ASST CIT 10(3), MUMBAI V. EMBIO LTD, NAVI MUMBAI

ITA 3876/MUM/2012

• Counselvise Citation: 387619914 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2014
• Appeal Filed By: Department
• Bench Allotted: E
• Next Hearing Date: 10-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2012
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATHADE
• Keywords: Revised return
• Section: 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./I.T.A. NO.3876/MUM/2012 ( / ASSESSMENT YEAR :2009-10 ) THE ASSTT. COMMISSIONER OF INCOME TAX 10(3), 4 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 / VS. M/S EMBIO LTD., 413-416, VARDHMAAN MARKET, SECTOR-17, VASHI, NAVI MUMBAI-400705 ( / APPELLANT) .. ( !' / RESPONDENT) ./ #$ ./PAN/GIR NO. : AAACE1154C % / APPELLANT BY : SHRI PRAKASH L PATHADE !' & % /RESPONDENT BY : NONE ' & ( ) / DATE OF HEARING : 10.7.2014 *+ & ( ) /DATE OF PRONOUNCEMENT : 10. 7.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE REVENUE IS DIREC TED AGAINST THE ORDER DATED 07.03.2012 PASSED BY LD CIT(A)-22, MUMBAI AND IT RE LATES TO THE ASSESSMENT YEAR 2009-10. NONE APPEARED ON BEHALF OF THE ASSE SSEE. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE, WITHOUT THE PRESENC E OF THE ASSESSEE. 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN DIRECTING THE AO TO EXAMINE THE CLAIM OF WEIGHTED DEDUCTION U/S 32(2 AB) OF THE ACT, EVEN THOUGH THE ASSESSEE HAS CLAIMED THE SAME BEFORE THE AO WIT HOUT FILING REVISED RETURN OF INCOME. ACCORDING TO REVENUE, THE LD CIT(A) HAS FA ILED TO FOLLOW THE DECISION I.T.A. NO.3876/MUM/2012 2 RENDERED BY THE HONBLE APEX COURT IN THE CASE OF C IT VS. GOETZE INDIA LTD (284 ITR 323), WHEREIN THE HONBLE SUPREME COURT HAD HEL D THAT THE NEW CLAIM FOR DEDUCTION HAS TO BE MADE BY FILING REVISED RETURN O F INCOME. 3. WE HEARD LD D.R AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSEE DID NOT CLAIM WEIGHTED DEDUCTION AS PROVIDED U/S 32 (2AB) OF THE ACT IN RESPECT OF R & D EXPENSES INCURRED BY IT. IT IS PERTINENT TO NOTE THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S 32(2AB) IN RESPECT OF ITS R&D EXPENSES @ 150%, IF ITS SCHEME IS APPROVED BY THE PRESCRIBED AUTHORI TY. THE ASSESSEE MADE THE SAID CLAIM BEFORE THE AO DURING THE COURSE OF ASSES SMENT PROCEEDINGS, SINCE IT RECEIVED THE APPROVAL FROM DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH (DSIR) ON 03.11.2011, I.E., DURING THE COURSE OF AS SESSMENT PROCEEDINGS. HOWEVER THE AO, BY FOLLOWING THE DECISION OF HONBL E APEX COURT IN THE CASE OF GOETZ INDIA LTD (SUPRA), TOOK THE VIEW THAT THE AS SESSEE IS NOT ENTITLED TO MAKE THE SAID CLAIM WITHOUT FILING REVISED RETURN OF INC OME AND ACCORDINGLY REJECTED THE CLAIM FOR WEIGHTED DEDUCTION MADE BY THE ASSESS EE. 4. HOWEVER, THE LD CIT(A) NOTICED THAT THE ITAT HAS CONSIDERED AN IDENTICAL CLAIM MADE BY THE ASSESSEE IN AY 2006-07 IN ITA NO. 6419/MUM/2009 AND THE TRIBUNAL, VIDE ITS ORDER DATED 15.7.2011, HAD RESTO RED THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE CLAIM AFRESH IN THE LIGHT OF APPROVAL GIVEN BY DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL RESEARCH , GOVERNMENT OF INDIA. ACCORDINGLY, THE LD CIT(A) DIRECTED THE AO TO FOLLO W THE DIRECTIONS GIVEN BY THE ITAT IN AY 2006-07. AGGRIEVED, THE REVENUE HAS FIL ED THIS APPEAL BEFORE US. I.T.A. NO.3876/MUM/2012 3 5. THE LD D.R SUBMITTED THAT THE ASSESSEE HAD CLA IMED THE WEIGHTED DEDUCTION IN ASSESSMENT YEAR 2006-07 IN ITS ORIGINA L RETURN OF INCOME, WHERE AS IN THE INSTANT YEAR, THE ASSESSEE DID NOT MAKE ANY CLAIM FOR WEIGHTED DEDUCTION IN THE RETURN OF INCOME. ACCORDINGLY, HE SUBMITTED THAT THE LD CIT(A) WAS NOT JUSTIFIED IN FOLLOWING THE DECISION OF TRIBUNAL REN DERED FOR AY 2006-07, SINCE THERE IS NO PARITY OF FACTS BETWEEN THE TWO YEARS. THE LD D.R FURTHER SUBMITTED THAT THE ASSESSEE CANNOT MAKE ANY FRESH CLAIM WITHO UT FILING REVISED RETURN OF INCOME IN VIEW OF THE DECISION RENDERED BY HONBLE APEX COURT IN THE CASE OF GOETZ INDIA LTD (SUPRA). 6. THE CONTENTION RAISED BY LD D.R. BY PLACING R ELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA ) LTD (SUPRA) IS NOT ACCEPTABLE. A CAREFUL PERUSAL OF THE SAID ORDER OF THE HONBLE APEX COURT WOULD SHOW THAT THE HONBLE SUPREME COURT HAS, IN CLEAR T ERMS, STATED THAT THE DECISION RENDERED IN THE ABOVE SAID CASE IS LIMITED TO THE POWER OF THE ASSESSING OFFICER AND IT DOES NOT IMPINGE ON THE POWER OF THE ITAT U/S 254 OF THE ACT. HENCE, WE ARE UNABLE TO ACCEPT THE CONTENTIONS OF T HE LD D.R. RELATING TO THE DIFFERENCE IN THE FACTS PREVAILING IN THE INSTANT Y EAR VIS--VIS THE FACTS THAT PREVAILED IN AY 2006-07. THERE IS NO DISPUTE THAT THE TRIBUNAL HAD RESTORED THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE ISSUE IN THE LIGHT OF THE APPROVAL GIVEN BY DSIR. WE NOTICE THAT THE LD CIT(A) HAD RESTORED THE MATTER IN THIS YEAR ALSO WITH THE DIRECTION TO EXAM INE THE ISSUE IN THE LIGHT OF DIRECTION GIVEN BY THE TRIBUNAL IN AY 2006-07. SIN CE THE LD CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE TRIBUNAL IN THE EARLIE R YEARS, WE DO NOT FIND ANY INFIRMITY IN HIS DECISION. I.T.A. NO.3876/MUM/2012 4 7. IN THE RESULT, THE APPEAL FILED BY THE REVEN UE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 10TH JULY, 2014 . *+ ' , -. / 0 10TH JULY, 2014 + & 2 3 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER - ' MUMBAI: 10 TH JULY,2014. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. ' 5( ( ) / THE CIT(A)- CONCERNED 4. ' 5( / CIT CONCERNED 5. 67 2 !(8 , ) 8 , - ' / DR, ITAT, MUMBAI CONCERNED 6. 2 9 : / GUARD FILE. ; ' / BY ORDER, TRUE COPY < # (ASSTT. REGISTRAR) ) 8 , - ' /ITAT, MUMBAI