Deputy Commissioner of Income-tax, V. Aress Software and Education Technologies Pvt. Ltd., Nashik

ITA 284/PUN/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7110 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL CHAWARE
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2 8 4 /P U N/20 1 5 / ASSESSMENT YEAR : 20 11 12 DY.COMMISSIONER OF INCOME - TAX, CIRCLE 1, NASHIK . / APPELLANT VS. ARESS SOFTWARE AND EDUCATION TECHNOLOGIES PVT. LTD, S 2, SUYOJIT SANKUK, SHARANPUR ROAD, NASHIK. PAN: AACCA8829J . / RESPONDENT / APPELLANT BY : SHRI ANIL CHAWARE / APPELLANT BY : SHRI ANIL CHAWARE / RESPONDENT BY : SHRI KISHORE PHADKE & K.V.CHITRE / DATE OF HEARING : 09 . 0 2 .201 7 / DATE OF PRONOUNCEMENT: 17 . 02 .201 7 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY REVENUE IS AGAINST ORDER OF COMMISSIONER OF INCOME TAX(APPEALS) - 1 , NASHIK , DATED 08/01/2015 RELATING TO ASSESSMENT YEAR 20 11 12 AGAINST ORDER PASSED UNDER SECTION143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). ITA NO. 2 8 4/ P U N/20 1 5 M/S.ARESS SOFTWRE & EDU. TECH. P.LTD 2 2. THE LD. AR FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY SERIES OF DECISION, WHICH HAVE BEEN APPLIED BY THE COMMISSIONER OF INCOME TAX(APPEALS) TO ALLOW THE CLAIM OF THE ASSESSEE . 3. BRIEFLY IN THE FACTS OF THE ASSESSEE CASE , THE ASSESSEE WAS A PRIVATE LIMITED COMPANY ENGAGED IN DEVELOPMENT AND EXPORT OF COMPUTER SOFTWARE AND IT ENABLED SERVICES. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS ALSO ENGAGED IN RUNNING COMPUTER EDUCATION ACADEMY. THE ASSESSEE HAD CLAIMED THE DEDUCTION U/S 10B OF THE ACT AGAINST THE PROFIT DERIVED FROM EXPORT OF COMPUTER SOFTWARE AND IT ENABLED SERVICES FROM ITS 100% EXPORT ORIENTED UNDERTAKING. THE ASSESSING OFFICER NOTED THAT THE STATUS OF 100 % EOU WAS CONFERRED UNDER THE STPI , W HEREAS THE DEDUCTION U/S 10B OF THE ACT IS ALLOWED TO UNDERTAKING , WHICH ARE CONFERRED WITH THE STATUS OF 100% EOU BY THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT. THE ASSE SSEE DURING THE ASSESSMENT PROCEEDINGS ALTERNATIVELY CLAIMED THE DEDUCTION U/S 10A OF ACT . HOWEVER, THE ASSESSING OFFICER REJECTED THE INITIAL CLAIM OF DEDUCTION U/S 10B OF THE ACT AND ALSO REJECTED THE ALTERNATE CLAIM OF U/S 10A OF THE ACT , S INCE NO SUCH DEDUCTION WAS CLAIMED IN THE RETURN OF INCOME. T HE ASSESSING OFFICER ALSO DISALLOWED TO UR EXPENSES TO THE EXTENT OF RS.1,02,095/ - . 4. BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE CLAIMED THAT AN ALTERNATE PLEA WAS RAISED BEFORE THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEDUCTION U/S 10A OF THE ACT , WHICH HAS NOT BEEN ALLOW ED TO THE ASSESSEE. THE CIT(A) HELD THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM THE DEDUCTION U/S 10B OF THE ACT. HOWEVER, THE ASSESSEES CLAIM FOR ITA NO. 2 8 4/ P U N/20 1 5 M/S.ARESS SOFTWRE & EDU. TECH. P.LTD 3 DEDUCTION WAS CONSIDERED IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN CIT VS. P RUTHI B ROKERS AND SHAREHOLDERS PRIVATE LIMITED 349 ITR 336 ( BOM ) AND REMAND REPORT WAS CALLED FROM THE ASSESSING OFFICER. AS PER THE REPORT , THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAD COMPLIED WITH ALL ELIGIBILITY CONDITIONS FOR AVAILING THE EXEMPTION U/S 10A OF THE ACT. RELYING ON THE RATIO LAID DOWN BY THE PUNE BENCH OF THE TRIBUNAL IN CLARION TECHNOLOGIES PVT. LTD V/S DCIT IN ITA NOS.2554/PN/2012 & 2610/PN/2012 RELATING TO THE AY 2009 - 10 AND OTHERS, ORDER DATED 3 0 /10/2014 , THE CIT(A) ALLOWED THE CLAIM. T HE REVENUE IS IN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). 5 . MR. ANIL CHAWARE APPEARED FOR THE REVENUE AND MR.KISHORE PHADKE & K.V.CHITRE APPEARED FOR THE ASSESSEE AND PUT F ORWARD THEIR CONTENTIONS. 6 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORDS. THE ISSUE WHICH ARISE S IN THE PRESENT APPEAL IS AGAINST THE CLAIM OF DEDUCTION U/S 10A OF THE ACT. THE ASSESSEE WAS A 100% EXPORT ORIENTED UNIT REGISTERED UNDER THE STPI. IN THE RETURN OF INCOME THE ASSESSEE CLAIMED THE DEDUCTION U/S 10B OF THE ACT WHICH WAS DENIED TO THE ASSESSEE , SINCE THE EOU UNIT WAS NOT RECOGNIZED BY THE BOARD. HOWEVER, THE ASSESSEE MADE AN ALTERNATE CLAIM BEFORE THE ASSESSING OFFICER HIMSELF THAT IT SHOULD BE ALLOWED THE DEDUCTION U/S 10A OF THE ACT , SINCE IT WAS STPI UNIT. THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE ASSESSING O FFICER AS NO S UCH CLAIM HAS MADE IN THE RETURN OF INCOME. HOWEVER, THE CIT(A) HAS ALLOWED THE CLAIM OF ASSESSEE. WE FIND THAT THE ISSUE STANDS COVERED BY VARIOUS DECISIONS OF THE TRIBUNAL. THE TRIBUNAL IN CLARION TECHNOLOGIES PVT. LTD VS. DCIT (SUPRA) HA D LAID DOWN THAT WHERE THE UNIT IS REGISTERED AS A N STPI UNIT , THEN THE ASSESSEE ITA NO. 2 8 4/ P U N/20 1 5 M/S.ARESS SOFTWRE & EDU. TECH. P.LTD 4 IS NOT ENTITLED TO THE CLAIM OF DEDUCTION U/S 10B OF THE ACT. HOWEVER, SAID UNIT IS ELIGIBLE FO R CLAIMING THE DEDUCTION U/S 10A OF THE ACT. THE ASSESSING IS ELIGIBLE FO R CLAIMING THE DEDUCTION U/S 10A OF THE ACT. THE ASSESSING OFFICER HAD DENIED THE CLAIM AS NO SUCH CLAIM WAS MADE IN THE RETURN OF INCOME. HOWEVER, IN THE REMAND PROCEEDINGS IT HAS BEEN REPORTED THAT THE ASSESSEE FULFILLS ALL THE CONDITIONS LAID DOWN IN THE SECTION 10A OF THE ACT. ACCORDINGLY, WE UPHOLD THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT ASSESSEE IS ELIGIBLE TO CLAIM THE DEDUCTION U/S 10A OF THE ACT. THE GROUND OF APPEALS RAISED BY THE REVENUE ARE THUS DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVE NUE IS DISMISSED. ORDER PRONOUNCED ON THIS 17 TH DAY OF FEBRUARY , 201 7 . SD/ - SD/ - SD/ - SD/ - SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 17 TH FEBRUARY , 201 7 . S S G G R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / DY. CIT , CIRCLE - 1 , NASHIK ; 4. / ; 4. / CIT (A) - 1 , NASHK ; 5. 6. , , , - / DR A , ITAT, PUNE; / GUARD FILE . / BY ORDER , / / TRUE COPY / / / SR. PRIVATE SECRETARY , / ITAT, PUNE , / ITAT, PUNE