ITO, New Delhi V. M/s. Efextra Esolutions Pvt. Ltd., New Delhi

ITA 313/DEL/2012

• Counselvise Citation: 31320114 RSA 2012
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I AHMED
• Assessee Lawyers: K P GARG
• Keywords: Question of law; Revised return
• Section: 80IB; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND A.D. JAIN, JUDICIAL MEMBER ITA NO.313/DEL/2012 ASSESSMENT YEAR : 2007-08 ITO, WARD-11 (1), ROOM NO.321, CR BUILDING, IP ESTATE, NEW DELHI. VS. EFEXTRA ESOLUTIONS PVT. LTD., 44, GAUTAM NAGAR, NEW DELHI. PAN : AABCE3131A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.P. GARG, CA REVENUE BY : SHRI I. AHMED, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE DEPARTMENT FOR ASSESSMENT YEAR 2007-08 AGAINST THE ORDER DATED 21.10.2011 PASSED BY T HE CIT (A)-XIII, NEW DELHI. THE FOLLOWING GROUNDS HAVE BEEN TAKEN:- 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN HOLDING THAT JUDGMEN T OF HONBLE SUPREME COURT IN GOETZE (INDIA) LTD. VS. CIT (2006) 15 7 TAXMAN 1 (SC) WOULD NOT APPLY TO THE INSTANT CASE. 2. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN HOLDING THAT THE ALTERNAT E CLAIM OF THE ASSESSEE, FOR GRANT OF DEDUCTION U/S 10A INSTEAD OF U /S 10B OF THE ACT, IS TENABLE SPECIFICALLY IN THE LIGHT OF THE FACT THAT ALTERNATE CLAIM WAS NOT MADE THROUGH A REVISED RETURN O F INCOME. 3. LD. CIT (A) OUGHT NOT TO HAVE ALLOWED RELIEF TO THE ASSESSEE ON THE BASIS THAT FORM NO.56F, FOR CLAIMING DEDUCTION U /S 10A OF THE ACT, WAS FILED DURING ASSESSMENT PROCEEDINGS BECAU SE THE MAIN ISSUE WAS NOT WHETHER FORM NO.56 WAS OR WAS NOT F ILED ITA NO.313/DEL/2012 2 ALONG WITH THE RETURN OF INCOME BUT WHETHER IN THE ORIGIN AL RETURN ANY SUCH CLAIM OF DEDUCTION U/S 10A EXISTED OR NOT. 2. THE FACTS, AS PER THE CONCERNED ORDERS, ARE THAT TH E ASSESSEE COMPANY IS ENGAGED IN EXPORT OF COMPUTER SOFTWARE AN D PROVIDING SOFTWARE SOLUTIONS TO OVERSEAS CUSTOMERS. THE COMPANY IS A 100% EXPORTING UNIT AND IS REGISTERED WITH THE SOFTWARE TE CHNOLOGY PARK OF INDIA. FOR ASSESSMENT YEAR 2007-08, THE ASSESSEE FILED THE RETURN OF INCOME ON 21.09.07 DECLARING AN INCOME OF ` 2,20,500/-. ALONG WITH THE RETURN, THE ASSESSEE FILED THE AUDIT REPORT UNDER R ULE 16E IN FORM NO.56G CLAIMING DEDUCTION OF ` 19,84,913/- U/S 10B. SUBSEQUENTLY, IT LEARNT THAT AS IT WAS REGISTERED WITH THE SOFTWARE TEC HNOLOGY PARK OF INDIA AND WAS A 100% EOU, IT WAS ENTITLED TO THE DEDU CTION U/S 10A AND NOT U/S 10B. THEREFORE, ON 10.11.09, IT FILED AN AUDIT REPORT UNDER RULE 16D IN FORM NO.56F DATED 04.11.2009 CERTIFYING DEDUCTION OF ` 19,84,912/- U/S 10A. IT STATED THAT THE CLAIM U/S 10B WAS A MISTAKE IN LAW AND IN VIEW OF THE ASSESSEES ELIGIBILITY AND THE AP PLICABILITY OF SECTION 10A IN THE CASE OF THE ASSESSEE, THE DEDUCTION C LAIMED U/S 10A BE ALLOWED. 3. THE ASSESSING OFFICER HELD THAT THE ASSESSEE WAS NOT ENTI TLED TO DEDUCTION U/S 10B IN VIEW OF ITS INELIGIBILITY. ACCO RDINGLY, THE CLAIM WAS REJECTED. THE CLAIM FOR DEDUCTION U/S 10A WAS ALSO TU RNED DOWN AS THE TIME FOR FILING A REVISED RETURN HAD ELAPSED AND THE ASSESSEE HAD MERELY MADE A REVISED CLAIM ON THE BASIS OF A LETTER A ND ACCOMPANYING REPORT U/S 56F. IN VIEW OF THE APEX CO URTS DECISION IN GOETZE INDIA LTD., 284 ITR 323 (SC), THE ASSESSING OF FICER HELD THAT THE DEDUCTION COULD NOT BE MADE WITHOUT A VALID REV ISED RETURN. HE, ACCORDINGLY, REFUSED TO CONSIDER THE DEDUCTION CLAIME D U/S 10A VIDE LETTER DATED 10.11.09 AND SUMMARILY REJECTED THE CLA IM. ITA NO.313/DEL/2012 3 4. BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT (A) DIRECTED THE ASSESSING OFFICER TO CONSIDER THE REPORT IN FORM NO.56F AND THE RESULTANT CLAIM OF DEDUCTION OF ` 19,84,913/- U/S 10A OF THE IT ACT AND TO ALLOW THE SAME, IF FOUND TO BE IN ACCORDANCE WITH LAW. 5. AGGRIEVED, THE DEPARTMENT IS IN APPEAL. 6. CHALLENGING THE IMPUGNED ORDER, THE LD. DR HAS CO NTENDED THAT THE LD. CIT (A) HAS ERRED IN HOLDING THAT THE JUDGME NT OF THE HONBLE SUPREME COURT IN GOETZE (INDIA) LTD. VS. CIT (SUPRA ) WOULD NOT APPLY TO THE INSTANT CASE; THAT THE LD. CIT (A) HAS ERRED IN HOLDING THAT THE ALTERNATE CLAIM OF THE ASSESSEE, FOR GRANT OF DEDUCTION U/S 10A INSTEAD OF U/S 10B OF THE ACT, IS TENABLE, SPECIFICALLY IN THE LIGHT OF THE FACT THAT THE ALTERNATE CLAIM WAS NOT MADE THROUGH A REVISED RE TURN OF INCOME; THAT THE LD. CIT (A) OUGHT NOT TO HAVE ALLOWED RELI EF TO THE ASSESSEE ON THE BASIS THAT FORM NO.56F, FOR CLAIMING DEDUCTION U/ S 10A OF THE ACT, WAS FILED DURING THE ASSESSMENT PROCEEDINGS, BECAUSE THE M AIN ISSUE WAS NOT WHETHER FORM NO.56 WAS OR WAS NOT FILED ALONG WITH THE RETURN OF INCOME, BUT WHETHER IN THE ORIGINAL RETURN ANY S UCH CLAIM OF DEDUCTION U/S 10A EXISTED OR NOT; THAT THE ASSESSEE WAS NO T ELIGIBLE FOR THE BENEFIT OF DEDUCTION U/S 10B OF THE ACT; THAT TH E ASSESSEE ALSO DID NOT FILE ANY REVISED RETURN OF INCOME FOR THE PURPOSE OF REVISING THE CLAIM FROM THAT OF DEDUCTION U/S 10B OF THE ACT TO T HAT OF DEDUCTION U/S 10A OF THE ACT; THAT SINCE BOTH THE PROVISIONS OF INCO ME TAX ACT ARE DIFFERENT AND DISTINGUISHABLE, A DEDUCTION U/S 10A OF THE ACT AMOUNTED TO A NEW CLAIM WHICH COULD HAVE BEEN MADE BY THE ASSE SSEE ONLY THROUGH A REVISED RETURN OF INCOME; AND THAT THE LD. CIT (A) HAS GRANTED RELIEF TO THE ASSESSEE BY ERRONEOUSLY HOLDING T HAT THE JUDGMENT OF THE HONBLE SUPREME COURT IN GOETZE (I NDIA) LTD. VS. CIT, (2006) 157 TAXMAN 1 (SC) WOULD NOT APPLY. ITA NO.313/DEL/2012 4 7. IT WAS FURTHER CONTENDED THAT THE CASE LAWS RELIED ON BY THE LD. CIT (A) ARE NOT APPLICABLE, SINCE THEY ARE REGARDING FILING OF TAX AUDIT REPORT; AND THAT THE LD. CIT (A) HAS ALSO GONE WRONG IN SAYING THAT NO FRESH CLAIM WAS MADE BY THE ASSESSEE. 8. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS CONTENDED THAT AS PER THE RETURN FILED, THE ASSESSEE HA D CLAIMED DEDUCTION U/S 10B OF THE ACT; THAT SUBSEQUENTLY, IN TH E ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER POINTED OUT THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 10A OF THE ACT AND NOT U/ S 10B; THAT IT WAS THEREFORE, THAT THE ASSESSEE FILED THE REVISED REPORT IN FORM 56F WITH THE ASSESSING OFFICER; THAT THEREBY, NO CHANGE CAME ABO UT EITHER IN THE INCOME RETURNED OR IN THE QUANTUM OF DEDUCTION CLAIMED; THAT RATHER, BY FILING THE REVISED REPORT IN FORM 56F, TH E ASSESSEE, IN FACT, REMOVED THE DEFICIENCY, WHEN IT WAS POINTED OUT TO T HE ASSESSEE; THAT IT WAS THUS, THAT THE CLAIM OF DEDUCTION WRONGLY MADE BY THE ASSESSEE U/S 10B OF THE ACT GOT CHANGED TO THE CORRECT CLAIM OF DEDUCTION U/S 10A OF THE ACT; THAT IN THESE FACTS, GOETZE (INDIA) (SUPRA), IS NOT APPLICABLE AND WAS WRONGLY APPLIED BY THE ASSESSING OFFI CER; THAT IN EFFECT, NO FRESH CLAIM HAS BEEN MADE BY THE ASSESSEE; AND THAT PRINCIPALLY, THE PROVISIONS OF BOTH SECTIONS 10B AND 10 A OF THE ACT ARE SIMILAR. 9. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MAT ERIAL ON RECORD. THE ASSESSING OFFICER, IT IS SEEN, REJECTED T HE CLAIM OF THE ASSESSEE, HOLDING THAT AS PER GOETZE (INDIA) (SUPRA), SI NCE THE ASSESSEE HAD MERELY MADE A REVISED CLAIM AFTER THE TIME FOR FILING A REVISED RETURN HAD ELAPSED, THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 10A OF THE ACT. THE LD. CIT (A), ON THE OTHER H AND, FOUND IN FAVOUR OF THE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO CONSI DER THE ITA NO.313/DEL/2012 5 REPORT IN FORM 56F AND TO ALLOW THE CLAIM, IF FOUND IN ACCORDANCE WITH LAW, FOR DEDUCTION OF ` 19,84,913/- U/S 10A OF THE ACT. 10. THE ISSUE BEFORE US IS AS TO WHETHER THE AFORESAID AC TION OF THE LD. CIT (A) IS JUSTIFIED. NOW, IT IS SEEN THAT THE ASSE SSEE, ON BEING POINTED OUT BY THE ASSESSING OFFICER THAT DEDUCTION U/S 10B WAS NOT AVAILABLE TO IT, CHANGED ITS CLAIM TO ONE U/S 10A OF THE ACT, BY WAY OF FILING A REPORT IN FORM NO.56F BEFORE THE ASSESSING OFF ICER. GOETZE (INDIA) (SUPRA), TO OUR MIND, IS NOT ATTRACTED TO TH E FACTS OF THE PRESENT CASE, SINCE THEREIN, THE CLAIM MADE SUBSEQUENTLY WAS AN ALTOGETHER FRESH CLAIM, WHEREBY THE RETURNED INCOME GOT CHANGED . IT IS NOT SO HERE. UNDISPUTEDLY, IN THE PRESENT CASE, ON THE CHA NGE OF THE CLAIM, NEITHER THE RETURNED INCOME, NOR THE ASSESSED INCOME OF THE ASSESSEE HAS UNDERGONE ANY CHANGE WHATSOEVER. 11. IN CIT VS. RAMCO INTERNATIONAL, 332 ITR 306 (P &H), IT WAS HELD THAT SINCE THE ASSESSEE HAD NOT MADE ANY FRESH CLAIM AND HAD DULY FURNISHED THE DOCUMENTS AND HAD SUBMITTED FORM FOR CL AIM U/S 80IB OF THE ACT, THERE WAS NO REQUIREMENT OF FILING ANY REVI SED RETURN OF INCOME. 12. IN CIT VS. MAHAVIR SPINNING MILLS LTD. 303 ITR 353 (P&H), THE ISSUE WAS AS TO WHETHER THE TRIBUNAL HAD CORRECTLY GRAN TED EXEMPTION U/S 10B OF THE ACT, WHEN NO CLAIM HAD BEEN MADE BY T HE ASSESSEE, EITHER IN THE RETURN OF INCOME OR IN THE REVISED RET URN, THEREBY VIOLATING GOETZE (INDIA). IT WAS HELD THAT THE MAIN CONTROV ERSY WAS THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80I OF THE ACT DURING THE ASSESSMENT PROCEEDINGS AND HAD CLAIMED EXEMPTION U/S 10B OF THE ACT AFTER THE CONVERSION OF THE ASSESSEE UNIT AS A 100% EOU; THAT IN SUCH A SITUATION, THE MATTER HAD TO BE ANALYSED IN THE LIG HT OF BOTH SECTIONS ITA NO.313/DEL/2012 6 10B AND 80I AND THEIR REQUIREMENTS. THE DEPARTMENT S APPEAL WAS DISMISSED AS NOT GIVING RISE TO ANY SUBSTANTIAL QUESTION OF LAW. 13. IN CIT VS. JAI PARABOLIC SPRINGS LTD. 306 I TR 42 (DEL), IT WAS HELD THAT THE CIT (A) HAD THE JURISDICTION TO ENTER TAIN THE ADDITIONAL CLAIM NOT FILED BEFORE THE ASSESSING OFFICER. 14. IN CIT VS. LUCKNOW PUBLIC EDUCATIONAL SOCIETY , 318 ITR 223 (ALL), THE ORIGINAL RETURN HAD BEEN FILED LATE, DUE TO WHICH, THE REVISED RETURN WAS TREATED BY THE ASSESSING OFFICER AS A NONEST, I T WAS HELD THAT A CLAIM TO WHICH THE ASSESSEE IS LEGALLY ENTITLED C ANNOT BE DENIED BY THE ASSESSING OFFICER ON TECHNICAL GROUNDS, EVEN IF SU CH A CLAIM HAS NOT BEEN MADE BY THE ASSESSEE. 15. IN RACHHPAL SINGH VS. INCOME-TAX OFFICER 276 ITR (AT) 163 (ASR.), THE ASSESSEE WITHDREW ITS CLAIM BEFORE THE ASSESSING OFFICER CONSIDERING THAT IT WAS NOT ENTITLED TO SUCH CLAIM. S UBSEQUENTLY, THE ASSESSEE MADE THAT VERY CLAIM BEFORE THE APPELLATE AUTH ORITY, WHICH WAS ACCEPTED. 16. IN DEEPAK NITRITE LTD. VS. CIT, 307 ITR 289 (GUJ), IN THE ORIGINAL RETURN DEDUCTION WAS CLAIMED U/S 32A OF THE ACT, WHEREAS IN THE BELATED REVISED RETURN, SUCH CLAIM WAS RECTIFIED A ND MADE U/S 32AB, WHICH CLAIM WAS ACCEPTED. 17. THE AFORE-DISCUSSED CASE LAWS RELIED ON BY THE ASSESSE E ALL GO TO SUPPORT THE ASSESSEES CASE. CONCURRING THEREWITH, WE HOLD THAT THE LD. CIT (A) HAS CORRECTLY HELD THE CLAIM OF THE ASSESSEE TO BE ALLOWABLE, IF FOUND TO BE IN ACCORDANCE WITH LAW. MOREOVER, TH E ASSESSEES ELIGIBILITY FOR THE CLAIM U/S 10A RATHER THAN U/S 10B OF THE ACT NOWHERE STANDS DISPUTED. IT IS ONLY THAT THE DEPARTMENT CONTE NDS THAT THE CLAIM ITA NO.313/DEL/2012 7 U/S 10A DID NOT EXIST IN THE ORIGINAL RETURN AND, THE REFORE, IT CANNOT BE ALLOWED. WE, AS PER THE FOREGOING DISCUSSION, DO NOT SUBSCRIBE TO THIS VIEW. 18. IN VIEW OF THE ABOVE, FINDING NO MERIT THEREI N, THE GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT IS REJECTED. 19. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DI SMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 24.08.20 12. SD/- SD/- [G.D. AGRAWAL] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 24.08.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES