON 02.06.2016, THE TDS CREDIT AVAILABLE TO THE APPELLANT IS FOUND TO BE RS.1,32,65,829. THEREFORE THE APPELLANT HAS CLAIMED THAT NECESSARY TDS CREDIT SHOULD BE ALLOWED. ITA NO.1589/BANG/2016 PAGE 11 OF 12 10.1 THE SUBMISSIONS MADE BY THE APPELLANT HAVE BE EN CONSIDERED DURING THE APPEAL PROCEEDINGS THE APPELL ANT HAS FILED COPIES OF THE FORM NO. 26AS IN THE CASE OF THE APPE LLANT UPDATED TILL 02.06.2016, FROM WHICH IT IS SEEN THAT THE APP ELLANT HAS NOT BEEN ALLOWED TO AVAIL THE TDS CREDIT AS REFLECTED I N THE FORM 26AS. THEREFORE, THE AO IS DIRECTED TO VERIFY THE UPDATED FORM NO.26AS AND GRANT CREDIT FOR THE TDS AVAILABLE TO T HE APPELLANT. THE GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 16. AS CAN BE SEEN FROM THE GROUNDS OF APPEAL RAISE D BY THE ASSESSEE AND THE ORDER OF THE CIT(A), THE GRIEVANCE OF THE A SSESSEE IS THAT THE AO OUGHT TO HAVE GIVEN CREDIT FOR TDS ON THE BASIS OF TDS CERTIFICATES TO THE EXTENT OF RS.1,46,31,157/- WHICH WERE PRODUCED BEFO RE THE AO AND SHOULD NOT HAVE RESTRICTED GIVING OF CREDIT FOR TDS ONLY O N THE BASIS OF THE CREDIT AS REFLECTING IN FORM 26AS. THE SUBMISSION OF THE LEA RNED DR WAS THAT THE DIRECTIONS OF THE CIT(A) ARE IN ACCORDANCE WITH CBD T CIRCULAR NO.13/2013. THE LEARNED COUNSEL FOR THE ASSESSEE HOWEVER BROUGH T TO OUR NOTICE THE FOLLOWING JUDICIAL PRECEDENTS TO OUR NOTICE:- (A) THE HONBLE DELHI HIGH COURT ON ITS OWN MOTION V. UO & ORS. IN W.P.(C) 2659/2012 & W.P.(C) 5443/2012 DATED 14.3.2013 HELD THAT CBDT INSTRUCTION NO.5/2013 DATE D 08 TH JULY, 2013 WHICH PROVIDES THAT WHEN AN ASSESSEE APP ROACHES THE ASSESSING OFFICER WITH REQUISITE DETAILS AND PA RTICULARS IN THE FORM OF TDS CERTIFICATE AS AN EVIDENCE AGAINST ANY MISMATCHED AMOUNT, THE SAID ASSESSING OFFICER WILL VERIFY WHETHER OR NOT THE DEDUCTOR HAS MADE PAYMENT OF THE TDS IN THE GOVERNMENT ACCOUNT AND IF THE PAYMENT HAS BEEN MADE, CREDIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE. (B) THE HONBLE GUJARAT HIGH COURT IN SMIT DEVENDRA RAJANI V. ACIT [2014] 49 TAXMANN.COM 31 (GUJ) HELD THAT WHERE DEDUCTOR HAVING DEDUCTED TDS, ISSUED FORM NO.16A, C REDIT OF SAME CANNOT BE DENIED TO ASSESSEE DEDUCTEE SOLEL Y ON THE GROUND THAT SUCH CREDIT DOES NOT APPEAR ON ITD SYST EM OF DEPARTMENT AND/OR SAME DOES NOT MATCH WITH ITD SYST EM OF DEPARTMENT. ITA NO.1589/BANG/2016 PAGE 12 OF 12 (C) IN THE CASE OF RAKESH KUMAR GUPTA. UOI [2014] 46 TAXMANN.COM 447 (ALL) , THE HONBLE ALLAHABAD HIGH COURT HELD THAT THE REFUND CLAIM MADE BY THE DEDUCTEE COU LD NOT BE DENIED BY ASSESSING OFFICER ON THE GROUND THAT THER E WAS MIS-MATCH BETWEEN DETAILS FURNISHED BY DEDUCTEE AND FORM 26AS. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AR E OF THE VIEW THAT THE CLAIM OF THE ASSESSEE DESERVES TO BE ACCEPTED I N THE LIGHT OF THE JUDICIAL PRECEDENTS CITED ON BEHALF OF THE ASSESSEE . THE CREDIT FOR TDS HAS TO BE ALLOWED ON THE BASIS OF TDS CERTIFICATES FILED SUBJECT TO VERIFICATION BY THE AO. WE HOLD AND DIRECT ACCORDI NGLY. 18. IN THE RESULT, APPEAL BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF DECEMBER, 2018. SD/- SD/- ( INTURI RAM A RAO ) ( N.V. VASUDEVAN ) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, THE 31 ST DECEMBER, 2018. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. D R, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.