Dr. Akshay Bharadwaj, New Delhi V. ITO, New Delhi

ITA 3260/DEL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6815 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 28-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 22-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SM C - 1 I NEW DELHI) BEFORE SHRI I.C. SUDHIR : JUDICIAL MEMBER ITA NO. 3 260 /DEL/201 5 ASSESSMENT YEAR: 20 1 0 - 11 AKSHAY BHARADWAJ, VS. ITO, E - 78, WARD - 37(2), GREATER K AILASH - I, NEW DELHI. NEW DELHI. (PAN: A AHPB2681B ) (APPELLANT) (RESPONDENT) ASSESSEE BY: SH. KAPIL GOEL, ADV. DEPARTM ENT BY: SHRI N.K. BANSAL , SR. DR DATE OF HEARING : 2 8 . 0 7 .201 6 DATE OF PRONOUNCEMENT: 28 : 0 7 .201 6 ORDER THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON THE FOLLOWING GROUNDS: 1. THAT THE LEARNED CIT(APPEALS) [CIT(A)] ERRED ON FACTS AND IN LA W IN SUSTAINING THE DISALLOWANCE OF THE EXEMPTION CLAIM MADE BY THE APPELLANT U/S. 10B/10A OF THE INCOME - TAX ACT ( FOR EXPORT OF COMPUTER SOFTWARE MADE BY THE APPELLANT). 2. THAT IN ADDITION TO ABOVE, LEARNED CIT(APPEALS) [CIT(A)] ERRED ON FACTS AND IN LAW I N SUSTAINING THE DISALLOWANCE OF THE EXEMPTION CLAIM MADE BY THE APPELLANT IN GROSS NON APPRECIATION OF FOLLOWING ASPECTS AND KEY FACTS: A. THAT CLAIM OF ASSESSEE IS FULLY SUPPORTED AND COVERED IN HIS FAVOR BY JURISDICTIONAL HIGH COURT AND ITAT DECISIONS REND ERED IN IDENTICAL ISSUE. 2 B. THAT CLAIM OF ASSESSEE IS ALLOWED AND ACCEPTED BY LD. A.O. HIMSELF IN OTHER YEARS DURING REGULAR ASSESSMENT, WHICH NEGATES LD CIT - A PRESENT DECISION; C. THAT ASSESSEES CLAIM IS REJECTED ON IRRELEVANT AND EXTRANEOUS GROUNDS IGNORING L D CIT - A ORDER ACCEPTING ASSESSEES CLAIM IN ASSESSEES OWN CASE IN PREVIOUS YEARS. 3. THAT THE LEARNED CIT(APPEALS) [CIT(A)] ERRED ON FACTS AND IN HOLDING THAT THE ASSESSMENT ORDER DATED 18.03.2013, WAS SENT BY SPEED POST ON 20.03.2013 AND WAS SERVED WELL BEFORE THE TIME BARRING DATE, WHEN THE ORDER DID NOT REACH THE APPELLANT BEFORE THE TIME BARRING DATE, AS THE ADDRESS GIVEN IN THE SAID ANNEXURE - 2 IS INCOMPLETE. 2. HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHO RITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A DOCTOR BY PROFESSION, IS RUNNING AN 100% EOU UNDER THE NAME AND STYLE ELDOCS, AND IS ENGAGED IN THE BUSINESS OF EXPORT OF CO MPUTER SOFTWARE (MEDICAL TRANSCRIPTION BUSINESS). ELDOCS IS REGISTERED WITH THE GOVERNMENT OF INDIA UNDER THE SOFTWARE TECHNOLOGY PAR K S OF INDIA SCHEME (STPI) AS AN 100% EOU AND HAS ALSO BEEN GRANTED A GREEN CARD FOR THE PURPOSE. THE ASSESSEE 3 HAD CLAIMED DEDUCTION UNDER SEC. 10B OF THE ACT WHICH WAS DENIED BY THE ASSESSING OFFICER ON THE BASIS THAT THE ASSESSEE HAD NOT OBTAINED STATUTORY APPROVAL OF 100% EOU FROM THE BOARD , INSTEAD IT HAD OBTAINED APPROVAL UNDER STP SCHEME AS 100% EOU. IN THIS REGARD, THE ASSESSING OFFICER PLACED RELIANCE ON THE DECISION OF HYDERABAD BENCH OF THE ITAT IN THE CASE OF INFOTEC ENTERPRISES LTD. VS.CIT (2003) 85 ITD 325 (HYD.). DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE REFERRING SEVERAL LITIGATIONS ON THE SUBJ ECT SUBMITTED THAT EXEMPTION UNDER SEC. 10A IS AVAILABLE TO THE ASSESSEE IN PLACE OF SEC. 10B. THE ASSESSEE ACCORDINGLY FILED FORM NO. 56F FOR CLAIMING DEDUCTION UNDER SEC. 10A. THE ASSESSING OFFICER DID NOT AGREE WITH IT ON THE BASIS THAT FORM NO. 56F WAS NOT PREPARED OR SIGNED WELL IN TIME BEFORE THE FILING OF THE RETURN OF INCOME FOR CLAIMING EXEMPTION UNDER SEC. 10A OF THE ACT. THE ASSESSING OFFICER ALSO NOTED THAT THE ASSESSEE HAD NOT FILED FORM NO. 56F WITH THE RETURN OF INCOME WHICH IS REQUIRED AS PE R RULE 16D OF THE IT RULES. THE LEARNED CIT(APPEALS) HAS UPHELD THE ACTION OF THE ASSESSING OFFICER, WHICH HAS BEEN QUESTIONED BY THE ASSESSEE BEFORE THE ITAT ON THE ABOVE GROUNDS. 