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

ITA 1646/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7455 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-09-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 11-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK AGGARWAL
• Keywords: Revised return
• Section: 143(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 1646 /P U N/20 1 5 / ASSESSMENT YEAR : 20 1 1 - 1 2 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE. . / APPELLANT VS. CLARION TECHNOLOGIES PVT. LTD., 4 TH FLOOR, CYBERCITY, TOWER S - 4, MAGARPATTA CITY, HADAPSAR, PUNE - 411028 . / RESPONDENT PAN: AABCC8321Q / APPELLANT BY : SHRI VIVEK AGGARWAL / RESPONDENT BY : NONE / DATE OF HEARING : 11 .0 9 .2017 / DATE OF PRONOUNCEMENT: 20 .0 9 .2017 / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY THE REVENUE IS AGAINST ORDER OF CIT(A) - I, PUNE , DATED 2 8 . 11 .201 4 RELATING TO ASSESSMENT YEAR 20 1 1 - 1 2 AGAINST THE ORDER PASSED UNDER SECTION 143(3) R.W.S. 144A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX(APPEALS) IS CONTRARY TO THE LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2 . THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT ALTERNATE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT IS REQUIRED TO BE EXAMINED IN ACCORDANCE WITH LAW, ONCE THE LD. CIT(A) HAD UPHELD THE ORDER OF THE ASSESSING OFFICER IN DENYING DEDUCTION U/S 10B. 2 ITA NO. 1646 /PUN/20 15 CLARION TECHNOLOGIES PVT. LTD. 3 . THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN HO LDING THAT ALTERNATE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT IS REQUIRED TO BE EXAMINED IN ACCORDANCE WITH LAW, IGNORING THE PROVISIONS OF SECTION 80A (5) OF THE IT ACT , 1961 WHICH MANDATE THAT NO DEDUCTION U/S 10A WOULD BE ALLOWABLE UNLESS SO CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME. 4 . THE LD COMMISSIONER OF INCOME - TAX (APPEALS) ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT ALTERNATE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT IS REQUIRED TO BE EXAMINED IN ACCORDANCE WITH LAW, IGNORING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD VS CIT REPORTED IN 157 TAXMANN 1, WHEREIN IT HAS BEEN HELD THAT AN ASSESSEE CAN AMEND A RETURN FILED BY HIM FOR MAKING A CLAI M FOR DEDUCTION ONLY BY FILING A REVISED RETURN? 5 . THE LD COMMISSIONER OF INCOME - TAX (APPEALS) ERRED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN HOLDING THAT ALTERNATE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT IS REQUIRED TO BE EXAMINED IN ACCORDANCE WITH LAW, IGNORING DECISION OF THE HON. SC IN THE CASE OF CIT VS SHELLY PRODUCTS REPORTED IN 129 TAXMANN 271 WHEREIN IT HAS BEEN HELD THAT THE ASSESSING AUTHORITY MAY GRANT RELIEF TO AN ASSESSEE IF AN ASSESSEE BY MISTAKE OR IN ADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED IN HIS INCOME ANY AMOUNT WHICH I S EXEMPTED FROM PAYMENT OF INCOME - TAX, OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW, WHICH IS DEARLY NOT ESTABLISHED IN THIS CASE. 6 . FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LEARNED CIT(A) MAY BE VACATED AND THAT OF ASSESSING OFFICER BE RESTORED. 3. THE APPEAL OF REVENUE WAS FIXED FOR HEARING ON 02.08.2017. WHEN AN ADJOURNMENT WAS SOUGHT ON THE GROUND THAT THE ASSESSEES APPEAL FILED FOR THE INSTANT ASSESSMENT YEAR HAS BEEN HEARD ON 01.06 .2017 AND THE ORDER WAS AWAITED; THE HEARING OF APPEAL WAS ADJOURNED TO 11.09.2017. HOWEVER, ON 11.09.2017, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOU RNMENT . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE TRIBUNAL HAD PASSED THE ORDER IN ASSESSEES APPEAL ON 07.06.2017 ITSELF AND THERE WAS NO MERIT IN THE PLEA OF ASSESSEE ON THE EARLIER DATE OF HEARING. HE FURTHER REFERRE D TO THE ORDER OF TRIBUNAL AND POINTED OUT THAT ONCE THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF CIT(A) TO DE NOVO DECIDE THE ISSUE, THEN THE APPEAL OF REVENUE BE ALLOWED. 4. ON PERUSAL OF RECORD, THE ISSUE ARISING IN THE PRESENT APPEAL IN THE FIRST INSTA NCE WAS THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT MADE BY THE 3 ITA NO. 1646 /PUN/20 15 CLARION TECHNOLOGIES PVT. LTD. ASSESSEE IN THE RETURN OF INCOME. THE SAID CL AIM WAS DENIED TO THE ASSESSEE FOR NON - FULFILLMENT OF CONDITIONS LAID DOWN IN SECTION 10B OF THE ACT. BEFORE THE CIT(A), AN ALTERNATE CLAIM WAS MADE FOR DEDUCTION UNDER SECTION 10A OF THE ACT AND THE CIT(A) NOTED THAT THE TRIBUNAL IN ASSESSEES OWN CASE FO R ASSESSMENT YEAR 2010 - 11, IN TURN, RELYING ON THE DECISION OF HONBLE HIGH COURT OF DELHI IN VALIENT COMMUNICATIONS LTD. IN ITA NOS.440 - 441/2012, JUDGMENT DATED 04.01.2013 HAD HELD THE ASSESSEE TO BE ELIGIBLE TO CLAIM THE DEDUCTION UNDER SECTION 10A OF T HE ACT IN CASE IT FULFILLS THE CONDITIONS LAID DOWN IN THE SAID SECTION. THE CIT(A) FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE HAD HELD THAT THE ASSESSEE IS NOT ENTITLED TO GRANT OF DEDUCTION UNDER SECTION 10B OF THE ACT. HOWEVER, THE CIT(A) FOLLOWING THE ORDER OF TRIBUNAL HELD THAT AN ALTERNATE CLAIM MADE BY THE ASSESSEE UNDER SECTION 10A OF THE ACT TO BE LOOKED INTO AND IN CASE THE ASSESSEE FULFILLS THE CONDITIONS, THEN THE SAME MAY BE ALLOWED TO THE ASSESSEE. THE ASSESSEE FILED AN APPEAL A GAINST THE ORDER OF CIT(A). THE SAID APPEAL IN ITA NO.510/PUN/2015 WAS HEA R D ON 01.06.2017 AND THE ORDER WAS PASSED ON 07.06.2017. THE ASSESSEE WAS AGGRIEVED BY THE ORDER OF CIT(A) AND HAD PLEADED BEFORE THE TRIBUNAL THAT THERE WAS NO REQUIREMENT OF ANY APPROVAL OF ANY OTHER AUTHORITY / BOARD FOR OBTAINING THE BENEFITS OF SECTION 10B OF THE ACT WHEN THE ASSESSEE HAS OBTAINED THE REQUISITE APPROVAL FROM THE CENTRAL GOVERNMENT ACTING THROUGH THE DIRECTORATE OF STPI. THE TRIBUNAL VIDE PARA 10 NOTES AS SUCH, THERE IS NO CLEAR GROUND WITH REGARD TO ALTERNATIVE CLAIM OF DEDUCTION U/S. 10A OF THE ACT. THE TRIBUNAL THEREAFTER, HAS SET ASIDE THE MATTER TO THE CIT(A) TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 5. IN THE PRESENT APPEAL FILED BY THE REVENUE , THE ISSUE RAISING IS REGARDING ALTERNATE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT, WHEREIN THE CIT(A) AFTER DENYING THE DEDUCTION UNDER SECTION 10B OF THE ACT HAD ASKED THE ASSESSING OFFICER TO EXAMINE THE SAME IN ACCORDANCE WITH LAW. IN VIEW OF THE 4 ITA NO. 1646 /PUN/20 15 CLARION TECHNOLOGIES PVT. LTD. PL EA OF ASSESSEE BEFORE THE TRIBUNAL IN ASSESSEES OWN APPEAL FOR THE INSTANT ASSESSMENT YEAR AND ALSO BECAUSE OF SETTING ASIDE OF THE ISSUE OF THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT TO THE CIT(A), THE ALTERNATE CLAIM FOR DEDUCTION UNDER SECTION 10A OF THE ACT DOES NOT STAND. ACCORDINGLY, WE REVERSE THE FINDINGS OF CIT(A) IN THIS REGARD. THE ASSESSEE ADMITTEDLY, HAD NOT ASKED FOR THE ALTERNATE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT AS IS NOTED BY THE TRIBUNAL IN PARA 10 OF ITS ORDER DA TED 07.06.2017. IN VIEW THEREOF, WE HOLD THAT THE ASSESSEE IS NOT ENTITLED TO THE ALTERNATE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, ALLOWED. 6. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED. ORDER PRONOUNCED ON THIS 20 TH DAY OF SEPTEMBER , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 20 TH SEPTEMBER , 201 7 . G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , PUNE ; 4. / THE C IT - I , PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE