ADDL CIT RG 2(3), MUMBAI V. SHAH TEHCHNICAL CONSULTANTS P.LTD, MUMBAI

ITA 3503/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7951 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K SHIVARAMSHRI RAHUL HAKANI
• Section: 10B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI , ! '# $ $ $ $ , % && , , '# ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUICIAL MEMBER ./ I.T.A. NO. 3503/MUM/2013 ( ( ( ( ( / ASSESSMENT YEAR :2008-09 THE DCIT(OSD)-2(3), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. SHAH TECHNICAL CONSULTANTS PVT. LTD., 407, RAHEJA CENTRE, PLOT NO. 214, NARIMAN POINT, MUMBAI-400 021 #) ! ./ %* ./ PAN/GIR NO. : AADCS 4968D ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . / APPELLANT BY: SHRI KISHOR DHULE ,-)+ / . / RESPONDENT BY: SHRI K. SHIVARAM SHRI RAHUL HAKANI / 01! / DATE OF HEARING :11.08.2014 23( / 01! / DATE OF PRONOUNCEMENT :13.08.2014 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-6, MUMBAI DT. 19.2.2013 PERTAINING TO A. Y.2008-09. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF CLAIM OF EXEMPTION MADE U/S. 10A OF THE ACT. ITA NO. 3503/M/13 2 3. THE ASSESSEE IS IN THE BUSINESS OF PROVIDING CON SULTANCY IN THE AREA OF ENGINEERING AND DESIGN OF WATER SUPPLY, SEWERAGE , STORM WATER, ROADS AND OTHER UTILITIES. THE RETURN WAS ELECTRONICALLY FILED ON 30.9.2008 DECLARING INCOME AT RS. 2,50,85,607/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTIC ES WERE ISSUED AND SERVED UPON THE ASSESSEE. WHILE SCRUTINIZING THE R ETURN, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLAIMED EXEMP TION U/S. 10A IN RESPECT OF ITS STPI BUSINESS UNIT. THE AUDITORS R EPORT IN FORM NO. 56F WAS ALSO SUBMITTED. THE AO WAS OF THE OPINION THAT ASSESSEE SHOULD HAVE CLAIMED THE EXEMPTION U/S. 10B OF THE ACT. ACCORDI NG TO THE AO, AS PER PROVISION OF SEC. 10B(5), EXEMPTION U/S. 10B IS AVA ILABLE ONLY IF THE ASSESSEE FURNISHES DETAILS IN THE PRESCRIBED FORM A LONGWITH RETURN OF INCOME. FOR THIS PURPOSE, THE PRESCRIBED FORM IS 5 6G. THE AO FOUND THAT THE ASSESSEE HAS NOT SUBMITTED ANY REPORT IN F ORM NO. 56G AND DENIED THE CLAIM OF EXEMPTION U/S. 10A/10B. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE R EMAND REPORT OF THE AO, THE LD. CIT(A) FINALLY CAME TO THE CONCLUSION T HAT: THE FILING OF FORM NO.56G IS ONE OF THE REQUIREMEN TS FOR CLAIM OF EXEMPTION U/S 10B. THE APPELLANT COMPANY F ILED FORMS NO 56F APPLICABLE FOR CLAIM OF EXEMPTION U/S 1OA AND A LSO MADE A MISTAKE OF CLAIMING EXEMPTION U/S.1OA. THE FORM NO. 56G DATED 10.01.2011 CONTAINS EXACTLY THE SAME DETAILS AS WAS IN FORM NO.56F DATED 30.09.2008 FILED WITH THE RETURN OF IN COME. THE AOS OBJECTION IN THE REMAND REPORT, THEREFORE IS N OT VERY MATERIAL AS IT IS WELL ACCEPTED THAT THE SUBSTANCE PREVAILS OVER FORM. THE NAGPUR BENCH E COURT, MUMBAI IN THE CASE OF ITO,WAR D-1(3) NAGPUR VS. SMT. MEENA ARUN SAXENA HAS HELD THAT CLA IM MADE U/S.1OA OR 1OB AND FILING OF 56G INSTEAD OF 56F ARE TECHNICAL MISTAKES, THEREFORE, DEDUCTIONS ARE TO BE ALLOWED. THE AO IS DUTY BOUND MAKE CORRECT ASSESSMENT OF THE TOTAL INCOME O F AN ASSESSEE ITA NO. 3503/M/13 3 AND NOT EXPECTED TO TAKE ADVANTAGE OF MISTAKE OF TH E ASSESSEE AS PROVIDED IN THE CBDT CIRCULAR: NO. 14(XL-35) OF 195 5, DATED 11- 4-1955 AND FURTHER STATES THAT, IT IS ONE OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN T HE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD TH E OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PRO CEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME RE FUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, B ENEFIT THE DEPARTMENT, FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEES ON WHOM IT IS IMPOSED BY LAW, OF FICERS SHOULD (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE O MITTED TO CLAIM FOR SOME REASON OR OTHER:(B) FREELY ADVISE THEM WHE N APPROACHED BY THEM AS TO THEIR RIGHTS AND LIABILITIES AND AS T O THE PROCEDURE TO BE ADOPTED FOR CLAIMING REFUNDS AND RELIEFS. THUS, MERELY BECAUSE FORM NO.56F WAS FILED WITH THE RETURN OF INCOME INS TEAD OF 56G AND EXEMPTION U/S 1OA WAS CLAIMED INSTEAD OF L0B, T HE EXEMPTION U/S 10B CANNOT BE DENIED ONLY DUE TO THIS TECHNICAL REASON IF OTHER CONDITIONS PROVIDED IN SECTION 10B ARE FULFILLED 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUP PORTED THE FINDINGS OF THE AO. 7. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN SUBMITTED BEFORE THE LD. CIT(A). 8. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE AO NEVER CONFRONTED THE ASSESSEE THAT HE IS EXAMINING THE CL AIM OF THE ASSESSEE U/S. 10B OF THE ACT AND NOT U/S. 10A. WE FIND THAT THE ASSESSEE HAS FILED THE AUDIT REPORT IN FORM NO. 56F WHEREAS FOR THE CLAIM OF EXEMPTION U/S. 10B, REPORT IN FORM NO. 56G IS REQUIRED. WE FIND T HAT REPORT IN FORM NO. 56G WAS FILED BY THE ASSESSEE BEFORE THE LD. CI T(A) WHO HAD REMANDED THE MATTER AND ALLOWED THE AO AN OPPORTUNI TY. FURTHER, THE ITA NO. 3503/M/13 4 DETAILS AS REQUIRED IN FORM NO. 56G ARE SAME AS REQ UIRED IN FORM NO. 56F. IN OUR CONSIDERED VIEW, THE CLAIM OF THE ASSE SSEE CANNOT BE DENIED FOR SUCH HYPER TECHNICAL REASONS. WE, THEREFORE, D O NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST, 2014 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) '# / JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 5' DATED : 13 TH AUGUST, 2014 . . ./ RJ , SR. PS '4 '4 '4 '4 / // / ,0 ,0 ,0 ,0 6(0 6(0 6(0 6(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 8& ,0 , , / DR, ITAT, MUMBAI 6. &9 : / GUARD FILE. '4 '4 '4 '4 / BY ORDER, -0 ,0 //TRUE COPY// ; ;; ; / < < < < % % % % (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI