M/s. Egon Zehnder Information & Research Services Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 396/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81605 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 22-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: JAN PRIYA ROOP RAI
• Keywords: Transfer pricing; Revised return
• Section: 143(3); 10B; 263; 10

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI G. D. AGARWAL, HONBLE VICE PRESIDENT AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 396 /DEL/ 2013 (ASSESSMENT YEAR: 2007 - 08 ) EGON ZEHNDER INFORMATION & RESEARCH SERVICES PVT. LTD., 43 - PRITHIVIRAJ ROAD, NEW DELHI PAN:AABCE3735G VS. DCIT, CIRCLE - 11(1) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : VISHAL KALRA & MISS JANPRIYA ROOP RAI, ADV. RESPONDENT BY : NIDHI SRIVASTAVA, SR. DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 09.112012 OF THE CIT(A), XIII, NEW DELHI RELEVANT TO THE ASSESSMENT YEAR 2007 - 08 . 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN UPHOLDING THE ORDER OF THE DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 11(1), NEW DELHI, (HEREINAFTER REFERRED TO AS THE AO) ASSESSING THE INCOME OF THE APPELLANT FOR THE RELEVANT ASSESSMENT YEAR AT RS. 41,06 ,960/ - , AS AGAINST THE RETURNED INCOME OF RS. 5,995/ - . 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO DISALLOWING DEDUCTION CLAIMED U/S 10A/10B OF THE ACT HOLDING THAT STPI WAS NOT AN AUTHORITY COMPETENT AS PER THE PROVISION OF SECTION 10A/10B OF THE ACT TO GRANT REGISTRATION. 3. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE AO DISALLOWING THE DEDUCTION CLAIMED BY THE APPELLANT U/S 10A/10B OF THE ACT, ALLOWIN G THAT THE APPELLANT HAS MADE A FRESH CLAIM OF DEDUCTION FOR THE FIRST TIME, NOT BY WAY OF REVISED RETURN. 4. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE AO WAS BOUND TO ASSESS THE CORRECT TAXABLE INCOME, ALLOWING DEDUCTION AS C LAIMED BY THE APPELLANT U/S 10A/ 10B OF THE ACT AS THE SAME WAS NOT A FRESH CLAIM AS ALLEGED IN THE ASSESSMENT ORDER. 5. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN HOLDING THAT THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZE (I) LTD. 284 ITR 323 WAS APPLICABLE PAGE NO. 2 TO APPELLANTS CASE AND FURTHER ERRED IN HOLDING THAT IT CURTAILED THE POWERS OF THE CIT(A) TO ENTERTAIN ADDITIONAL GROUND(S) OF APPEAL IN RESPECT OF CLAIMS NOT MADE BY WAY OF REVISED RETURN. 3. APROPOS ELIGIBILITY TO CLAIM DEDUCTION U/S 1 0B OF THE ACT. 4. BRIEF FACTS OF THE CASE AS STATED BY THE LD CIT(A)S IN HIS ORDER IS THAT: - 1. THE APPELLANT IS A 100% EOU REGISTERED UNDER STPI. IT CLAIMED DEDUCTION U/S 10B OF THE IT ACT ON THE BASIS OF REGISTRATION WITH STPI. HOWEVER, DEDUCTION UNDER 10B ON THE BASIS OF REGISTRATION WITH STPI IS NOT ALLOWABLE IN VIEW OF THE JUDGMENT DATED 31.05.2002 OF ITAT, HYDERABAD, B BENCH IN THE CASE OF INFOTECH ENTERPRISES LTD. VS. JOINT CIT85ITD 325 WHEREIN THE HONBLE ITAT HAS HELD THAT STPI IS NOT THE BOARD REFERRED TO IN CLAUSE - (IV) OF EXPLANATION - 2 BELOW SECTION 10B(8). AS A RESULT, THE APPELLANTS ORDER PASSED U/S 143(3) DATED 02.06.2009 WAS SET ASIDE BY THE COMMISSIONER OF INCOME TAX DELHI - IV VIDE HIS ORDER DATED 07.07.2010, SINCE THE ORIGINAL ORDER PASSE D BY THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AS THE DEDUCTION U/S 10B OF THE IT ACT WAS WRONGLY ALLOWED BY AO. THE ASSESSMENT WAS SET ASIDE U/S 263 OF THE IT ACT. IN THE DENOVO PROCEEDINGS U/S 143(3) R.W.S 263 THE CLAIM OF THE APPEL LANT U/S 10B AS WELL AS THE FRESH CLAIM PUT UP U/S 10A BY THE APPELLANT BEFORE AO WAS DISALLOWED ON THE GROUND THAT THE CLAIM MADE BY THE APPELLANT FOR DEDUCTION U/S 10A HAS NOT BEEN MADE BY WAY OF REVISED RETURN OF INCOME. 2. THE CLAIM OF THE APPELLANT T HAT IF DEDUCTION U/S 10B IS NOT ADMISSIBLE IN VIEW OF THE DELHI HIGH COURT JUDGEMENT IN THE CASE OF CIT VS. REGENCY CREATION LTD. AND CIT VS. VALIANT COMMUNICATION LTD. ITA NO. 69/2008, 783/2009 AND 1239/2011 AND ITA NO. 2002/2010, 438 TO 441/2012 DATED 17 .09.2012 THAN THE APPELLANT MAY BE ALLOWED DEDUCTION U/S 10A OF THE INCOME TAX ACT WHICH IS PERMISSIBLE UNDER LAW, IS NOT ACCEPTABLE AS THE CLAIM WAS NOT MADE BY WAY OF REVISED RETURN OF INCOME. THE CASE LAWS RELIED UPON BY THE APPELLANT IN THIS REGARD ARE OLD ONE AND THE LATEST JUDGEMENT OF THE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. VS. CIT 284 ITR 323 (SC) HAS OVERRULED SUCH CASE LAWS, WHEREIN IT IS HELD THAT THE AO HAS NO POWER TO ENTERTAIN ANY FRESH CLAIM WITHOUT FILING REVISED RETURN OF INCOME. THE POWER OF CIT(A) ARE CO - TERMINUS WITH THAT OF AO, THEREFORE, CIT(A) ALSO HAS NO POWER TO ENTERTAIN FRESH CLAIMS. 5. BRIEF FACTS OF THE CASE AS EMERGING FROM THE RECORDS IS AS FOLLOWS: I . THE APPELLANT IS A PRIVATE COMPANY INCORPORATED IN INDIA AND IS , INTER ALIA, ENGAGED IN THE BUSINESS OF PROVIDING SOFTWARE SOLUTIONS TO ASSOCIATED ENTERPRISES. THE APPELLANT IS A 100 PERCENT EXPORT ORIENTED UNDERTAKING ('EOU') AND REGISTERED WITH SOFTWARE TECHNOLOGY PARK OF INDIA ('STPI'). II. FOR THE RELEVANT ASSESSMENT YEAR, THE APPELLANT FURNISHED ITS RETURN OF INCOME ON OCTOBER 31, 2007, AND CLAIMED TAX HOLIDAY UNDER SECTION 10B OF THE ACT . THE APPELLANT HAD DULY SUBMITTED THE REPORT ISSUED BY THE CHARTERED ACCOUNTANT IN FORM 56G IN RESPECT OF EXEMPTION CLAI MED UNDER PAGE NO. 3 SECTION 10B OF THE ACT . III. THE ORIGINAL ASSESSMENT PROCEEDINGS WERE COMPLETED VIDE ASSESSMENT ORDER DATED JUNE 2, 2009 PASSED BY ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT, ACCEPTING THE CLAIM OF THE APPELLANT. IV. THE COMMISSIONER OF INCOME - TAX (CIT) INITIATED REVISIONARY PROCEEDINGS ON THE GROUND THAT DEDUCTION UNDER SECTION 1 0 B OF THE ACT, IS NOT ALLOWABLE IN VIEW OF THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF INFOTECH ENTERPRISES LTD VS JCIT 85 ITD 325 (HYD) ON THE GROUND THAT DEDUCTION CANNOT BE ALLOWED ON THE BASIS OF REGISTRATION WITH STPI, SINCE STPI IS NOT THE BOARD REFERRED TO IN CLAUSE (IV) OF EXPLANATION 2 BELOW SECTION 10B (8) OF THE ACT. AS A RESULT, THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE BY CIT VIDE ORDER DATED JULY 7, 2010 UNDER SECTION 263 OF THE ACT DIRECTING THE AO TO MAKE FRESH ASSESSMENT AFTER CONSIDERING THE CLAIM FOR DEDUCTION AFRESH . V . IN THE DE NOVO PROCEEDINGS, THE AO WAS SATISFIED THAT THE APPELLANT SATISFIES ALL THE CONDITIONS FOR CLAIMING DEDUCTION UNDER SECTION 10A OF THE ACT, HOWEVER, HE WAS OF THE VIEW THAT THE APPELLANT OUGHT TO HAVE CLAIMED DEDUCTION UNDER SECTION 10A OF THE ACT AS AGAINST SECTION 10B OF THE ACT IN THE RETURN OF INCOME. ACCORDINGLY, THE APPELLANT FILED LETTER DATED DECEMBER 1, 2011 WITH THE AO TO CLAIM DEDUCTION U NDER SECTION 10A OF THE ACT, ALONG WITH A REPORT ISSUED BY THE CHARTERED ACCOUNTANT IN FORM 56F (PAGES 45 - 51 OF THE PAPER BOOK). VI . HOWEVER, THE AO VIDE ORDER DATED DECEMBER 5, 2011, DISALLOWED THE DEDUCTION CLAIMED BY THE APPELLANT, ON THE GROUND THAT THE APPELLANT HAS NOT CLAIM ED THE DEDUCTION UNDER SECTION 10A OF THE ACT BY WAY OF REVISED RETURN. VII . AGGRIEVED, THE APPELLANT PREFERRED AN APPEA L BEFORE THE CIT(A) . THE CIT(A) VIDE ORDER DATED NOVEMBER 9, 2012 UPHELD THE ORDER OF THE AO, OBSERVING THAT THE POWERS OF THE CIT(A) ARE CO - TERMINUS WITH THAT OF THE AO, AND BY RELYING ON THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD VS CIT [2006] 284 ITR 323 (SC) TO DISMISS THE APPEAL ON THE GROUND THAT THE ASSESSEE FAILED TO CLAIM BY WAY OF REVISED RETURN THE DEDUCTION U/S 10A OF THE ACT . 6 . BEING AGGRIEVED, THE ASSESSEE IS BEFORE US . THE ISSUE BEFORE US IS AS TO WHETHER THE AFORESA ID ACTION OF THE LD CIT(A) IS JUSTIFIED OR NOT. RELYING ON THE ORDER OF THE HONBLE PAGE NO. 4 HIGH COURT IN REGENCY CREATION LTD IN ITA NO. 69/2008 IN WHICH IT WAS HELD THAT APPROVAL BY DIRECTOR STPI IS NOT AN APPROVAL BY THE BOARD REFERRED TO IN CLAUSE (IV) OF EXPL ANATION (2) BELOW SECTION 10B(8) OF THE ACT. THEREFORE THE FINDING OF LD CIT(A) DENYING THE CLAIM OF DEDUCTION OF THE APPELLANT U/S 10B IS CORRECT. NOW WE PROCEED TO CONSIDER THE ASSESSEES ALTERNATE CLAIM U/S 10A OF THE ACT. 7. WE FIND THAT THE APPELLANT HAD FILED FORM 56F IN COMPLIANCE WITH THE REQUIREMENT OF SECTION 10A OF THE ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, PURSUANT TO THE REVISION ORDER OF THE CIT(A). IN SUCH CIRCUMSTANCE THE BENEFIT FOR WHICH THE ASSESSEE IS ELIGIBLE AS PER LAW CANNO T BE DENIED AND THE RATIO OF GOETZE (INDIA) IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 8. NOW, IT IS SEEN THAT THE ASSESSEE, ON BEING POINTED OUT BY THE ASSESSING OFFICER IN THE DE - NOVO PROCEEDINGS 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 OF THE CHARTERED ACCOUNTANT IN THE PRESCRIBED FORM NO.56F BEFORE THE ASSESSING OFFICER. 9. WE FIND THAT THE ALTERNATE CLAIM OF THE ASSESSEE U/S 10A WAS DENIED BY THE LD CIT(A) RELYING UPON THE JUDGMENT OF THE HONBLE S UPREME C OURT IN GOETZE INDIA LTD WHICH WAS CONSIDERED BY THE BOMBAY HIGH COURT IN CIT VS. PRUTHVI BROKERS & SHAREHOLDERS P. LTD. (BOMBAY) 349 ITR 336 IN WHICH IT WAS HELD AS UNDER: - 22. IT WAS THEN SUBMITTED BY MR. GUPTA THAT THE SUPREME COURT HAD TAKEN A DIFFERENT VIEW IN GOETZE (INDIA) LIMITED V. COMMISSIONER OF INCOME - TAX, (2006) 157 TAXMAN 1 . WE ARE UNABLE TO AGREE. THE DECISION WAS RENDERED BY A BENCH OF TWO LEARNED JUDGES AND EXPRESSLY REFERS TO THE JUDGMENT OF THE BENCH OF THREE LEARNED JUDGES IN NATIONAL THERMAL POWER COMPANY LIMITED VS. COMMISSIONER OF INCOME - TAX (SUPRA). THE QUESTION BEFORE THE COURT WAS WHETHER THE APPELLANT - ASSESSEE COULD MAKE A CLAIM FOR DEDUCTION, OTHER THAN BY FILING A REVISED RETURN. AFTER THE RETURN WAS FILED, THE APPELLANT SOUGHT TO CLAIM A DEDUCTION BY WAY OF A LETTER BEFORE THE ASSESSING OFFICER. THE CLAIM, THEREFORE, WAS NOT BEFORE THE APPELLATE AUTHORITIES. THE DEDUCTION WAS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE ACT TO MAKE AN AMENDMENT IN THE RETURN OF INCOME BY MODIFYING AN APPLICATION AT THE ASSESSMENT STAGE WITHOUT REVISING THE RETURN. PAGE NO. 5 THE COMMISSIONER OF INCOME - TAX (APPEALS) ALLOWED THE ASSESSEE'S APPEAL. THE TRIBUNAL, HOWEVER, ALLO WED THE DEPARTMENT'S APPEAL. IN THE SUPREME COURT, THE ASSESSEE RELIED UPON THE JUDGMENT IN NATIONAL THERMAL POWER COMPANY LIMITED CONTENDING THAT IT WAS OPEN TO THE ASSESSEE TO RAISE THE POINTS OF LAW EVEN BEFORE THE TRIBUNAL. THE SUPREME COURT HELD : - 4 . THE DECISION IN QUESTION IS THAT THE POWER OF THE TRIBUNAL UNDER SECTION 254 OF THE INCOME - TAX ACT, 1961, IS TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DE CISION DOES NOT IN ANY WAY RELATE TO THE POWER OF THE ASSESSING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. IN THE CIRCUMSTANCES OF THE CASE, WE DISMISS THE CIVIL APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE INCOME - TAX APPELLATE TRIBUNAL UNDER SECTION 254 OF THE INCOME TAX ACT, 1961. THERE SHALL BE NO ORDER AS TO COSTS. 23. IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGMENT. IN FACT, THE SUPREME COURT MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGMENT DOES NOT IMPINGE ON THE POWER O F THE TRIBUNAL UNDER SECTION 254. 10. GOETZE (INDIA) (SUPRA), TO OUR MIND, IS NOT ATTRACTED TO THE FACTS OF THE PRESENT CASE, SINCE THEREIN, THE CLAIM MADE SUBSEQUENTLY WAS AN ALTOGETHER FRESH CLAIM, WHEREBY THE RETURNED INCOME GOT CHANGED. HOWEVER, IT IS NOT SO HERE. UNDISPUTEDLY, IN THE PRESENT CASE THOUGH THERE IS A CHANGE OF CLAIM FROM SECTION 10 B TO 10A, NEITHER THE RETURNED INCOME, NO R THE ASSESSED INCOME OF THE ASSESSEE HAS UNDERGONE ANY CHANGE WHATSOEVER. 11 . IN CIT VS. JAI PARABOL IC SPRINGS LTD.' 306 ITR 42 ( D EL) , IT WAS HELD THAT THE CIT (A) HAD THE JURISDICTION TO ENTERTAIN THE ADDITIONAL CLAIM NOT FILED BEFORE THE ASSESSING OFFICER. 1 2 . IN ' D EEPAK 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 AND MADE U/S 32AB, WHICH CLAIM WAS ACCEPTED. 13 . 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 NONEST, IT WAS HELD THAT A CLAIM TO WHICH THE ASSESSEE IS LEGALLY ENTITLED CANNOT BE DENIED BY THE ASSESSING OFFICER ON TECHNICAL GROUN DS, EVEN IF SUCH A CLAIM HAS NOT BEEN MADE BY THE ASSESSEE. PAGE NO. 6 14. IN THE RECENT DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS ACCENTIA TECHNOLOGIES LTD BEARING ITA NO 1871/MUM/2011, THE TRIBUNAL HELD AS UNDER: '6.4 A READING OF THE REMAND REPORT OF THE ASSESSING OFFICER ALSO MAKES IT VERY CLEAR THAT THE DENIAL TO THE DEDUCTION HAS BEEN ADVOCATED ON ACCOUNT OF A TECHNICAL ERROR MADE BY THE APPELLANT. IF IT WASN'T FOR THIS TECHNICAL ERROR THE APPELL ANT WAS VERY MUCH ELIGIBLE TO CLAIM THE SAID DEDUCTION. IN VIEW OF THE ABOVE DETAILS I FIND THAT THE ACTION OF THE ASSESSI NG OFFICER IN DENYING THE APPELL ANT THE BENEFIT OF DEDUCTION IT WAS ELIGIBLE FOR CANNOT BE UPHELD. THE APPELLANT HAS CLEARLY PROVED THAT IT HAS COMPLIED WITH ALL THE PROV ISIONS OF THE INCOME TAX ACT AS FAR AS SECTION 10A IS CONCERNED. JUST BECAUSE THE APPELLANT HAD QUOTED A WRONG PROVISION OF LAW IT WAS NOT A GOOD ENOUGH REASON TO DENY RELIEF WHEN OTHERWISE THE APPELLANT WAS ENTITLED TO ITS. IN VIEW OF THIS THE ASSESSING O FFICER IS DIRECTED TO ALLOW THE SAME BENEFIT UNDER SECTION 10A OF INCOME TAX ACT TO THE APPELLANT. THIS GROUND OF THE APPEAL IS ALLOWED.' (EMPHASIS SUPPLIED) 15. IN THE CASE OF ACIT VS SHRI YESHWANT KANETKAR AND REENA ARUN SAXENA IN ITA NOS 150/NAG/2011 AND 152/NAG/2011, WHEREIN ALSO THE ASS ESSE E HAD CLAIMED DEDUCTION UNDER SECTION 10 B INITIALLY AND THE CIT INVOKED REVISIONARY AND HAD SET ASIDE THE ASSESSMENT ON THIS ISSUE. THEREAFTER, THE AO DID NOT ALLOW THE CLAIM FOR DEDUCTION UNDER SECTION 10A AS THE SAME WAS NOT CLAIMED BY WAY OF REVISED RETURN, THE TRIBUNAL ALLOWED THE CLAIM OF THE ASSESSE E UNDER SECTION 10A OF THE ACT, PLACING RELIANCE ON THE APEX COURT DECISION IN THE CASE OF HINDUSTAN STEEL LTD VS STATE OF ORISS A (1972)83 ITR 26 (SC) HOLDING THAT DEDUCTION CANNOT BE DENIED TO THE ASSESSEE ON ACCOUNT OF TECHNICAL DEFECT. THE RELEVANT OBSERVATIONS ARE THE REPRODUCED AS UNDER: 8THE MAIN REASON FOR DENIAL OF DEDUCTION UNDER SECTION 10A WAS THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 10 B INSTEAD OF UNDER SECTION 10A. THE PROVISIONS OF SECTIONS 10A AND 10B ARE SIMILAR. THE FORMATS OF FORM NO.56F & 56G ARE SAME, THEREFORE, THIS WAS A TECHNICAL DEFECT, IF ANY AND ONLY ON ACCOUNT OF TECHNICALITY AND VENIAL DEFECT, THE BENEFIT ALLOWABLE TO THE ASSESSEE SHOULD NOT HAVE DISALLOWED BY THE AO. THIS VIEW OF OURS FIND PAGE NO. 7 FURTHER SUPPORT FROM THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL, REPORTED IN 135 TAXMAN 461. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE AND IN V IEW OF THE FACT THAT ON SIMILAR ISSUE THE TRIBUNAL ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE WHICH HAS BEEN FOLLOWED BY THE LEARNED CIT(A), WE CONFIRM THE ORDER OF THE LEARNED CIT(A) IN THE APPEALS OF BOTH THE ASSESSEE. IN THE RESULT, APPEALS OF THE DE PARTMENT ARE DISMISSED.' 1 7 . IN VIEW OF THE CASE - LAWS CITED ABOVE WE ENTERTAIN THE CLAIM, HOWEVER ON MERITS SINCE THE AO HAS NOT EXAMINED THE CLAIM WE THINK IT APPROPRIATE TO REMIT THE MATTER BACK TO THE FILE OF AO FOR HIS CONSIDERATION. THEREFORE WE SET ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF AO FOR FRESH CONSIDERATION; NEEDLESS TO SAY THAT ADEQUATE OPPORTUNITY MAY BE GRANTED TO THE ASSESSE E . 1 8 . IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 9 . 08 .2014. - S D / - - S D / - ( G. D. AGARWAL) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 2 9 / 08 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI