Appeal Details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 0265 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
2 year(s) 2 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-12-2016
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
A
Next Hearing Date
21-12-2016
Assessment Year
2009-2010
Appeal Filed On
07-10-2014
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO.963/PUN/2013 % % / ASSESSMENT YEAR : 2007-08 A CIT, C IRCLE - 7 , PUNE . / APPELLANT V/S SYMANTEC SOFTWARE INDIA PVT. LTD., (FORMERLY VERITAS SOFTWARE INDIA PVT. LTD. S.NO.210/1A, SYMPHONY, RANGE HILLS, PUNE 411 020 PAN : AAACV6015F . /RESPONDENT C.O. NO.72/PUN/2014 (ARISING OUT OF ITA NO.963/PUN/2013 % % / ASSESSMENT YEAR : 2007-08 SYMANTEC SOFTWARE INDIA PVT. LTD., (FORMERLY VERITAS SOFTWARE INDIA PVT. LTD. EON FREE ONE, 05 TH FLOOR, WING-1, CLUSTER-B, PLOT NO.1, SURVEY NO.77, MIDC KNOWLEDGE PARK, KHARADI, PUNE 411 014 PAN : AAACV6015F . / APPELLANT V/S DCIT, CIRCLE - 7, PUNE . /RESPONDENT . / ITA NO.1799/PUN/2014 % % / ASSESSMENT YEAR : 2009-10 DCIT, CIRCLE - 7, PUNE . / APPELLANT V/S SYMANTEC SOFTWARE INDIA PVT. LTD., S.NO.3/8, ICON BANER ROAD, BANER, PUNE 411045 PAN : AAACV6015F . /RESPONDENT 2 SYMANTEC SOFTWARE INDIA PVT. LTD. . / ITA NO.1821/PUN/2014 % % / ASSESSMENT YEARS : 2009-10 M/S. SYMANTEC SOFTWARE INDIA PRIVATE LIMITED, ICON, S.NO.3/8, BANER ROAD, PUNE 411045 PAN : AAACV6015F . / APPELLANT V/S JCIT, RANGE - 7, PUNE . /RESPONDENT . / ITA NO.591/PUN/2015 % % / ASSESSMENT YEARS : 2010-11 M/S. SYMANTEC SOFTWARE INDIA PRIVATE LIMITED, 05THE FLOOR, WING-1, CLUSTER-B, PLOT NO.1, SURVEY NO.77, MIDC, KNOWLEDGE PARK, EON, KHARADI, PUNE 411 014 PAN : AAACV6015F . / APPELLANT V/S DCIT, CIRCLE - 6, PUNE . /RESPONDENT ASSESSEE BY : SHRI PRAMOD ACHUTHAN, SHRI SWAPNI L BAFNA & SHRI RAJENDRA AGIWAL REVENUE BY : SHRI RAJEEV KUMAR & SHRI SUHAS KULKA RNI / ORDER PER R.K.PANDA, AM : ITA NO.963/PUN/2013 FILED BY THE REVENUE AND CO NO.72/PN/2014 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 06-02-2013 OF THE CIT(A)-IT/TP, PUNE RELATING TO A SSESSMENT YEAR 2007-08. ITA NO.1799/PUN/14 FILED BY THE REVENUE A ND ITA NO.1821/PUN/2014 FILED BY THE ASSESSEE ARE CROSS APPEAL S AND ARE DIRECTED AGAINST THE ORDER DATED 28-07-2014 OF THE CIT (A)-IT/TP, PUNE / DATE OF HEARING :20.12.2016 / DATE OF PRONOUNCEMENT:28.12.2016 3 SYMANTEC SOFTWARE INDIA PVT. LTD. RELATING TO ASSESSMENT YEAR 2009-10. ITA NO.591/PUN/20 15 FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24-02 -2013 PASSED BY THE ASSESSING OFFICER U/S.143(3) R.W.S. 144C OF THE I.T. ACT, 1 961. FOR THE SAKE OF CONVENIENCE, ALL THESE APPEALS WERE HEARD TO GETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA 963/PUN/2013 (BY REVENUE) (A.Y. 2007-08) CO.NO.72/PUN/2014 (BY ASSESSEE) - (A.Y. 2007-08) : 2. GROUND OF APPEAL NO.1 BY THE REVENUE READS AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S.10A ON THE PROFIT OF UNIT B ALSO. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF PROVIDING SOFTWARE DEVELOPMENT SERVICES TO VARIOUS GROUP ENTITIES OUTSIDE INDIA. IT FILED ITS RETURN OF INCOME ON 31-10-2007 DISCLOSING TOTAL INCOME OF RS.51,93,24,908/- AFTER CLAIMING DEDUCTION OF RS.26,99,57,988/- U/S.10A OF THE I.T. ACT ON PROFITS DERIVED FROM UNIT-B. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSE SSING OFFICER OBSERVED THAT THE ASSESSEE COMPANY WAS INCORPOR ATED ON 12- 09-1995 AND ENGAGED IN SOFTWARE DEVELOPMENT/RESEARCH A ND DEVELOPMENT (R&D SERVICES) TO VARIOUS VERITAS GROUP ENTITI ES OUTSIDE INDIA RIGHT FROM THE BEGINNING. IT OBTAINED REGISTRATION FOR THE FIRST TIME UNDER STPI ON 16-11-1995. THE ASSESSEE IS CARRYIN G OUT ITS OPERATION FROM DIFFERENT PLACES AFTER TAKING APPROVAL FOR EXE MPTION FROM THE STPI AUTHORITIES FOR ALL THESE PLACES AS PER THE DETAILS GIVE N BY THE ASSESSING OFFICER AT PAGE 3 OF THE ASSESSING OFFICER, WHIC H ARE AS UNDER : 4 SYMANTEC SOFTWARE INDIA PVT. LTD. SR. NO. ADDRESS DATE OF STP I APPROVAL UNIT 1 SYMPHONY IST FLOOR 20 - 08 - 1997 A 2 SYMPHONY 2 ND FLOOR 20 - 08 - 1997 A 3 SYMPHONY 6 TH FLOOR 18 - 01 - 1999 A 4 OFFICE NO.584 12 - 05 - 1999 A 5 MY FAIR OFFICE NO.104, 303, 304 24 - 05 - 2001 A 401, 402, 403, 404, 24 - 05 - 2000 A 501, 502, 503, 504 30 - 11 - 1999 601, 602, 603, 604 30 - 11 - 1999 6 PUNE IT PARK OFFICE NO.4 TH FLOOR & 5 TH FLOOR, 6 TH FLOOR 27 - 06 - 2001 10-01-2002 A 7 PUNE IT PARK, BLDG.B 34, AUNDH ROAD OCT., 2003 B 8 GODREJ CASTLE MARINE, BUND GARDEN ROAD, RUBY HALL MARCH, 2004 A 9 BIND VIEW OFFICE, MRSS 5, B.J. ROAD, NEAR SADHU VASWANI CHOWK, PUNE 05 - 11 - 2004 B 5. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE COMPANY HAS TREATED ALL THE PLACES AS BRANCHES UNDER UNIT-A FOR WHICH DEDUCTION U/S.10A HAD BEEN CLAIMED. HOWEVER, THE PLACES AS MENTION ED AT SL.NO.7 AND 9 ABOVE HAVE BEEN CALLED UNIT-B FOR WHICH STPI APPROVAL FOR EXPANSION WAS TAKEN ON 08-10-2003 AND 05-11-2004 RESPECTIVELY. THE ASSESSEE HAS CALLED IT SEPARATE UNDERTAKING AND STA RTED CLAIMING DEDUCTION U/S.10A FROM A.Y. 2004-05. HE, THEREFORE, ASKED T HE ASSESSEE TO JUSTIFY AS TO WHY DEDUCTION U/S.10A SHOULD NOT BE DISALLOWED CONSIDERING THAT FOR LAST 3 YEARS THE SAME HAS BEEN DISALLOWED BASED ON THE GROUND THAT UNIT-B HAS BEEN FORM ED BY SPLITTING UP OF THE BUSINESS OF UNIT-A. IT WAS EXPLAINED BY THE ASSESSEE THAT THE CIT(A) IN A.Y. 2004-05, AFTER OBTAINING THE REMAND REPORT FROM THE ASSESSING OFFICER AND CONSIDERING THE CONTENTION OF THE ASSESSEE, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ASS ESSEE ALSO RELIED UPON THE SUBMISSIONS MADE IN THE PRECEDING ASSESSMENT YEAR S. 6. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO HIM, UNIT- B WAS AN 5 SYMANTEC SOFTWARE INDIA PVT. LTD. EXTENSION OF THE EXISTING BUSINESS. SINCE THE ASSESSEE IN RESPECT OF UNIT-B IS CLAIMING DEDUCTION U/S.10A BEYOND 10 YEARS, THERE FORE, IT IS NOT ELIGIBLE TO CLAIM THE DEDUCTION. HE ACCORDINGLY RESTRIC TED THE DEDUCTION U/S.10A OF THE I.T. ACT. 7. IN APPEAL THE LD.CIT(A) FOLLOWING THE ORDER OF THE TRIBUNA L FOR A.Y. 2004-05 IN ASSESSEES OWN CASE ALLOWED THE CLAIM OF D EDUCTION HOLDING THAT UNIT-B IS AN INDEPENDENT AND DISTINCT UNIT FROM UNIT-A WHICH IS ELIGIBLE TO CLAIM DEDUCTION U/S.10A. 8. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 9. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBM ITTED THAT THE REVENUE HAS CHALLENGED THE ORDER OF THE TRIBUNAL BEFO RE THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT VIDE ITA NO.1534/2012 ORDER DATED 12-12-2014 HAS DISMISSED THE APPEAL FILED BY THE REVENUE BY HOLDING THAT UNIT-B IS A SEPARATE AND INDEPENDENT UNIT. THEREFORE, THIS BEING A COVERED MATTER IN FAVOUR OF T HE ASSESSEE THE GROUNDS RAISED BY THE REVENUE SHOULD BE DISMISSED. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND WHILE SUPPORTING THE ORDER OF THE ASSESSING OFFICER FAIRLY CONCED ED THAT THE HONBLE HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT UNIT-B IS A SEPARATE INDEPENDENT UNIT. 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A ) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE ASS ESSING OFFICER RESTRICTED THE DEDUCTION U/S.10A OF THE I.T. ACT ON THE GROUND THAT THE SO CALLED UNIT-B TREATED BY THE ASSESSEE IS NOTHING BUT A ME RE 6 SYMANTEC SOFTWARE INDIA PVT. LTD. EXPANSION OF UNIT-A AND THEREFORE NOT ELIGIBLE FOR DEDUCTION U/S.10A OF THE I.T. ACT. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE TH E TRIBUNAL IN ASSESSEES OWN CASE AND THE TRIBUNAL UPHELD THE FINDING S GIVEN BY THE COMMISSIONER APPEALS BY CONCLUDING THAT MERELY BECAU SE A NEW PERMISSION IS OBTAINED IN RELATION TO ITS UNIT, CONTAINING REFER ENCE TO THE ORIGINAL LICENSE, THIS IS NOT CONCLUSIVE TO DEMONSTRATE T HAT THE NEW UNIT IS NOT A SEPARATE OR INDEPENDENT UNIT. THE REVENUE CHALLEN GED THE ORDER OF THE TRIBUNAL AND THE QUESTION NO.14 WHICH WAS RA ISED ON THIS ISSUE READS AS UNDER : 4(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN UPHOLDING THE ASSESSEES CLAIM FOR TREATING UNIT-B AS A SEPARATE AND INDEPENDENT UNIT FOR THE PURPOSE OF CL AIMING DEDUCTION U/S.10A OF THE I.T. ACT? 12. THE HONBLE HIGH COURT ANSWERED THE QUESTION BY OB SERVING AS UNDER : 10. IN RELATION TO QUESTION NO.4A, WHAT THE TRIBUNA L HOLDS IS THAT THE DEPARTMENTAL REPRESENTATIVE