4. AT THE OUTSET OF HEARING, THE LEARNED AR POINTED OUT THAT THE ISSUE R AISED IN THE PRESENT APPEAL IS FULLY COVERED BY THE DECISION OF THE HON'BLE 4 HIGH COURT OF DELHI IN THE CASE OF ASSESSEE ITSELF FOR THE ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2009 - 10 VIDE ORDER DATED 15.12.2015 IN ITA NOS. 956, 957 AND 958/2015. 5. LEARNE D SENIOR DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW WITH THIS FURTHER SUBMISSION THAT ASSESSEE HAD NOT OBTAINED STATUTORY APPROVAL OF 100% EOU FROM THE BOARD BUT HAD OBTAINED APPROVAL UNDER STP SCHEME AS 100% EOU AS HELD IN THE CASE OF INFOTECH ENTERPRISES VS. CIT (2003) 85 ITD 325 (HYD.) FOLLOWED BY THE ASSESSING OFFICER. THUS, THE AUTHORITIES BELOW WERE JUSTIFIED IN DENYING THE CLAIMED DEDUCTION UNDER SEC. 10A OF THE ACT TO THE ASSESSEE. 6. HAVING GONE THROUGH THE DECI SION OF HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF ASSESSEE ITSELF FOR THE ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2009 - 10 (SUPRA), I FIND THAT UNDER SIMILAR FACTS AN IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. BEFORE THE HON' BLE HIGH COURT, SIMILAR CONTENTION WAS RAISED BY THE REVENUE THAT THE ASSESSING OFFICER WAS JUSTIFIED IN REJECTING THE CLAIMED EXEMPTION ON THE GROUND THAT REGISTRATION CERTIFICATE OF THE EOU WAS NOT ISSUED BY THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT UNDER SEC. 14 OF THE INDUSTRIAL (DEVELOPMENT & 5 REGULATION) ACT, 1951. IN THOSE YEARS ALSO, ASSESSEE HAD RAISED AN ADDITIONAL GROUND BEFORE THE LEARNED CIT(APPEALS) THAT DEDUC TION OUGHT TO HAVE BEEN GRANTED UNDER SEC. 10A OF THE ACT AND ASSESSEE HAD ALSO FU RNISHED AN AUDIT REPORT IN FORM NO. 56F TO REVISE HIS CLAIM TO ONE UNDER SEC. 10A OF THE ACT. HON'BLE HIGH COURT HAS BEEN PLEASED TO DISMISS THE APPEAL OF THE REVENUE. THUS, IN OTHER WORDS, THE ORDER OF THE ITAT THAT THE ASSESSEE IS ELIGIBLE FOR CLAIMING D EDUC TION UNDER SEC. 10A OF THE ACT AND THE ASSESSING OFFICER SHOULD HAVE ALLOWED THE SAME HAS BEEN UPHELD. I THUS RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF ASSESSEE ITSELF FOR THE ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2009 - 10, WHILE SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW, DIRECT THE ASSESSING OFFICER TO ALLOW THE ASSESSEE THE CLAIMED DEDUCTION UNDER SEC. 10A OF THE ACT. THE GROUNDS INVOLVING THE ISSUE ARE THUS ALLOWED. 7. IN RES ULT, THE APPEAL IS ALLOWED . O RDER PRONOUNCED IN THE OPEN COURT ON 28 . 0 7 . 201 6 S D/ - ( I.C. S UDHIR ) JUDICIAL MEMBER DATED: 28 / 0 7 /201 6 MOHAN LAL 6 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR DATE DRAFT DICTATED DIRECTLY ON COMPUTER 28 . 0 7 .201 6 DRAFT PLACED BEFORE AUTHOR 2 8 . 0 7 .2016 DRAFT PROPOSED & PLACED BEFORE THE SECOND M EMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. - - APPROVED DRAFT COMES TO THE SR.PS/PS 2 8 . 0 7 .2016 KEPT FOR PRONOUNCEMENT ON 2 8 .0 7 .2016 FILE SENT TO THE BENCH CLERK 2 8 . 0 7 .2016 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.