ITO, Ward - 8(2), Kolkata , Kolkata V. M/s. Wizard Enterprise Pvt. Ltd., , Kolkata

ITA 292/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6766 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH JCITSRDR
• Keywords: Benefit of exemption
• Section: 143(3); 10B; 139(1)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.292/KOL/2018 ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER, WARD- 8(2), 5 TH FLOOR, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 / V/S . M/S WIZARD ENTERPRISE PVT. LTD., 5F, EVEREST, 46/C, CHOWRINGHEE ROAD, KOLKATA-700071 [ PAN NO.AAACW 2606 B ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI C.J. SINGH, JCIT, SR-DR /BY RESPONDENT NONE /DATE OF HEARING 23-01-2019 /DATE OF PRONOUNCEMENT 28-02-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATAS O RDER DATED 24.11.2017 PASSED IN CASE NO.1/CIT(A)-5/WD-8(2)/14-15/16-17, INVOLVIN G PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE NONE APPEARS AT THE ASSESSEES BE HEST. THE REGISTRY HAS ALREADY SENT THE ASSESSEE AN RPAD NOTICE DATED 11.1 2.2018 FOR TODAYS HEARING. WE THEREFORE PROCEED EX PARTE AGAINST THE ASSESSEE. THE CASE IS NOW TAKEN UP ADJUDICATION ON MERITS. ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 2 2. THE REVENUES FIRST THREE SUBSTANTIVE GROUNDS SE EKS TO REVIVE THE ASSESSING OFFICERS ACTION DISALLOWING ASSESSEES SECTION 10A DEDUCTION CLAIM OF 1,19,78,405/- IN ASSESSMENT ORDER AS REVERSED IN CITS ORDER UNDE R CHALLENGE. 3. WE FIND THAT INSTANT ISSUE OF SEC.10A DEDUCTION IS NO MORE RES INTEGRA AS THIS TRIBUNALS CO-ORDINATE BENCHS DECISION IN ASSESSEE S CASE ITSELF FOR ASSESSMENT YEARS 2007-08 AND 2008-09 HAS ACCEPTED ITS VERY CLAIM VID E ITS ORDER DATED 04.03.2016 VIDE FOLLOWING DETAILED DISCUSSION:- 11. WE FIND FROM PAGE 47-48 OF THE PAPER BOOK REGA RDING COPY OF THE GREEN CARD ISSUED BY THE DESIGNATED OFFICER, GOVT. OF INDIA, DEPTT. O F INFORMATION TECHNOLOGY AND CHAIRMAN, INTER-MINISTERIAL STANDING COMMITTEE ON S OFTWARE TECHNOLOGY PARK SCHEME VIDE GREEN CARD NUMBER STPK/233/06 DATED 16 TH FEB., 2006 AS AN UNIT APPROVED UNDER THE STP SCHEME OF THE GOVT. OF INDIA AS 100% EXPOR T ORIENTED UNIT TO CARRY OUT IT ENABLED SERVICES (CALL CENTRE). IT WOULD BE PERTINE NT TO REPRODUCE THE SAME HEREIN BELOW:- SL NO. 6047 GREEN CARD NO.STPK/233/06 DATED THE FEBRUARY 16 TH 2006 SOFTWARE TECHNOLOGY PARK(STP) UNIT HAS BEEN APPROVED UNDER THE STP SCHEME OF THE GOVT. OF INDIA AS A 100% EXPORT ORIENTED UNIT FOR COMPUTER SOFTWARE. THIS UNIT IS ENTITLED TO TOP PRIORITY TREATMENT FROM ALL CONCERNED CENTR AL AND STATE GOVERNMENT DEPARTMENTS AND OTHER ORGANISATION S IN ALL MATTERS RELATING TO THE PROJECT SD/- DESIGNATED OFFICER FOR SECRETARY TO THE GOVT OF INDIA DEPARTMENT OF INFORMATION TECHNOLOGY AND CHAIRMAN, INTERMINISTERIAL STANDING COMMITTEEON SOFTWARE TECHNOLOGY PARK SCHEME. 11.1 THE ABOVE GREEN CARD APPROVAL HAS TO BE UNDERS TOOD IN ITS TRUE AND FULLEST SENSE IN THE LARGER INTEREST AND PURPOSE BEHIND SETTING UP A UNIT AND THE ALLIED BENEFITS IT IS LIKELY TO BRING. THESE EXPORT BENEFITS WOULD AUTOMATICALLY B E ELIGIBLE FOR DEDUCTION U/S. 10B OF THE ACT. OTHERWISE, THE PURPOSE OF GRANTING THE SAME FO R SETTING UP A UNIT AND REGISTERING WITH STP AS 100% EOU STATUS WOULD GET DEFEATED. 12. WE ALSO FIND LOT OF FORCE IN THE ALTERNATIVE AR GUMENT MADE BY THE LD.AR THAT THE ASSESSEE COMPANY BEING REGISTERED WITH STP IS ENTI TLED FOR CLAIMING DEDUCTION U/S. 10A OF THE ACT. IN THIS CONNECTION, THE CBDTS INSTRUCTION NO. 1/2006 DATED 31-03-2006 ASSUMES GREAT SIGNIFICANCE. THE SAME IS REPRODUCED HEREIN B ELOW FOR BETTER APPRAISAL :- SECTIONS 10A AND 10B FREE TRADE ZONES / 100% EXPORT ORIENTED UNDERTAKING S, EXEMPTION FOR NEW INDUSTRIAL UNDERTAKINGS IN [SECS.10A AND 10B] ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 3 DEDUCTION TO STPS - INSTANCES HAVE BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT A LARGE NUMBER OF UNITS REGISTERED/ APPROVED B Y THE DIRECTORS OF THE STPI ARE CLAIMING DEDUCTION UNDER SECTION 10A WHERE AS THE STP SCHEME REQUIRES APPROVAL BY THE INTER-MINISTERIAL STANDING COMMITTEE OF THE DEPARTMENT OF ELECTRONICS. ACCORDINGLY, THE CASES O F SUCH CLAIMANTS HAVE BEEN REOPENED BY THE AUTHORITIES. THE MATTER HAS BEEN EXAMINED IN CONSULTATION WITH T HE OFFICERS OF THE DEPARTMENT OF INFORMATION TECHNOLOGY (EARLIER, DEPA RTMENT OF ELECTRONICS). IN VIEW OF THE AMBIGUITY IN THE LEGAL STATUS OF THE APPROVAL BY DIRECTOR OF STPS, THE INTER-MINISTERIAL STANDING COMMITTEE WILL MEET TO CONSIDER THE APPROVALS BY DIRECTOR OF STPS ISSUED IN THE PAST. T HEREFORE, WITH A VIEW TO AVOID INFRUCTUOUS DEMAND RAISED IN ASSESSMENT AND R EASSESSMENT OF ASSESSEES CLAIMING DEDUCTION UNDER SECTION 10A, IT HAS BEEN DECIDED THAT THE CLAIM OF DEDUCTION UNDER SECTION 10A, SHALL NOT BE DENIED TO STP UNITS ONLY ON THE GROUND THAT THE APPROVAL/REGISTRATION TO SUC H UNITS HAS BEEN GRANTED BY THE DIRECTORS OF SOFTWARE TECHNOLOGY PARKS. HOWE VER, IT HAS TO BE ENSURED THAT ALL OTHER CONDITIONS SPECIFIED IN SECT ION L0A ARE FULLY SATISFIED BEFORE ALLOWING ANY SUCH CLAIM. IN CASES WHERE ASSESSMENTS/REASSESSMENTS HAVE ALREA DY BEEN COMPLETED, AND THE CLAIM UNDER SECTION 10A HAS BEEN DISALLOWED ONL Y ON THE GROUND THAT THE APPROVAL TO THE STP HAS NOT BEEN GRANTED BY THE INT ER-MINISTERIAL STANDING COMMITTEE IN ACCORDANCE WITH THE SCHEME, THE DEMAND SO ARISING SHOULD BE KEPT IN ABEYANCE UNTIL FURTHER ORDERS. 13. IT IS NOT IN DISPUTE THAT A CALL CENTRE OPERATI ON HAS BEEN DULY NOTIFIED AS IT ENABLED SERVICES AND THEREBY ELIGIBLE FOR DEDUCTION FOR 100 % EXPORT ORIENTED UNIT CONTEMPLATED U/S. 10A/10B OF THE ACT. 14. WE ALSO FIND FROM PAGE 51 OF THE PAPER BOOK CON TAINING A LETTER DT. 02-09-2011 ADDRESSED TO THE ASSESSEE BY SOFTWARE TECHNOLOGY PA RKS OF INDIA (STPI), MINISTRY OF COMMUNICATION & INFORMATION TECHNOLOGY, DEPT OF IT, GOVT. OF INDIA, KOLKATA REGARDING REGISTRATION FOR SETTING UP STP UNIT ( 100% EXPOR T ORIENTED UNIT UNDER STP SCHEME). THE SAME IS REPRODUCED HERE IN BELOW FOR THE SAKE O F CONVENIENCE:- SOFTWARE TECHNOLOGY PARKS OF INDIA MINISTRY OF COMMUNICATION & INFORMATION TECHNOLOGY, DEPT OF IT, GOVT. OF INDIA PLOT NO.5/1 DP SECTOR-V, SALT LAKE, KOLKATA-700 091 PH: 91-33-2367-3598/99-2367 3798/99, FAX [phone] EMAIL: [e-mail]/URLHTTP://WWW.KOL.STP.IN TO THE DIRECTOR WIZARD ENTERPRISES PVT. LTD. 5, LAKE AVENUE, KOLKATA - 700026 SUB: YOUR STP UNIT APPROVAL RATIFICATION REG. REF: YOUR LETTER DT: 29.08.2011 ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 4 SIR, WITH REFERENCE TO ABOVE AND DISCUSSIONS WITH YOUR O FFICIALS, THE FACTS W.R.T, YOUR STP UNIT REGISTRATION IS PRODUCED BELOW: 1. YOUR UNIT 'WIZARD ENTERPRISES PVT. LTD.' IS REGI STERED AS A 100% EXPORT ORIENTED UNIT UNDER STP SCHEME VIDE LOP NO. STPK:DIR:441:200 5-06:1548 DT: 10.01.2006 AS PER NOTIFICATION NO. 33/(RE)(92-97 DT : 22.03.1994 READ WITH SUBSEQUENT AMENDMENTS AND EXIM POLICY ( FOREIGN TRA DE POLICY. 2. AS PER PARA 6.26 OF FOREIGN TRADE POLICY 2004-20 09: 'IN THE CASE OF UNITS UNDER EHTP /STP SCHEMES, NECE SSARY APPROVAL/ PERMISSION UNDER RELEVANT PARAGRAPHS OF THIS CHAPTE R SHALL BE GRANTED BY THE OFFICER DESIGNATED BY THE MINISTRY OF COMMUNICA TION AND INFORMATION TECHNOLOGY, DEPARTMENT OF INFORMATION TECHNOLOGY IN STEAD OF THE DEVELOPMENT COMMISSIONER AND BY THE INTER-MINISTERI AL STANDING COMMITTEE (IMSC) INSTEAD OF BOA: 3. APPROVAL OF YOUR UNIT IS GRANTED BY DIRECTOR, ST PI AS PER POWERS DELEGATED ON HIM BY THE IMSC. THANKING YOU. YOURS FAITHFULLY, SD/- [MANJIT NAYAK] OFFICER- IN -CHARGE COPY TO: 1. THE DIRECTOR, STPI-KOLKATA / GUWAHATI 15. IT WAS ALSO BROUGHT TO OUR ATTENTION BY THE LD. AR THAT THE INSTRUCTION (F.NO.178/19/2008-IT-I) DATED 9 TH MARCH 2009 ISSUED BY CBDT CLARIFIES THAT THE POWE R TO GRANT APPROVAL U/S. 14 OF INDUSTRIAL (DEVELOPME NT & REGULATIONS) ACT, 1951 HAS BEEN DELEGATED TO DEVELOPMENT COMMISSIONERS AND APPROVAL GRANTED BY THE DEVELOPMENT COMMISSIONER SHALL BE CONSIDERED VALID FOR THE PURP OSE OF EXEMPTION U/S. 10B. IT WOULD BE PERTINENT TO NOTE THAT IN THE INSTANT CASE APPRO VAL UNDER THE STP SCHEME IS GRANTED BY THE DESIGNATED OFFICER, DEPARTMENT OF INFORMATION T ECHNOLOGY AND BY THE INTER- MINISTERIAL STANDING COMMITTEE (IMSC). HENCE, THE A PPROVAL GRANTED UNDER STP SCHEME COMPLIES WITH ALL THE REQUIREMENTS CONTEMPLATED U/S . 10B OF THE ACT WHEN READ WITH INDUSTRIAL (DEVELOPMENT & REGULATIONS) ACT, 1951, F OREIGN TRADE POLICY 2004-2009, HAND BOOK OF PROCEDURES (VOLUME-I) & APPENDIX TO TH E HANDBOOK. WE ALSO FIND THAT THE LD.AR FURTHER ARGUED BEFORE US THAT TO THE BE ST OF HIS KNOWLEDGE THE ORDER PASSED UNDER SIMILAR CIRCUMSTANCES BY THE LD.CIT(A)-II, KO LKATA IN THE CASE OF ARB SOFTWARE (INDIA) LTD FOR THE ASSESSMENT YEAR 2003-04 HAS NO T BEEN APPEALED BY THE REVENUE BEFORE THE TRIBUNAL. WE FIND FORCE IN THE CASE LAW AS REL IED UPON BY THE ASSESSEE ON THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT CHANDIGARH (SUPRA) IN THE CASE OF BEBO TECHNOL OGIES P.LTD VS. JCIT (SUPRA) , WHEREIN THE LEARNED AO DENIED DEDUCTION U/S. 10B TO THE ASSESSEE ON THE GROUND THAT NO APPROVAL WAS OBTAINE D FROM THE BOARD APPOINTED BY THE CENTRAL GOVT. IN EXERCISE OF POWER CONFERRED BY S ECTION 14 OF INDUSTRIAL (DEVELOPMENT & REGULATION) ACT 1951 & RULES MADE UNDER THAT ACT. IT WAS ULTIMATELY HELD IN THAT CASE AS UNDER:- ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 5 39. THE LD. DR FOR THE REVENUE BEFORE US HAS FAIL ED TO POINT OUT ANY CONTRARY EVIDENCE TO THE SAME. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE GAZETTED NOTIFICATION IN THIS REGA RD PLACED AT PAGE 16 OF THE PAPER BOOK-II UNDER WHICH THE POWERS HAD BEEN GIVEN TO CONSIDER THE APPLICATION FOR SETTING UP OF UNITS UNDER STP SCHEM E OPERATED VIDE CUSTOM NOTIFICATION NO. 138 AND 140 DATED 22.10.1991. THE SAID COMMITTEE WAS ALSO EMPOWERED TO CONSIDER THE PROPOSALS FOR INDUSTRIAL LICENSE, FOREIGN TECHNICAL COLLABORATION, AGREEMENT AND IMPORT OF .CAPITAL GOO DS. THE ASSESSEE HAS FURNISHED THE REGISTRATION UNDER THE SOFTWARE TECHN OLOGY PARK SCHEME OF INDIA VIDE APPROVAL NO. STPIM/PCMG/PSE/02/199-7492 DATED 17.2.2003 REGISTERING THE ASSESSEE AS AN 100% EOU. THE COPY O F THE SAID CERTIFICATE IS ENCLOSED AT PAGES 105 TO 109 OF THE PAPER BOOK ALON GWITH THE COPY OF THE AGREEMENT ENTERED INTO BY THE ASSESSEE COMPANY WITH STPI ON 17.2.2003, A COPY OF WHICH IS ENCLOSED AT PAGES 111 TO 113 OF TH E PAPER BOOK. IN VIEW OF THE ABOVE SAID EVIDENCE, UPHOLDING THE ORDER OF CIT (A), WE HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 10B OF THE AC T AS A 100% EOU ON BEING REGISTERED WITH STPI. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF OUR OBSERVATION IN PARAS HEREINABOVE , WE UPHOLD THE ORDER OF CIT(A) IN HOLDING THAT THE ASSESSEE IS ELIGIBLE TO THE EXEMPTION CLAIMED U/S. 10B OF THE ACT. ACCORDINGLY, GROUND NO.2 RAISED BY THE REVENUE IS THUS DISMISSED. 16. WE ALSO FIND GLARING SIMILARITIES BETWEEN SECTI ON 10A AND 10B OF THE ACT AS BELOW:- WHETHER APPLIES WHETHER APPLIES SECTION 10A/ TO SECTION 10B RELEVANT SUB- RELEVANT SUB- SECTION, PROVISO OR SECTION, PROVISO EXPLANATION OR EXPLANATION SL.NO . PROPOSITION 1. BENEFIT OF DEDUCTION FOR EXPORT OF ARTICLES/ COMPUTER SOFTWARE YES YES SUB-SECTION(1) SUB-SECTION(1) 2. BENEFIT IS AVAILABLE FOR A PERIOD OF 10 CONSECUTIVE A.YS. BEGINNING WITH THE YEAR IN WHICH UNDERTAKING BEGINS TO PRODUCE/MANUFACTURE SUCH ARTICLE/ YES YES COMPUTER SOFTWARE SUB-SECTION(1) SUB-SECTION(1) 3. DEFINITION OF COMPUTER SOFTWARE IS YES EX EMPTED YES EXEMPTED AS ANY PRODUCT OR SERVICE OF THE SIMILAR AS P ER CBDT AS PER CBDT NATURE AS MAY BE NOTIFIED BY CBDT. NOTIFICA TION NOTIFICATION CBDT VIDE NOTIFICATION NO.SO 890(E) EXPLANATION ( 2) EXPLANATION (2) DATED 26.09.2000 HAS NOTIFIED THE LIST BELOW SE CTION10A BELOW SECTION10A OF INFORMATION TECHNOLOGY ENABLED PRODUCTS OR SERVICES ELIGIBLE FOR BENEFIT OF EXEMPTION CALL CENTRE ACTIVITY FIGURING AT ITEM (II) OF THE SAID LIST 4. BENEFITS UNDER THE PROVISIONS ARE YES YE S ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 6 NOT AVAILABLE W.E.F 01.04.2012 4 TH PROVISO TO 3 RD PROVISO TO SUB- SUB-SECTION (1) SECTION (1) 5. BENEFITS AVAILABLE TO THE UNDERTAKINGS YES YES LOCATED AT FREE TRADE ZONE, ELECTRONIC CLAUSE (I) OF SUB-SECTION (1) READ HARDWARE TECHNOLOGY PARK/SOFTWARE SUB-SECTION(2) WITH EXPLANATION 2(IV) TECHNOLOGY PARK OR SPECIAL ECONOMIC BELOW SECTION 10B ZONE OR 100% EXPORT ORIENTED UNDER- TAKINGS. NOTE: STPS ARE NOTHING BUT 100% EOU AS HAS BEEN CLARIFIED BY STPI VIDE LETTER DATED 05.09.2011 6. UNDERTAKING CLAIMING DEDUCTION SHOULD YES YES NOT BE FORMED BY THE SPLITTING UP OR C LAUSE(II)& CLAUSE(II)& (III) OF RECONSTRUCTION OF A BUSINESS ALREADY IN (III) OF SUB- SECTION (2) EXISTENCE AND/OR IS NOT FORMED BY THE SECTION (2) TRANSFER TO A NEW BUSINESS OF MAC HINERY OR PLANT PREVIOUSLY USED FOR ANY PUR POSE. 7. THE PROVISIONS OF SUB-SECTION(8) AND SUB- YES YES SECTION(10) OF SECTION 80-IA APPLY IN SUB-SECTION( 7) SUB-SECTION(7) RELATION TO THE UNDERTAKINGS. 8. RETURN OF INCOME SHOULD BE FURNISHED WITHIN YES YES THE DUE DATE SPECIFIED IN SECTION 139(1) AND SU B-SECTION(8) SUB-SECTION(8) THE RETURN SHOULD BE ACCOMPANIED BY A R.W F ORM NO.56F R.W FORM NO.56G REPORT OF THE CHARTERED ACCOUNTANT 17. WE FIND THAT THE ASSESSEE IS ALSO ENTITLED FOR BENEFIT OF DEDUCTION U/S. 10A OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THOUGH THE ASSESSEE HAD NOT CLAIMED THE SAME UNDER THAT SECTION IN THE RETURN OF INCOME. IN THIS REGARD, WE WOULD LIKE TO PLACE RELIANCE ON THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT MUMBAI IN THE CASE OF ITO VS. ACCENTIA TECHNOLOGIES LIMITED IN ITA NO. 1871/MUM/2 011 DATED 08-05-2014 , WHEREIN IT WAS HELD THAT : 6. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) CALLED FOR A REMAND REPORT. UPON OBTAINING THE REMA ND REPORT HE NOTICED THE FOLLOWING UNDISPUTED FACTS I.E., (A) THERE IS NO DI SPUTE REGARDING THE AMOUNT WHICH IS CLAIMED AS EXEMPT UNDER SECTION 10A OF THE ACT, (B) THERE IS NO DISPUTE THAT THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION UNDER SECTI ON 10A OF THE ACT AND ALL THE CRITERIA REGARDING THE SAID CLAIM HAS BEEN MET BY T HE ASSESSEE, AND (C) THERE IS ALSO NO DISPUTE REGARDING THE FACT THAT IN THE RETU RN OF INCOME THE ASSESSEE CLAIMED DEDUCTION OF THE AMOUNT ADMISSIBLE AS DEDUCTION UND ER SECTION 10A BY MENTIONING IT AS SECTION 10B OF THE ACT. THUS THE ONLY DISPUTE THAT EXISTS IS WHETHER THE CLAIM OF THE ASSESSEE REGARDING DEDUCTION UNDER SECTION 10A IS ALLOWABLE IF THE CLAIM WAS MADE UNDER SECTION 10B IN THE RETURN OF INCOME. THE LEARNED CIT(A) OBSERVED THAT SECTION 80A(5) IS APPLICABLE ONLY WHEN THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INC OME FOR ANY DEDUCTION WHEREAS IN THE INSTANT CASE THE ASSESSEE DID MAKE THE CLAIM TH OUGH, BECAUSE OF A TECHNICAL ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 7 ERROR, THE CLAIM WAS MADE UNDER SECTION 10B INSTEAD OF 10A. IN HIS OPINION, QUOTING OF WRONG SECTION SHOULD NOT DEPRIVE THE ASS ESSEE FROM CLAIMING DEDUCTION SO LONG AS THE OTHER CONDITIONS FOR MAKING SUCH CLA IM ARE SATISFIED. HE RELIED UPON THE CIRCULAR ISSUED BY THE CBDT DATED 11.04.1955 WH EREIN IT WAS OBSERVED THAT IT IS THE DUTY OF THE AO TO GUIDE THE ASSESSEE WITH RE GARD TO ELIGIBILITY TO CLAIM DEDUCTION; IN THE INSTANT CASE WHEN THE ASSESSEE CL AIMED DEDUCTION UNDER SECTION 10 B THE AO OUGHT TO HAVE GUIDED THE ASSESSEE WITH REGARD TO ELIGIBILITY TO CLAIM DEDUCTION UNDER SECTION 10A OF THE ACT. 18. WE ALSO FIND THAT THE CONTENTS OF AUDIT REPORT IN FORM NO. 56F AND 56G TOGETHER WITH THE COMPUTATION MECHANISM REMAINS THE SAME FOR CLAI MING THE DEDUCTION U/S. 10A/10B OF THE ACT. IT WAS ARGUED ALTERNATIVELY BY THE LD.AR T HAT THE DECISION OF THE LD.AO IS TO EDUCATE THE ASSESSEE OF ITS RIGHTS AND ENTITLEMENTS AS PER LAW AND CANNOT TAKE ADVANTAGE OF IGNORANCE OF ASSESSEE. IN THIS REGARD, HE CITED T HE RELEVANT EXTRACT OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SANCHI S OFTWARE & SOLUTIONS PVT. LTD VS. CIT REPORTED IN (2012) 349 ITR 404 (BOM), WHEREIN IT WAS HELD AS UNDER:- INCOME-TAX DEPARTMENT CANNOT TAKE ADVANTAGE OF THE ASSESSEES MISTAKES IN NOT CLAIMING THE EXEMPTION IN THE INCOM E-TAX RETURN AND NOT DENY HIM EXEMPTION. THE ENTIRE OBJECT OF ADMINISTRA TION OF TAX IS TO SECURE THE REVENUE FOR THE DEVELOPMENT OF THE COUNT RY AND NOT TO CHARGE THE ASSESSEE MORE TAX THAN THAT WHICH IS DUE AND PA YABLE BY THE ASSESSEE. 19. WE FIND THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. INDIA CAPACITORS LTD REPORTED IN 180 ITR 6 41 ALSO SUPPORTS THIS PROPOSITION. WE FURTHER FIND THAT THE ALTERNATIVE ARGUMENT OF THE LD.AR HAS GOT LOT OF FORCE AS IT MAY BE APPRECIATED THAT THERE WAS NO MALA FIDE INTENTION ON THE PART OF THE ASSESSEE IN NOT CLAIMING THE DEDUCTION UNDER THE CORRECT SECTION. IN FACT, IT COULD BE APPRECIATED THAT THE ASSESSEE HAD ONLY RUN THE RISKS OF NOT HAVING BEEN ABLE TO AVAIL THE BENEFIT OF JUSTICE AND NOT GAINED ANYTHING BY NOT CLAIMING DEDUCTION UND ER THE CORRECT SECTION. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. MAHALAXMI SUGA R MILLS CO. LTD REPORTED IN (1986) 160 ITR 920(SC) HAS OBSERVED AS UNDER:- 'THERE IS A DUTY CAST ON THE INCOME-TAX OFFICER TO APPLY THE RELEVANT PROVISIONS OF THE INDIAN INCOME-TAX ACT FOR THE PUR POSE OF DETERMINING THE TRUE FIGURE OF THE ASSESSEE'S TAXABLE INCOME AND TH E CONSEQUENTIAL TAX LIABILITY_ THAT THE ASSESSEE FAILS TO CLAIM THE BEN EFIT OF A SET-OFF CANNOT RELIEVE THE INCOME-TAX OFFICER OF HIS DUTY TO APPLY SECTION 24 IN AN APPROPRIATE CASE.' HENCE, WE FIND THAT THE ABOVE PRINCIPLE HOLDS GOOD AND IN THE EVENT IT HAD BEEN APPLIED, THE ASSESSEE WOULD NOT HAVE BEEN DEPRIVED OF JUSTIC E AND ADMITTING THE CLAIM UNDER CORRECT SECTION. 20. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES AND J UDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM THE BENEFIT OF DEDUCTION UNDER THE PROVISIONS OF SECTION 10A AS WELL AS SECTION 10 B OF THE ACT. HENCE WE FIND NO INFIRMITY IN THE IMPUGNED ORDERS OF THE LD.CIT(A) I N DELETING THE DISALLOWANCE AS MADE BY THE LD.AO ON THIS ISSUE. WE UPHOLD THE IMPUGNED ORD ERS OF THE LD.CIT(A). HENCE, THE GROUNDS RAISED BY THE DEPARTMENT IN BOTH THE APPEAL S ARE DISMISSED. ITA NO.292/KOL/2018 ASSESSMENT YEAR 2 011-12 ITO WD-8(2), KOL. VS M/S WIZARD ENTERPRISE PV T. LTD.. P AGE 8 21. IN VIEW OF AFORESAID FACTS AND CIRCUMSTANCES AN D JUDICIAL PRECEDENTS AS RELIED UPON BY THE LD.AR BEFORE US, THE GROUNDS OF CROSS OBJECTI ONS AS FILED BY THE ASSESSEE BEFORE US ARE ALLOWED. 4. THE REVENUE IS FAIR ENOUGH IN NOT PIN-POINTING A NY DISTINCTION OF FACTS OR LAW DURING THE COURSE OF HEARING. WE THEREFORE ADOPT JU DICIAL CONSISTENCY IN THE GIVEN FACTS AND CIRCUMSTANCES TO UPHOLD THE CIT(A)S DIRE CTION TREATING THE ASSESSEE TO BE ELIGIBLE FOR SEC. 10A DEDUCTION IN ISSUE. THE REVEN UES FORMER SUBSTANTIVE GROUND IS DECLINED ACCORDINGLY. 5. THE REVENUES SECOND SUBSTANTIVE GRIEVANCE IS TH AT CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING LOSS OF SHARE TRADING AMOU NTING TO 12,83,425/- AND FORWARD CONTRACTS AMOUNTING TO 4,88,640/- IN LOWER APPELLATE PROCEEDINGS. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT T HE ASSESSING OFFICERS ASSESSMENT ORDER HAD NOWHERE DISALLOWED ASSESSEES IMPUGNED CL AIM APART FROM COMPUTATION PORTION. WE CONCLUDE IN THESE CLINCHING FACTUAL BAC KDROPS REVENUE CANNOT BE HELD TO BE AGITATED AGAINST THE CIT(A)S ACTION DELETING TH E IMPUGNED DISALLOWANCE FOR THE SAID PRECISE REASON ACCORDINGLY. 6. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28/02/2019 SD/- S D/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 28/02/2019 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD, WARD-8(2), 5 TH FLOOR, AAYAKAR BHAWANA, P-7 CHOWRINGHEE SQUARE, KOL AKTA-69 2. /RESPONDENT-M/S WIZARD ENTERPRISE PVT. LTD., 5F, EVE REST, 46/C, CHOWRINGHEE ROAD, KOLKATAA-71 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . ((, , , /DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORDE R/ , /TRUE COPY/ / ,,