URGED THAT THE ASSESSING OFF ICER WAS JUSTIFIED IN HOLDING THAT UNIT-B COULD NOT BE TREATE D AS INDEPENDENT UNIT OF THE PURPOSE OF CLAIM OF DEDUCTION UNDER SECTION 10A O F THE IT ACT. THE FINDING OF FACT RENDERED BY THE ASSESSING OFFICER HAS BE EN ERRONEOUSLY REVERSED BY THE FIRST APPELLATE AUTHORITY. THE INTEN TION OF THE ASSESSEE WAS TO CLAIM UNIT-B AS A SEPARATE UNIT. THAT IS TO EN ABLE IT TO EXTEND THE TAX HOLIDAY OF 10 YEARS ENJOYED BY UNIT-A AND PARTICULAR LY WHEN IT WAS COMING TO AN END IN THE ASSESSMENT YEAR 2005-06. THE ASSESSEE SUPP ORTED THE FINDING OF THE COMMISSIONER. IN PARA 9, THE TRIBUNAL EXTENSIVELY REFERS TO THE DOCUMENTS PLACED ON RECORD. THE NATURE OF THE B USINESS ACTIVITIES, LOCATION, LEASE AGREEMENT, LAYOUT PLANS AND PHOTOGRA PHS OF THE PREMISES UNIT-B, WHICH ARE ALL FORMING PART OF THE ORDER OF THE COMMISSIONER AND THE REMAND REPORT OF THE ASSESSING OFFICER HAVE BEEN EX TENSIVELY REFERRED TO. THE TRIBUNAL CONCLUDES THAT ALL THIS MATERIAL SHO WS THAT UNIT-B IS A SEPARATE OR AN INDEPENDENT UNIT. THAT IT HOUSED IN DIFFERENT PREMISES. NO CONTRARY MATERIAL WAS BROUGHT ON RECORD BY THE DEPAR TMENTAL REPRESENTATIVE OR THE REVENUE BEFORE THE TRIBUNAL. THE TRIBUNAL HAS ALSO AFFIRMED A FINDING OF FACT OF THE COMMISSIONER BY CON CLUDING THAT MERELY BECAUSE A NEW PERMISSION IS OBTAINED IN RELATION TO TH IS UNIT, CONTAINING REFERENCE TO THE ORIGINAL LICENCE, THAT IS NOT CONCL USIVE TO DEMONSTRATE THAT THE NEW UNIT IS A SEPARATE OR INDEPENDENT UNIT. THE SOFTWARE TECHNOLOGY PARK IS THE BROAD IDENTITY OF THE AREA, BUT THE UNIT -B IS HELD NOT TO BE EXPANSION OF THE EXISTING UNIT-A, RATHER IT IS A SEPARA TE OR AN INDEPENDENT UNIT. SUCH FINDINGS OF FACT TO OUR MIND DOES NOT RAI SE ANY SUBSTANTIAL 7 SYMANTEC SOFTWARE INDIA PVT. LTD. QUESTION OF LAW. THE MATERIAL ON RECORD WAS ENOUGH T O CONCLUDE ABOUT THE UNIT-B BEING SEPARATE OR INDEPENDENT. 13. SINCE THE HONBLE HIGH COURT HAS ALREADY UPHELD THE FINDING GIVEN BY THE TRIBUNAL THAT UNIT-B IS A SEPARATE AND INDEP ENDENT UNIT FOR THE PURPOSE OF CLAIMING DEDUCTION U/S.10A OF THE I.T. A CT, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE AGAINST THE DECISION OF THE HONBLE HIGH COURT IN ASSESSEES OWN CASE, WE FIND NO INFIR MITY IN THE ORDER OF THE CIT(A) HOLDING THAT ASSESSEE IS ENTITLED TO CLA IM DEDUCTION U/S.10A IN RESPECT OF UNIT-B. ACCORDINGLY, THE ORDER OF THE CIT(A) IS UPHELD. GROUND OF APPEAL NO.1 BY THE REVENUE IS DISMISSED. 14. GROUND OF APPEAL NO.2 BY THE REVENUE AND GROUNDS OF APPEAL NO.1 TO 8 BY THE ASSESSEE RELATE TO TRANSFER PRICING ADJUSTMENT. 15. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET FILED A LETTER REQUESTING FOR WITHDRAWAL OF THE CROSS OBJECTION PURSUANT TO ACCEPTANCE OF RESOLUTION REACHED UNDER MUTUAL AGREEMENT PROCEDURE (IN SHORT MAP). HE SUBMITTED THAT THE AE OF THE ASSESS EE, BASED OUT OF USA HAD APPLIED FOR MAP WITH THE COMPETENT AUTHORITIES OF USA. THE COMPETENT AUTHORITIES OF INDIA AND USA HAVE REACHED A CONCLUSION ON THE MAP. REFERRING TO THE LETTER ADDRESSED BY THE D CIT, CIRCLE-6, PUNE DATED 02-11-2016 HE SUBMITTED THAT THE DCIT HAD ISSUED A LET TER TO THE ASSESSEE STATING THAT HE HAS RECEIVED MAP RESO LUTION FOR A.Y. 2006-07 TO 2010-11 ON 21-10-2016 AND HAS REQUESTED THE ASSESSEE TO GIVE ITS ACCEPTANCE LETTER IN THIS REGARD WITHIN A WEEK O F RECEIPT OF THE LETTER. HE SUBMITTED THAT THE ASSESSEE HAS ALREADY GIV EN ITS ACCEPTANCE TO THE PROPOSED RESOLUTION UNDER MAP TO EN ABLE THE ASSESSING OFFICER TO GIVE EFFECT TO THE RESOLUTION AGREED UND ER MAP. THE 8 SYMANTEC SOFTWARE INDIA PVT. LTD. ASSESSEE WOULD NEED TO FULFIL CERTAIN CONDITIONS AS PROVIDED UNDER RULE 44H OF THE INCOME TAX RULES, 1962. THEREFORE THE ASSES SEE WOULD LIKE TO WITHDRAW THE CROSS OBJECTION FILED BY IT. 16. SO FAR AS THE APPEAL FILED BY THE REVENUE IS CONCERNE D HE SUBMITTED THAT ALTHOUGH THE CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, STILL THE SAME ALSO SHOULD BE DISMISSED WITH A LIBERTY TO THE REVENUE TO COME BACK TO THE TRIBUNAL IN CASE THE M AP IS NOT ACCEPTED BY THE REVENUE. 17. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED TO THE ABOVE PROPOSITION OF THE LD. COUNSEL FOR THE ASSESSEE. 18. IN VIEW OF THE LETTER OF THE ASSESSEE COMPANY REQUE STING PERMISSION FOR WITHDRAWAL OF THE CROSS OBJECTION PURSUANT TO ACCEPTANCE OF RESOLUTION REACHED UNDER MAP, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. THE GROUND OF APPEAL NO.2 FILED BY THE REVENUE IS ALSO DISMISSED PURSUANT TO ACC EPTANCE BY THE ASSESSEE OF THE RESOLUTION REACHED UNDER MAP WITH A LIBERTY TO THE REVENUE TO COME BACK TO THE TRIBUNAL IN CASE IT IS AGGRIE VED BY THE MAP. ACCORDINGLY, THE TRANSFER PRICING ISSUES INVOLVED IN I TA NO.963/PN/2013 AND CO NO.72/PN/2014 ARE DISMISSED. 19. IN GROUND OF APPEAL NO.9 AND 10 THE ASSESSEE HAS CH ALLENGED THE LEVY AND ERRONEOUS COMPUTATION OF INTEREST U/S.234B OF THE I.T. ACT. 20. AFTER HEARING BOTH THE SIDES AND IN VIEW OF OUR RESTO RING THE ISSUE OF TRANSFER PRICING ADJUSTMENT TO THE FILE OF THE AS SESSING OFFICER IN THE LIGHT OF THE ACCEPTANCE OF RESOLUTION REACHED UND ER MAP, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RECOMPUTE THE LEVY OF INTEREST U/S.234B OF THE I.T. ACT W HICH IS 9 SYMANTEC SOFTWARE INDIA PVT. LTD. MANDATORY AND CONSEQUENTIAL IN NATURE. GROUND OF APPEAL NO.9 AND 10 IN THE CO ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1799/PUN/2014 (BY REVENUE) (A.Y. 2009-10) ITA NO.1821/PUN/2014 (BY ASSESSEE) - ( A.Y.2009-10) 21. GROUND OF APPEAL NO. 1 BY THE REVENUE READS AS UNDER : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)- IT/TP, ERRED IN LAW ALLOWING DEDUCTION U/S.10A ON PR OFITS OF UNIT-B. 22. AFTER HEARING BOTH THE SIDES, WE FIND THE ABOVE GROUN D IS IDENTICAL TO GROUND OF APPEAL NO.1 BY THE REVENUE IN ITA NO.963/PUN/2013 FOR A.Y. 2007-08. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUND RAISED BY THE REVENUE HAS BEEN D ISMISSED. FOLLOWING THE SAME REASONINGS, THE ABOVE GROUND BY THE R EVENUE IS DISMISSED. 23. GROUNDS OF APPEAL NO.1 TO 12 BY THE ASSESSEE AND G ROUNDS OF APPEAL NO.2 AND 3 BY THE REVENUE RELATE TO TRANSFER PRIC ING ADJUSTMENT. 24. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE ASSESSEE WANTS TO WITHDRAW THE APPEAL FILED BY IT ON TRANSFER PRICING ISSUES PURSUANT TO ACCEPTANCE OF RESOLUTION REACH ED UNDER MAP. SO FAR AS THE APPEAL FILED BY THE REVENUE IS CONCERN ED HE AGAIN REITERATED THAT THE GROUND OF APPEAL NO.2 AND 3 FILED BY THE REVENUE ON THE TRANSFER PRICING ISSUE SHOULD BE DISMISSED PURSUAN T TO ACCEPTANCE OF RESOLUTION REACHED UNDER MAP WITH A LIBERTY TO REVENUE TO COME BACK TO THE TRIBUNAL IN CASE THEY ARE AGGRIEVED BY THE MAP. 10 SYMANTEC SOFTWARE INDIA PVT. LTD. 25. AFTER HEARING BOTH THE SIDES AND IN THE LIGHT OF OUR O BSERVATIONS AT PARA 18 OF THIS ORDER WHILE DECIDING THE APPEAL FOR A.Y. 2 007-08, WE ACCEPT THE REQUEST OF THE ASSESSEE TO WITHDRAW ITS GRO UNDS RELATING TO TRANSFER PRICING ADJUSTMENT FOR A.Y. 2009-10. SIMILARLY, THE GROUNDS OF APPEAL NO.2 AND 3 RAISED BY THE REVENUE ARE ALSO DISMIS SED WITH A LIBERTY TO THE REVENUE TO COME BACK TO THE TRIBUNAL IN C ASE THEY ARE AGGRIEVED BY THE MAP. ACCORDINGLY, THE ABOVE GROUNDS ARE DISMISSED . 26. GROUND OF APPEAL NO.13 BY THE ASSESSEE RELATES TO E RRONEOUS COMPUTATION OF INTEREST U/S.234B OF THE I.T. ACT. 27. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONSIDER ED OPINION THAT CHARGING OF INTEREST U/S.234B IS MA RESTORE THE ISSU E TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO COMPUTE THE INT EREST U/S.234B AS PER LAW AFTER GIVING DUE OPPORTUNITY OF BEARING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. ITA NO.591/PUN/2015 (A.Y. 2010-11) : 28. GROUNDS OF APPEAL NO.1 TO 13 BY THE ASSESSEE RELATE S TO TRANSFER PRICING ADJUSTMENT. 29. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT W ANTS TO WITHDRAW THE GROUNDS RELATING TO TRANSFER PRICING ADJUSTM ENT PURSUANT TO RESOLUTION REACHED UNDER MAP. 30. IN VIEW OF THE REQUEST OF THE ASSESSEE TO WITHDRAW GROUNDS OF APPEAL NO.1 TO 13 PURSUANT TO THE RESOLUTION REACHED UN DER MAP AND IN THE LIGHT OF OUR DISCUSSION IN THE PRECEDING PARAGRAPHS THE REQUEST OF THE ASSESSEE TO WITHDRAW THE ABOVE GROUNDS ARE ALLOW ED. GROUNDS OF APPEAL NO. 1 TO 13 ARE ACCORDINGLY DISMISSED AS WITHDRAWN. 11 SYMANTEC SOFTWARE INDIA PVT. LTD. 31. GROUND OF APPEAL NO.B BY THE ASSESSEE READS AS UNDER : GROUNDS PERTAINING TO CORPORATE TAX ADJUSTMENT. ERRED IN DISALLOWING DEDUCTION OF RS.1,16,708 (DONATI ON AMOUNT MADE RS.2,33,145) UNDER SECTION 80G OF THE ACT, WITHOUT FO LLOWING HONBLE DRPS DIRECTIONS TO VERIFY DONATION RECEIPT ALONG WIT H APPROVAL UNDER SECTION 80G(5)(VI) OF THE ACT WHICH WAS SUBMITTED BEFO RE THE HONBLE DRP. 32. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT ALTHOUGH THE HONBLE DRP HAD ISSUED A DIRECTION TO VERIF Y THE DONATION RECEIVED ALONG WITH APPROVAL U/S.80G(5)(VI), HOWEVER, THE ASSE SSING OFFICER HAS NOT FOLLOWED THE DIRECTION OF THE DRP. THEREFOR E, A DIRECTION MAY BE ISSUED TO THE ASSESSING OFFICER TO ALLOW TH E CLAIM OF DEDUCTION U/S.80G AFTER VERIFYING THE DONATION RECEIPTS A LONG WITH APPROVAL U/S.80G(5)(VI). 33. AFTER HEARING BOTH THE SIDES, WE RESTORE THE ISSUE T O THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE CLAIM OF DEDUCTION U/S.80G OF THE ACT AFTER VERIFYING THE DONATION RECEIPTS ALONG WITH APPROVAL U/S.80G(5)(VI) OF THE ACT. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCO RDINGLY. ACCORDINGLY, THIS GROUND BY THE ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. 34. GROUND OF APPEAL NO.14 BY THE ASSESSEE RELATES TO LEVY OF INTERES T U/S.234B, 234C AND 234D OF THE I.T. ACT. 35. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONSIDER ED OPINION THAT LEVY OF INTEREST U/S.234B, 234C AND 234D OF THE I.T. ACT IS 12 SYMANTEC SOFTWARE INDIA PVT. LTD. MANDATORY AND CONSEQUENTIAL IN NATURE. ACCORDINGLY, THIS GROUND BY THE ASSESSEE IS DISMISSED. 36. GROUND OF APPEAL NO.15 RELATES TO LEVY OF PENALTY U/S.2 71(1)(C) OF THE I.T. ACT. 37. AFTER HEARING BOTH THE SIDES, WE ARE OF THE CONSIDER ED OPINION THAT THE ABOVE GROUND BY THE ASSESSEE IS PREMATURE A T THIS JUNCTURE. ACCORDINGLY, THE SAME IS DISMISSED. 38. IN THE RESULT, ITA NO.963/PUN/2013 AND ITA NO.1799/PUN/2014 FILED BY THE REVENUE ARE DISPOSED OF IN T HE TERMS INDICATED ABOVE AND CO NO.72/PUN/2014 AND ITA NO.591/P UN/2015 FILED BY THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PUR POSES. ITA NO.1821/PUN/2014 FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28-12-2016. SD/- SD/- (SUSHMA CHOWLA) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; ! DATED : 28 TH DECEMBER, 2016. ' (*+ ,+/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-IT/TP, PUNE 4. THE DIT- TP/IT, PUNE 5. # &&' , ' , / DR, ITAT, A PUNE; 6. * / GUARD FILE. / BY ORDER, // # & //TRUE COPY // // TRUE COPY // ,- & ' / SR. PRIVATE SECRETARY 13 SYMANTEC SOFTWARE INDIA PVT. LTD. ' , / ITAT, PUNE
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