Appeal details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 2584 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 8 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-09-2016
Appeal Filed By
Department
Bench Allotted
C
Assessment Year
2009-2010
Appeal Filed On
08-01-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ./ I.T.A. NO. 172/MUM/2015 ( / ASSESSME NT YEAR: 2009 - 10 ) ASST. CIT - 15(1)(2), ROOM NO. 403, 4 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 / VS. CALIBER POINT BUSINESS SOLUTIONS LTD. BUILDING NO.3, SECTOR - II, MILLENIUM BUSINESS PARK, ITC INDUSTRIAL AREA, MHAPE, NAVI MUMBAI - 400 710 ./ ./ PAN/GIR NO. AACCC 3705 H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRADEEP KUMAR SINGH / RESPONDENT BY : SHRI ANUJ KISNADWALA / DAT E OF HEARING : 17.8.2016 / DATE OF PRONOUNCEMENT : 28.09 .2016 / O R D E R PER R. C. SHARMA, A. M.: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER BY THE LD. CIT(A) - 22 , MUMBAI DATED 21.10.2014 FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT GROUND NO. 1 RAISED BY THE REVENUE IS IN CORRECT INSOFAR AS THE CIT(A) HAS NOT ADJUDICATED THE SAME. THE LD. DR AND LD. AR FAIRLY CONCEDED THAT THE MATTER WITH REGARD TO THE COMPUTIN G 2 ITA NO. 172/MUM/2015 (A.Y. 2009 - 10) ASST. CIT VS. CALIBER POINT BUSINESS SOLUTIONS LTD. DISALLOWANCE U/S. 14A WHILE COMP UTING BOOK PROFIT U/S. 115JB, BE RESTOR E D BACK TO THE FILE OF THE CIT(A) FOR DECIDING AFRESH. 3. WITH REGARD TO THE ASSESSEES CLAIM OF DEDUCTION U/S. 10A, THE LD. C IT(A) HELD THAT THE ASSESSEE IS ENGAGED IN SOFTWARE DEVEL OPMENT ACTIVITY OUTSOURCED TO THE PARENT COMPANY WAS ELIGIBLE FOR DEDUCTION U/S.1 0A IF THE SAME WAS LO CATED IN ST P I AREA. IN THIS REGARD, WE FIND THAT THE ASSESSEE COMPANY CLAIMED DEDUCTION U/S. 10A OF THE ACT IN RESPECT OF INCOME ARISING FROM SUCH OUTSOU RCED WORK TO ITS PARENT COMPANY. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S. 10A OF THE ACT ON THE GROUND THAT THE SAID INCOME WAS NOT DERIVED FROM THE INDUSTRIAL UNDERTAKING. 4. THE CIT(A) FOLLOWING THE ORDER OF THE HONBLE TRIBUNAL FOR A.Y. 2008 - 09 DIRECTED THE ASSESSING OFFICER TO VERIFY THE FACT WHETHER THE OUTSOURCED WORK WAS DONE BY A UNIT LOCATED IN STPI, AND IF THE SAID FACT IS ESTABLISHED THEN THE ASSESSING OFFICER SHOULD GRANT DEDUCTION U/S.10A OF THE ACT. WE FIND THAT THE ISSUE HA S BEEN CONSIDERED IN ASSESSEE S OWN CASE FOR A.Y. 2008 - 09 BEING ITA NO. 6490/MUM/2011 ORDER DATED 13.2.2013 WHEREIN THE HONBLE TRIBUNAL HAS HELD THAT HE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.10A OF THE ACT ON THE WORK OUTSOURCED TO OTHER COMPANY PROVID ED THE SAID COMPANY IS ALSO LOCATED IN STPI UNIT. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN THE DIRECTIONS SO ISSUED BY CIT(A). 5. IN THE RESULT, GROUND NO. 2 TAKEN BY THE REVENUE IS DISMISSED. 6. IN GROUND NO. 3, THE REVENUE IS AGGRIEVED FOR ALLOWING CL AIM OF EXPENSES NOT MADE IN THE RETURN OF INCOME. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR A.Y.2008 - 09 THE ASSESSEE CLAIMED DEDUCTION OF EXPENSES AND THE AO DISALLOWED THE SAME U/S.40(A)(IA ) BY OBSERVING THAT SAME IS ALLOWABLE ON PAYMENT BASIS. WE FOUND THAT THE SAID EXPENDITURE WAS DISALLOWED IN A.Y. 2008 - 09, BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A). HOWEVER, DURI NG THE YEAR UNDER CONSIDERATION, TDS HAS BEEN DEDUCTED AND PAID ON THE SAID EXPENSES . THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAD NOT PROVED THAT TAXES WERE PAID IN THE CURRENT YEAR. 3 ITA NO. 172/MUM/2015 (A.Y. 2009 - 10) ASST. CIT VS. CALIBER POINT BUSINESS SOLUTIONS LTD. HE H EL D THAT AS PER THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. (284 ITR 323) CLAIM MADE OTHER THAN BY FILI NG REVISED RETURN OF INCOME CANNOT BE ADMITTED. 8. BY THE IMPUGNED ORDER THE CIT(A), AFTER VERIFYING THE FACT THAT TDS WAS DEDUCTED AND PAID ON THE EXPENSES CLAIMED AS DEDUCTION, HELD THAT THE ASSESSEE COMPANY IS ELIGIBLE TO CLAIM DEDUCTION OF THE SAID EXP ENSES EVEN THOUGH THE SAME WAS NOT CLAIMED IN RETURN OF INCOME. 9. W E DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE CIT(A). IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF M/S. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (349 ITR 336) W HEREIN IT WAS HELD THAT THE APPELLATE AUTHORITIES HAVE THE POWER TO ADMIT THE ADDITIONAL CLAIM MADE BY ASSESSEE EVEN THOUGH THE SAME HAS NOT BEEN MADE IN RETURN OF INCOME. IT WAS ALSO HELD THAT THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF GOETZE IN DIA LTD. (284 ITR 323) APPLIES ONLY TO ASSESSING OFFICER AND NOT THE APPELLATE AUTHORITIES. 10. IN VIEW OF THE ABOVE, THE CIT(A) HAS RIGHTLY FOLLOWED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF M/S. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD. (SUPRA). GROUND NO. 3 RAISED BY THE REVENUE IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED IN PART, IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28/09/ 201 6 S D/ - SD/ - ( AMARJIT SINGH ) ( R. C. SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI ; / DATED : 28.09 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 4 ITA NO. 172/MUM/2015 (A.Y. 2009 - 10) ASST. CIT VS. CALIBER POINT BUSINESS SOLUTIONS LTD. 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
