ACIT,CIRCLE-1, Nagpur V. M/S INFOCEPTS TECHNOLOGIES PVT. LTD, Nagpur

ITA 55/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1695 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2014
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: K P DEVANI
• Keywords: Wrong claim; Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 55/NAG./2014 ( ASSESSMENT YEAR : 2010-11 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE1, MECL BUILDING, SEMINARI HILLS NAGPUR 440 001 APPELLANT V/S M/S. INFOCEPTS TECHNOLOGIES PVT. LTD. NO.11 , I.T. PARK, PARSODI NAGPUR 440 022 PAN AABCI2497Q .... RESPONDENT REVENUE BY : SHRI NARENDRA KANE ASSESSEE BY : SHRI K.P. DEVANI DATE OF HEARING 18.08.2015 DATE OF ORDER 28.08 .2015 O R D E R PER MUKUL K. SHRAWAT, J.M. THIS APPEAL FILED BY THE REVENUE IS EMANATING FROM TH E IMPUGNED ORDER DATED 29 TH NOVEMBER 2013, PASSED BY THE LEARNED COMMISSIONER (APPEALS)-I, NAGPUR, FOR THE ASSESSMEN T YEAR 2010-11, ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN DELETIN G THE DISALLOWANCE OF EXEMPTION CLAIMED UNDER SECTION 10A AMOUNTING TO ` 4,98,21,864. M/S. INFOCEPTS TECHNOLOGIES PVT. LTD. 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT APP RECIATING THE FACT THAT SINCE THE ASSESSEE HAS COMMENCED ACTI VITY AFTER 01.04.2000 AS A STPI UNIT (NOT AS SEZ UNIT) HENCE, NO T ELIGIBLE FOR EXEMPTION UNDER SECTION 10A AS PER CONDITIONS L AID DOWN IN SECTION 10A(2)(I)(C) OF THE ACT. 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT IN ASSESS EES OWN CASE FOR THE ASSESSMENT YEAR 2006-07, THE TRIBUNAL, NAGPUR B ENCH, IN ITA NO.139/NAG./2009, FOR THE ASSESSMENT YEAR 2006-07, VIDE ORDER DATED 31 ST JULY 2009, HAS DECIDED THE ISSUE AS RAKED UP BY THE REVENUE FOR THE YEAR UNDER CONSIDERATION IN FAVOUR OF THE ASSESSEE. 3. THE FACTS IN BRIEF, AS EMERGED FROM THE CORRESPONDI NG ASSESSMENT ORDER DATED 15 TH MARCH 2013, PASSED UNDER SECTION 143(3) OF THE ACT WERE THAT THE ASSESSEE COMPANY IS LOCATED IN SOFTWARE TE CHNOLOGY PARK OF INDIA, PRASODI, AND DERIVE INCOME FROM SOFTWARE DEVELOPMEN T AND EXPORT AS WELL AS SALE OF SOFTWARE PRODUCTS. IT WAS FOUND BY THE ASSE SSING OFFICER THAT THE ASSESSEE HAD CLAIMED EXEMPTION UNDER SECTION 10A OF THE ACT OF RS 4,98,21,864, IN THE RETURN OF INCOME. THE ASSESSEE HAS SUBMITTED FORM NO.56F, DULY CERTIFIED BY A CHARTERED ACCOUNTANT AL ONG WITH APPROVAL OF STPI, PUNE. THE ASSESSING OFFICER HAS MENTIONED THA T IN THE ASSESSMENT YEAR 2005-06, ON SIMILAR ISSUE IN THE CASE OF INFOS PECTRUM INDIA PVT. LTD., THE ISSUE IS SUBJUDICE BEFORE THE HIGH COURT EVEN T HOUGH THE TRIBUNAL HAD GRANTED RELIEF. ACCORDING TO THE ASSESSING OFFICER, SINCE THE REVENUE IS AGITATING THE ISSUE OF DEDUCTION UNDER SECTION 10A OF THE ACT, THEREFORE, THE M/S. INFOCEPTS TECHNOLOGIES PVT. LTD. 3 ASSESSEE COULD NOT BE GRANTED CLAIM OF EXEMPTION RE SULTANTLY THE CLAIM UNDER SECTION 10A WAS DENIED. 4. BEING AGGRIEVED, THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHEREIN THE LEARNED CIT(A) HAS DISCUSSED THE FACTS OF THE CASE AND FEW DECISIONS OF THE HON'BLE COURTS AND THEREAFTER GRANTED THE EXEMPTION UNDER SECTION 10A OF THE ACT. 5. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS PLACED RELIANCE ON THE ASSESSMENT ORDER AND THE ARGUMENTS RAISED THEREIN, HOWEVER, ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE NOT ONLY ON THE ORDER OF THE TRIBUN AL PRONOUNCED IN ASSESSEES OWN CASE AS CITED SUPRA BUT ALSO FEW OTH ER ORDERS OF THE TRIBUNAL, NAGPUR BENCH, LISTED AS BELOW:- I) M/S. INFOSPECTRUM INDIA PVT. LTD., ITA NO.176/NAG./ 2009, ORDER DATED 13 TH AUGUST 2009; AND II) M/S. INFOSPECTRUM INDIA PVT. LTD., ITA NO.81/NAG./2 012, ORDER DATED 30 TH JANUARY 2013. 6. SINCE A VIEW HAS ALREADY BEEN TAKEN IN ASSESSEES O WN CASE FOR THE ASSESSMENT YEAR 2006-07, BY THE TRIBUNAL, NAGPUR BE NCH CITED SUPRA, HENCE, WE FIND NO REASON TO TAKE ANY OTHER VIEW EXC EPT TO FOLLOW THE SAME. RELEVANT FINDINGS OF THE DECISION OF THE CO-ORDINAT E BENCH OF THE TRIBUNAL, NAGPUR BENCH, RENDERED IN ASSESSEES OWN CASE IN IT A NO.139/NAG./2009, A.Y. 2006-07, ORDER DATED 31 ST JULY 2009, WERE AS UNDER:- M/S. INFOCEPTS TECHNOLOGIES PVT. LTD. 4 I N THIS CASE AS IT HAS BEEN GATHERED FROM THE FACTS OF THE CASE AND FROM THE CONTESTED ARGUMENTS FROM BOTH THE SIDES THAT TH E ONLY POINT TO HE DECIDED BY US IS AS TO WHETHER THE ASSESSEE I S ELIGIBLE FOR DEDUCTION U/S 10A WHICH WAS BROUGHT TO THE NOTICE OF THE AO AFTER THE AO POINTED OUT THE DEFECT IN THE COURSE OF HEARING OF THE ASSESSMENT PROCEEDING THAT THE ASSESSEE HAD MUDC A WRONG CLAIM U/S LOB. THE AO HAD RELIED UPON THE DECISION UJ' THE APEX COURT CIT ED SUPRA. GUT ON A PERUSAL OF THE SAID CASE LAW. IT TRANSPIRES THAT IN THE CITED CASE, ORDER HAD ALREADY BEEN PASSED AND AT THE TIME OF MA KING THE CLAIM NO ORDER WAS PENDING BEFORE THE AO. THEREFORE , THE HON'BLE APEX COURT HELD THAT THE AO CAN ONLY CONSID ER THE CLAIM BY WAY OF A REVISED RETURN IF THE ASSESSMENT IS PENDIN G BEFORE HIM. BUT IN THE PRESENT CASE THE DEFECT WAS POINTED OUT TO THE ASSESSEE IN THE COURSE OF HEARING OF THE ASSESSMENT PROCEEDING. HENCE, ASSESSMENT WAS PENDING BEFORE THC AO IN THE PRESENT CASE AND IN THE COURSE OF HEARING OF THE ASSESSMENT PROCEEDING ITSEL F THE ASSESSEE GOT THE SAME RECTIFIED. THEREFORE, THE CITED CASE LAW BY THE AO CANNOT BE APPLIED IN THIS CASE. IN THE PRESENT CASE THE CIT(APPEALS) HAD ASKED FOR A REMAND REPORT AND AFTER THE REMAND REPORT WAS RECEIVED HE HAS TAKEN THE VIE W THAT WHEN FOR INADVERTENT MISTAKE TECHNICAL LAPSES CAN B E RECTIFIED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THERE IS NO BAR TO ALLOW THE ASSESSEE'S MISTAKE TO BE RECTIFIED AS AN INADVERTENT MISTAKE DUE TO WRONG ADVICE AS IT OCCURRED AND GOT RECTIFI ED DURING THE COURSE OF HEARING OF ASSESSMENT PROCEEDI NG. WE ENDORSE TO THE VIEWS TAKEN BY THE CIT (APPEALS) ON AN OVERALL CONSIDERATION OF THE MATTER AT LENGTH. ACCO RDINGLY, WE UPHOLD THE ORDER OF THE CIT(APPEALS) AND REJECT THE GROUNDS OF THE REVENUE. THEREFORE, THE APPEAL FILED BY THE REV ENUE IS TREATED TO HAVE DEVOID OF MERITS. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E TRIBUNAL, WE FIND NO FORCE IN THE GROUND RAISED BY THE REVENUE AND ACCOR DINGLY THEY ARE DISMISSED. 7. IN THE RESULT, REVENUES APPEALS STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.08.2015 SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER NAGPUR, DATED: 28.08.2015 M/S. INFOCEPTS TECHNOLOGIES PVT. LTD. 5 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR