ACIT, CIRCLE- 1, Nagpur V. SMT. REENA ARUN SAXENA, Nagpur

ITA 523/NAG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3140 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 22-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Section: 142(1); 10B; 147; 148

Judgement Text

1 ITA NO. 523/NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. ITA NO. 523 /NAG/2014 ASSESSMENT YEAR : 2007 - 08. ASSTT. COMMISSIONER OF INCOME - TAX, SMT. REENA ARUN SAXENA , CICLE - 1 , NAGPUR . VS . NAGPUR. PAN AETPS6959K APPELLANT. RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT BY : SHRI MUKESH AGRAWAL. DATE OF HEARING : 04 - 01 - 2016. DATE OF PRONOUNCEMENT : 5 TH FEB ., 2016. O R D E R PER SHRI SHAMIN YAHYA, A.M . THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 26 - 09 - 2014 AND PERTAINS TO ASSESSMENT YEAR 200 7 - 08 . THE GROUNDS OF APPEAL READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD . CIT(APPEALS) , HAVING UPHELD THE RE - OPENING OF ASSESSMENT U/S . 148 , ERRED I N LAW IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT APPEALED AGAINST THE ASSESSING OFFICER ' S DECISION THAT PROCEEDINGS U/S . 147 ARE FOR THE BENEFIT OF REVENUE ONLY INASMUCH AS ONLY THE I NCOME ESCAPING ASSESSMENT CAN BE BROUGHT TO TAX UNDER SUCH PROCEEDINGS AND IT I S NOT OPEN TO THE ASSESSEE TO MAKE AN ALTOGETHER NEW CLAIM OF DEDUCTION U/S . 10A WHICH WAS NOT MADE ORIGINALLY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD . CIT(APPEALS) ERRED IN IGNORING THE FACT THAT BY NOT APPEAL I NG AGAINST THE ASSESSING OFFICER ' S DECISION AS TO THE NON - 2 ITA NO. 523/NAG/2014 MAINTAINABILITY OF THE CLAIM U/S . 10A OF THE I T . ACT DURING RE - ASSESSMENT PROCEEDINGS U/S.148 OF THE LT . ACT , THE CAUSE TO DECI DE THE CASE ON MERIT CEASED TO EXIST . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD . CIT(APPEALS) ERRED IN ALLOWING EXEMPTION U/S . 1 OA TO THE ASSESSEE . 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD . CIT(APPEALS) DID NOT APPRECIATE THAT ASSESSEE FAILED TO SUBMIT THE MANDATORY AUDIT REPORT IN FORM NO . 56F ALONGWITH THE RETURN OF INCOME U/S . 139(1) . 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD . CIT(APPEALS) DID NOT APPRECIATE THAT ASSESSEE HAV I NG FAILED TO SUBMIT AUDIT REPORT IN FORM NO.56F WITHIN THE STIPULATED TIME IN TERMS OF SEC.1 OA(5) , WAS NOT ELIGIBLE TO CLAIM EXEMPTION U/S. 1 OA . 2. AT THE OUTSET, LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE INVOLVED IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT, NAGPUR BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2006 - 07 AND 2008 - 09. HENCE LEARNED COUNSEL PLEADED THAT THERE CAN BE NO CASE FOR DISALLOWING ASSESSEES CLAIM U/S 10A FOR ASSESSMEN T YEAR 2007 - 08 WHEN THE CLAIM FOR PRECEDING YEAR AND SUCCEEDING YEAR HAVE BEEN FOUND BY THE TRIBUNAL TO BE ACCEPTABLE. HENCE LEARNED COUNSEL PLEADED THAT THE ORDER OF THE LEARNED CIT(APPEALS) SHOULD BE UPHELD. 3. PER CONTRA LEARNED D.R. CONTENDED T HAT THE MAIN GRIEVANCE OF THE REVENUE IS THAT THERE WAS REOPENING IN THIS CASE AND REOPENED PROCEEDINGS ARE FOR THE BENEFIT OF REVENUE ONLY AND LEARNED CIT(APPEALS) CANNOT ALLOW AN ALTOGETHER NEW CLAIM OF DEDUCTION U/S 10A. HENCE LEARNED D.R. PLEADED THAT THE ORD ER OF THE LEARNED CIT(APPEALS) SHOULD BE REVERSED. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. FIRSTLY WE NOTE THAT THE TRIBUNAL IN PRECEDING AS WELL AS SUCCEEDING YEARS HAS FOUND THE ASSESSEES CLAIM U/S 10A TO BE JUSTIFIED . WE MAY GAINFULLY REFER TO 3 ITA NO. 523/NAG/2014 ITATS DECISION IN ASSESSEES OWN CASE IN ITA NO. 152/NAG/2011 FOR ASSESSMENT YEAR 2008 - 09 AS UNDER : AFTER CONSIDERING THE ORDER OF THE LEARNED CIT(A), WE FOUND NO INFIRMITY IN THE FINDING OF THE CIT(A). WE NOTED THAT LEARNED CIT(A) HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION IN THE CASE OF INFOSPECTRUM PVT. LTD. (SUPRA), WHERE THE SIMILAR FACTS WERE INVOLVED. THE MAIN REASON FOR DENIAL OF DEDUCTION UNDER SECTION 10A WAS THAT THE ASSESSEE CLAIAMED DE DUCTION UNDER SECTION 10B 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, T HE BENEFIT ALLOWABLE TO THE ASSESSEE SHOULD NOT HAVE DISALLOWED BY THE AO. THIS VIEW OF OURS FIND FURTHER SUPPORT FROM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL, REPORTED IN 135 TAXMAN 461. 5. NOW THE ISSUE RAISED BY THE REVENUE IS THAT THE REOPENING WAS DONE U/S 147 AND LEARNED CIT(APPEALS) CANNOT ENTERTAIN A NEW CLAIM OF DEDUCTION U/S 10A. WE FIND THAT IN THIS CASE THE ASSESSEE HAS ORIGINALLY FILED THE RETURN ON 29 - 10 - 2007 AND THEREAFTER REVISED THE SAME ON 17 - 12 - 2007 DE CLARING AN INCOME AT RS.1,99,350/ - . THE ASSESSEE HAD CLAIMED DEDUCTION U/S 10B. THE RETURN WAS PROCESSED U/S 142(1) ON 14 - 02 - 2009. SUBSEQUENTLY THE ASSESSMENT WAS REOPENED. IN THE REOPENED ASSESSMENT THE AO FURTHER REJECTED THE ASSESSEES CONTENTION OF THE ALTERNATIVE CLAIM U/S 10A. 6. AGAINST THE ABOVE ORDER, ASSESSEE HAS APPEALED BEFORE THE LEARNED CIT(APPEALS). THE LEARNED CIT(APPEALS) HAS FOUND THE ASSESSEES CLAIM OF SECTION 10A JUSTIFIED AND ALLOWED THE SAME. THIS VIEW OF THE LEARNED CIT(APPEALS) IS I N CONSONANCE WITH THE ITATS ORDER IN ASSESSEES OWN CASE FOR THE PREVIOUS AND SUCCEEDING ASSESSMENT YEAR. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, IT CANNOT BE SAID THAT LEARNED CIT(APPE A LS) H AS ENTERTAINED AN ALTOGETHER NEW CLAIM OF DEDUCTION U /S 10A. THE ISSUE OF ASSESSEES DEDUCTION U/S 10A WAS VERY MUCH PRESENT THERE IN THE ASSESSMENT PROCEEDINGS. HENCE NO ADVERSE INFERENCE IN THE LEARNED CIT(APPEALS) ORDER IN THIS REGARD CAN BE 4 ITA NO. 523/NAG/2014 DRAWN. FURTHER MORE WE ALSO FIND THAT THE HONBLE APEX COURT I N CIT VS. SHELLY PRODUCTS 261 ITR 367 HAS EXPOUNDED THAT IF THE ASSESSEE HAS BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME - TAX, OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW, HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY, WHICH IF SATISFIED , MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. 7. IN THE BACKGROUND OF AFORESAID PRECEDENT AND DISCUSSION, WE FIND THAT THERE IS NO INFIRMITY IN THE ORDER OF LEARNED CIT(APPEALS) AND HENCE WE UPHOLD THE SAME. 8. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF FEB ., 2016 SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR , DATED: 5 TH FEBRUARY , 2016. 5 ITA NO. 523/NAG/2014 COPY FORWARDED TO : 1. S MT. REENA ARUN SAXENA, EASYPACK SOFTWARE INC., 11/2, I.T. PARK, NEAR VRCE, TELEPHONE EXCHANGE, PARSODI, NAGPUR - 440022. 2. A.C.I.T., CIRCLE - 1 , NAGPUR. 3. COMMISSIONER OF INCOME - TAX NAGPUR. 4. CIT(APPEALS) - I 1 , NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE