DCIT 10(3), MUMBAI V. `VITAE INTERNATIONAL ACCOUNTING SERVICE P.LTD, MUMBAI

ITA 5078/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8124 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2014
• Appeal Filed By: Department
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 05-07-2013
• Court: TRIBUNAL
• Department Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Revised return
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; ,OA ,OA ,OA ,OA JH JKTSUNZ] YS[KK LNL; JH JKTSUNZ] YS[KK LNL; JH JKTSUNZ] YS[KK LNL; JH JKTSUNZ] YS[KK LNL; DS LE{K DS LE{K DS LE{K DS LE{K BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.5078/MUM/2013 ASSESSMENT YEAR: - 2010-11 DY. COMMISSIONER OF INCOME TAX, 10(3), MUMBAI, ROOM NO. 451,N 4 TH FLOOR, AAYKAR BHAVAN, MAHARISHI KARVE MARG, MUMBAI 400020. V S. ` M/S VITAE INTERNATIONAL ACCOUNTING SERVICES PVT. LTD. C/O R.K. KHANNA & ASSOCIATES, 402, REGENT CHAMBERS, NARIMAN POINT MUMBAI 400 021. PAN: AAACP6612Q APPELLANT RESPONDENT ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER DATED 5.4.2013 OF CIT(A) FOR THE A.Y. 2010-11. THE REVENUE HAS RAISED FOLLOWING GROUNDS:- 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF EXEMPTION ULS LOA AMOUNTING TO RS. 63,99,923/- WITHOUT CONSIDERING THE FACT THAT TH E CLAIM OF THE ASSESSEE WAS NOT IN ORIGINAL RETURN AND ALSO THE AS SESSEE NOT FILED REVISED RETURN U/S 139(5) OF THE ACT TO CLAIM SUCH DEDUCTION AS HELD BY THE HON'BLE SUPREME COURT IN THE SASE OF M/S GOETZ( LNDIA) PVT. VS CIT 2006284 ITR 323(SC)' REVENUE BY SHRI SACHIDANAND DUBEY. ASSESSEE BY SHRI RAJA B. SINGH DATE OF HEARING 30-10-2014 DATE OF PRONOUNCEMENT 30-10-2014 ITA NO.5078/MUM/2013 ASSESSMENT YEAR: - 2010-11 2 | P A G E 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WHILE DECIDING THE ISSUE OUGHT TO HAVE TAKEN INTO ACCOUNT THE DECISION IN THE CASE OF JAYBHARAT CO-OP. HOUSING SO CIETY LTD. V/S ITA (2011) 10 ITR (TRIB.) 717 (ITAT-MUM) AND ALSO THE D ECISION IN THE CASE OF ORISSA RURAL HOUSING DEVELOPMENT CORPORATION LTD . V/S ACIT. CIR.1(1)(2012)17 TAXMANN.COM 186(ORISSA)' 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RENDERI NG IT ENABLED SERVICES AND SET UP STP (SOFTWARE TECHNOLOGICAL PARK) FACILI TY FROM 10.08.2004. IN THE RETURN OF INCOME, THE ASSESSEE HAS CLAIMED DEDUCTION U /S 10A AT THE RATE OF 50%. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE HAS SUBMITTED THE REVISED COMPUTATION OF INCOME CLAIMING DEDUCTION U/ S 10A OF THE ACT., AT THE RATE OF 100% INSTEAD OF 50% CLAIMED IN THE RETURN OF INCO ME. THE ASSESSING OFFICER DECLINED TO ACCEPT THE CLAIM OF DEDUCTION U/S 10A @ 100 % ON THE GROUND THAT IN THE ABSENCE OF REVISED RETURN IT CANNOT BE ENTERTAI NED. 3. ON APPEAL, THE CIT(A) HAS ACCEPTED THE CLAIM OF T HE ASSESSEE. 4. WE HAVE HEARD THE LD. DR AS WELL AS LD. AUTHORIZED R EPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE GRIEVA NCE OF THE REVENUE IS THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE WIT HOUT FILING THE REVISED RETURN OF INCOME. THE REVENUE HAS RELIED UPON THE DECISION O F HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. V. CIT [284 ITR 323 (SC) AS WELL AS THE DECISION OF THIS TRIBUNAL IN THE CASE OF JAYBHARAT CO-OP. HOUSING SOCIETY LTD. V/S ITO (2011) 10 ITR (TRIB.) 717(ITAT-MUM) . 5. ON THE OTHER HAND, THE LD. AUTHORIZED REPRESENTATI VE HAS SUBMITTED THAT THE APPELLATE AUTHORITY HAS POWER TO ENTERTAIN THE CLAIM, NOT MADE IN THE RETURN OF INCOME. HE HAS FURTHER SUBMITTED THAT THIS CLAIM OF THE ASSESSEE IS NOT EVEN A FRESH CLAIM BUT THERE WAS ONLY A MISTAKE IN MAKING CLAIM IN THE RETURN OF INCOME. ITA NO.5078/MUM/2013 ASSESSMENT YEAR: - 2010-11 3 | P A G E HE HAS RELIED UPON THE DECISION OF HON'BLE JURISDICT IONAL HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD [20 12] 349 ITR 336 (BOM). HE HAS ALSO RELIED UPON THE FOLLOWING DECISIONS:- (I) CIT VS. SAM GLOBAL SECURITIES LTD. ( 360 ITR 682) (II) DIRECTOR OF INCOME TAX (EXEMPTION) VS. THE AJAY G. PIRAMAL (2014) 90 CCH 0043(DELHI) 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS, THE FACTS OF THE CASE AS WELL AS RELEVANT MATERIAL ON RECORD, WE NOTE THAT THERE IS N O DISPUTE THAT THE ASSESSEE HAS SET UP A STP FACILITY AND, THEREFORE, AS PER THE PRO VISIONS OF SECTION 10A, THE ASSESSEE IS ENTITLED FOR DEDUCTION OF 100% OF THE INCO ME FROM THE BUSINESS. THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A AT THE R ATE OF 100% HAS BEEN ALLOWED BY THE ASSESSING OFFICER SINCE A.Y. 2005-06 TO 2009 -10. THEREFORE, AS FAR AS THE ELIGIBILITY OF DEDUCTION U/S 10A AT THE RATE OF 100% OF THE INCOME IS CONCERNED, THIS FACT HAS BEEN ACCEPTED IN ALL EARLIER YEARS. T HOUGH, THE APPELLATE AUTHORITY HAS THE JURISDICTION TO ENTERTAIN A FRESH CLAIM BUT SUBJECT TO GIVING OPPORTUNITY TO THE OTHER PARTY. IN THE CASE IN HAND, SINCE THE FACT S ARE NOT IN DISPUTE AND THE ASSESSING OFFICER HAS DENIED THE CLAIM OF THE ASSES SEE ONLY ON TECHNICAL GROUND THAT THE SAME WAS NOT MADE IN THE RETURN OF INCOME. THE QUESTION OF ELIGIBILITY OF THE ASSESSEE FOR MAKING CLAIM U/S 10A BEING A STP F ACILITY HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER AS IT IS CLEAR THAT FOR AL L THE EARLIER A.YS, IT WAS ACCEPTED AT THE RATE OF 100%. THEREFORE, IN THE CASE OF THE ASS ESSEE EVEN THE FACTS WERE NOT REQUIRED TO BE INVESTIGATED OR EXAMINED FOR DECIDING TH E CLAIM MADE BY THE ASSESSEE. IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD(SUPRA), WHILE DEALING WITH THE QUESTION OF JURISDICTION OF T HE APPELLATE AUTHORITY IN ENTERTAINING A FRESH CLAIM WITHOUT BEING MADE IN THE ORIGINAL RET URN OF INCOME, THE HON'BLE JURISDICTIONAL HIGH COURT AF TER CONSIDERING THE VARIOUS JUDGMENTS INCLUDING THE JUDGMENT OF HON'BLE SUPREME C OURT IN THE CASE OF ITA NO.5078/MUM/2013 ASSESSMENT YEAR: - 2010-11 4 | P A G E NATIONAL THERMAL POWER CO. LTD. V. CIT (1998) 229 I TR 383 (SC) HELD IN PARA 29 & 30 AS UNDER:- 29 IT IS CLEAR TO US THAT THE SUPREME COURT DID N OT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENTS TO THE EFFECT TH AT 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 ENTERT AIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGMENT. IN F ACT, 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 OF THE TRIBUNAL UNDER SECTION 254. 30. A DIVISION BENCH OF THE DELHI HIGH COURT DEALT WITH A SIMILAR SUBMISSION IN CIT VS. JAI PARABOLIC SPRINGS LTD. [2008 306 ITR 4 2 (DELHI). THE DIVISION BENCH, IN PARAGRAPH 17 OF THE JUDGMENT HELD THAT THE SUPREME COURT DISMISSED THE APPEAL MAKING IT CLEAR THAT THE DECISION WAS LIMITED TO TH E POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN B Y A REVISED RETURN AND DID NOT IMPINGE ON THE POWERS OF THE TRIBUNAL. IN PARAGRAPH 19, THE DIVISION BENCH HELD THAT THERE WAS NO PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENTERTAIN AN ADDITIONAL GROUND WHICH, ACCORDING TO THE TRIBUNAL, ARISES IN THE MATTER AND FOR THE JUST DECISION OF THE SAME. 7. A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE DEL HI HIGH COURT IN THE CASE OF CIT VS. SAM GLOBAL SECURITIES LTD. ( SUPRA). FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT, WE DO NOT FIND ANY ERROR O R ILLEGALITY IN THE ORDER OF CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE. 8. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF OCTOBER 2014 SD/- SD/- (RAJENDRA) (VIJAY PAL RAO) (ACCOUNTANT MEMBER/ YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 30-10 -2014 SKS SR. P.S, ITA NO.5078/MUM/2013 ASSESSMENT YEAR: - 2010-11 5 | P A G E COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI