ACIT, New Delhi V. M/s. OKS Span Tech Pvt. Ltd., New Delhi

ITA 1939/DEL/2012

• Counselvise Citation: 193920114 RSA 2012
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 12-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 26-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN P RASAD
• Assessee Lawyers: M M KWATRA
• Section: 10B; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.1939/DEL./2012 (ASSESSMENT YEAR : 2007-08) ACIT, CIRCLE 13 (1), VS. M/S. OKS SPAN TECH PVT. LTD., NEW DELHI. 220, OKHLA INDUSTRIAL ESTATE, PHASE III, NEW DELHI 110 020. (PAN : AAACO5682P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.M. KWATRA, CA REVENUE BY : SHRI GUNJAN PRASAD, CIT DR ORDER PER JOGINDER SINGH, JUDICIAL MEMBER : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 29.11.2011 ON THE GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN OVERLOOKING THE FACT THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPORT OF COMPUTER SOFTWARE FROM TWO UNITS, ONE AT CHENNAI AND OTHER AT DELHI, ON WHICH DEDUCTION U/S 10B OF T HE ACT HAS BEEN CLAIMED OVERLOOKING THE FACT THAT THE ASSESSEE WAS REQUIRED TO FILE TWO SEPARATE AUDITORS REPORT IN FORM NO.56G FOR EACH UNIT FOR C LAIMING SUCH DEDUCTION ITA NO.1939/DEL./2012 2 THEREBY DID NOT FULFILL THE REQUIRED CONDITIONS, CO NSEQUENTLY DID NOT QUALIFY FOR SUCH DEDUCTION. 2. DURING HEARING, WE HAVE HEARD SHRI GUNJAN PRASAD , CIT DR AND SHRI M.M. KWATRA, LD. COUNSEL FOR THE ASSESSEE. THE CRU X OF THE ARGUMENT ON BEHALF OF THE REVENUE IS IDENTICAL TO THE GROUND RA ISED WHEREAS THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDE R. IT WAS CONTENDED THAT THE DEPARTMENT IN EARLIER YEARS ACCEPTED THE CLAIM OF THE ASSESSEE. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN EXPORT OF COMPUTER SOFTWARE, FILED ITS E .RETURN DECLARING INCOME OF ` 5,18,353/- ON 25.10.2007. THE ASSESSEE IS HAVING T WO 100% EXPORT ORIENTED UNITS SITUATED AT CHENNAI AND DELHI. DURING THE YE AR, THE ASSESSEE CLAIMED DEDUCTION OF ` 3,03,94,780/- UNDER SECTION 10B OF THE ACT. THE RE TURN OF THE ASSESSEE WAS FILED IN FORM 56G AS PRESCRIBED IN SUB -SECTION (5) OF SECTION 10B OF THE ACT. THE CLAIM OF THE ASSESSEE IS THAT IT IS THE EIGHTH CONSECUTIVE ASSESSMENT YEAR FOR WHICH ASSESSEE HAD BEEN CLAIMIN G IDENTICAL DEDUCTION. HOWEVER, THE LD. ASSESSING OFFICER DISALLOWED SUCH CLAIM ON THE PLEA THAT SEPARATE AUDITORS REPORT FOR EACH UNIT WAS NOT FIL ED BY THE ASSESSEE. BEFORE COMING TO ANY CONCLUSION, AS PER THE CLAIM OF THE A SSESSEE, THERE ARE CERTAIN UNDISPUTED FACTS WHICH NEED APPRECIATION LIKE BOTH THE UNITS AT CHENNAI AS ITA NO.1939/DEL./2012 3 WELL AS DELHI ARE 100% EXPORT ORIENTED UNITS, APPRO VED BY SOFTWARE TECHNOLOGY PARK OF INDIA, ENGAGED IN EXPORT OF COMP UTER SOFTWARE / IT ENABLED SERVICES. THE BUSINESS OF THE COMPANY IS NOT FORMED BY SPLITT ING / RECONSTRUCTION OF THE BUSINESS AND THE SALE PROCEED S WERE RECEIVED BY THE ASSESSEE OR BROUGHT INTO INDIA IN CONVERTIBLE FOREI GN EXCHANGE WITHIN THE STIPULATED PERIOD. EVEN THE ASSESSING OFFICER HAS NOT DOUBTED OR DISPUTED ANY OF THE CONTENTS OF THE CERTIFICATE. IN VIEW OF THESE FACTS, WE ARE ANALYZING THE LANGUAGE USED IN SECTION 10B OF THE ACT. SUB-S ECTION (1) OF SECTION 10B PROVIDES FOR A DEDUCTION OF SUCH PROFIT DERIVED BY A 100% EXPORT ORIENTED UNDERTAKING FROM THE EXPORT OF ARTICLES OR THINGS O R COMPUTER SOFTWARE FOR A PERIOD OF TEN CONSECUTIVE ASSESSMENT YEARS. THE LD . CIT(A) IN THE IMPUGNED ORDER HAS ALREADY DISCUSSED AMENDMENT IN SECTION 10 B W.E.F. 1.4.2001 ALONG WITH CIRCULAR NO.794 DATED 9.8.2000 ALONG WITH EXPL ANATORY NOTES. THE WHOLE THRUST OF THE ARGUMENT ON BEHALF OF THE ASSES SEE IS THAT THE FORM NO.56G WAS DULY SUBMITTED BEFORE THE ASSESSING OFFI CER DISCLOSING THE ADDRESSES OF BOTH THE UNITS ALONG WITH WORKING OF P ROFIT EARNED BY BOTH UNITS. WE FIND THAT THE GROUND OF REJECTION OF SUCH DEDUCT ION TO THE ASSESSEE IS BASED ON SURMISES AND THE REQUISITE INFORMATION, AS REQUI RED UNDER THE ACT, WAS DULY COMPLIED WITH BY THE ASSESSEE. THE ANOTHER OBJECTI ON OF THE ASSESSING OFFICER THAT THE ASSESSEE IS NOT ENGAGED IN THE MAN UFACTURE OR PRODUCTION OF ARTICLE OR THING, THEREFORE, IT DOES NOT QUALIFY FO R DEDUCTION U/S 10B IS ALSO NOT ITA NO.1939/DEL./2012 4 PROPER BECAUSE THE AMENDMENT IN SECTION 10B W.E.F. 1.4.2001 IS VERY CLEAR AND AFTER SUCH AMENDMENT, THE EXPORT OF COMPUTER SO FTWARE / PROGRAMME IS ALSO ELIGIBLE FOR DEDUCTION UNDER THE SECTION, SUBJ ECT TO THE CONDITIONS LAID DOWN THEREIN. EVEN OTHERWISE, THERE IS UNCONTROVER TED FINDING IN THE IMPUGNED ORDER THAT SUCH CONDITIONS HAVE ALSO BEEN COMPLIED WITH BY THE ASSESSEE, CONSEQUENTLY, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT (A) AND MORE SPECIFICALLY, WHILE ON IDENTICAL FACTS IN EARLIER YEARS, SUCH DEDUCTION IS ALLOWED BY THE DEPARTMENT, THEREFORE, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE. THE STAND OF THE LD. CIT (A) IS AFFIRMED. 4. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 16.11.2012. SD/- (S.V. MEHROTRA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH NOVEMBER, 2012 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.