ITO 8(3)(2), MUMBAI V. SOLIX TECHNOLOGIES LTD, MUMBAI

ITA 6866/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75370 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K GOPAL IZRFKHZ DH LS

Judgement Text

- 1 - VK;DJ VIHYH; VF/KDJ.K BZ U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI JH VKJ JH VKJ JH VKJ JH VKJ- -- - LH LHLH LH- -- - 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA MK0 ,L MK0 ,L MK0 ,L MK0 ,L- -- - VH VHVH VH- -- - ,E ,E,E ,E- -- - IOYU IOYU IOYU IOYU] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; DS LE{K DS LE{K DS LE{K DS LE{K BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND DR. S.T. M PAVALAN, JUDICIAL MEMBER VK;DJ VIHY LA[;K /ITA NO.6866/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2009-10 INCOME TAX OFFICER 8(3)(2), 201 AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400 020. CUKE@ VS. M/S SOLIX TECHNOLOGIES LTD 1486, C-12-13, 522, LANE NO 13, STREET NO. 14, TARNAKA SECUNDERABAD 500 017. PAN:- AACCA5943R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ ASSESSEE BY SHRI K. GOPAL IZR;FKHZ DH VKSJ LS @ REVENUE BY MS. SONIA KUMAR VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER R.C. SHARMA, AM. THIS IS AN APPEAL, FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 31.8.2012 FOR A.Y. 2009-10. THE REVENUE IN THIS APP EAL IS AGGRIEVED FOR DISALLOWANCE OF ASSESSEES CLAIM OF DEDUCTION U/S 1 0A. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE AO HAS DISALLOWED ASSESSEES CLAIM OF DEDUCTION U/S 80IA B Y OBSERVING THAT HIS PREDECESSOR HAD SETTLED OUT SIMILAR CASE IN A.Y. 20 04-05, 2006-07 AND 2008-09. THE AO FURTHER STATED THAT CIT(A) HAS ALLOWED ASSES SEES CLAIM AGAINST WHICH REVENUE IS IN APPEAL BEFORE TRIBUNAL IN THESE YEARS . BY THE IMPUGNED ORDER LQUOKBZ DH RKJH[K@ DATE OF HEARING 15-01-2014 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 15 - 01 - 2014 - 2 - CIT(A) ALLOWED ASSESSEES CLAIM BY FOLLOWING THE DE CISION OF HIS PREDECESSOR IN THE A.Y. 2004-05, 2006-07 AND 2008-09. WE FOUND THA T IN ASSESSEES OWN CASE THE TRIBUNAL VIDE ITS ORDER DATED 31 ST JANUARY 2013 AFTER CONSIDERING THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F WESTERN OUTDOOR INTERACTIVE PVT. LTD. (349 ITR 309) HELD AS UNDER:- THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S. 10A WHI CH WAS INITIALLY ALLOWED BY THE AO EXCEPT ON THE INCOME SHOWN ON FLUCTUATION OF FOREIGN EXCHANGE. THE LD. CIT(A) HAD ALLOWED DEDUCTION U/S.10A EVEN ON FOREIG N EXCHANGE FLUCTUATION AND THE APPEAL FILED BY THE REVENUE AGAINST THE SAID OR DER OF THE LD. CIT(A) WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DT. 22.5.2 009 IN ITA NO. 61/MUM/2008. THE REVENUE FILED AN M.A AGAINST THE SAID ORDER WHI CH WAS DISMISSED VIDE ORDER DT. 21 ST SEPTEMBER, 2012 IN M.A. NO. 83/MUM/2012. COPIES OF THE ORDER OF THE TRIBUNAL ARE PLACED ON OUR RECORD. 5. FOR THE YEARS UNDER CONSIDERATION, DEDUCTION U/S . 10A HAS BEEN DISALLOWED TO THE ASSESSEE WHICH HAS BEEN ALLOWED BY THE LD. IT(A ) ON THE BASIS OF AFOREMENTIONED DECISION OF THE TRIBUNAL. 6. THE REVENUE IS AGGRIEVED AGAINST SUCH ORDER OF T HE LD. CIT(A) AND HAS FILED THE AFOREMENTIONED APPEALS. 7. THE LD. DEPARTMENTAL REP RESENTATIVE NARRATING THE FACTS AND RELYING UPON THE ASSESSMENT ORDER PLEADED THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S. 10A. AS AGAINST IT IS T HE CASE OF THE LD. AR THAT THE DEDUCTION HAS RIGHTLY BEEN ALLOWED BY THE LD. CIT(A ) AS THE ISSUE REGARDING GRANT OF DEDUCTION WAS ONLY TO BE CONSIDERED IN THE INITI AL YEAR WHICH WAS ASSESSMENT YEAR 2002-03 FOR WHICH THE ASSESSEE HAS BEEN HELD T O BE ENTITLED TO GET DEDUCTION U/S. 10A AND IN SUBSEQUENT YEAR, THE ASSESSEE CANNO T BE DENIED WITH SUCH BENEFIT. SUPPORTING SUCH PROPOSITION, THE LD. AR RE LIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS WES TERN OUTDOOR INTERACTIVE PVT. LTD. 349 ITR 309 (BOM) IN WHICH IT HAS BEEN HELD THAT : WHERE A BENEFIT OF DEDUCTION IS AVAILABLE FOR A PARTICULAR NUMBER OF YEARS ON SATISFACTION OF CERTAIN CONDITIONS UNDER PROVISIONS OF THE ACT, THEN WITHOUT WITHDRAWING AS SETTING ASIDE THE RELIEF GRANTED FOR THE FIRST ASSESSMENT YEAR IN WHICH THE CLAIM WAS MADE AND ACCEPTED, THE INCOME T AX OFFICER CANNOT WITHDRAW THE RELIEF FOR SUBSEQUENT YEARS. IT IS PAR TICULARLY SO, WHEN THE DEPARTMENT HAS NOT EVEN SUGGESTED THAT THERE WAS AN Y CHANGE IN THE FACTS NECESSITATING A DIFFERENT VIEW FOR SUBSEQUENT YEARS . THUS IT WAS PLEADED BY THE LD. AR THAT IN VIEW OF A LLOWANCE OF DEDUCTION GIVEN BY DEPARTMENT IN THE INITIAL YEAR, THE DEDUCTION CANNO T BE WITHDRAWN DURING THE YEARS UNDER CONSIDERATION. - 3 - WE HAVE HEARD BOTH THE PARTIES AND THE CONTENTION S HAVE ALREADY BEEN CONSIDERED. THE ALLOWANCE OF DEDUCTION U/S 10A FOR INITIAL YEAR OF ASSESSMENT YEAR 2002-03 IS GRANTED BY THE REVENUE WHICH HAS NO T BEEN SET ASIDE. THEREFORE, THE RATIO OF THE AFOREMENTIONED DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF WESTERN OUTDOOR INTERACTIVE (P) LTD (SUPRA) WILL BE SQUARELY APPLICABLE AND RELYING UPON THAT WE DECLINE TO INTE RFERE IN THE RELIEF GRANTED BY THE LD. CIT(A) IN RESPECT OF THE YEARS UNDER CONSID ERATION. NO OTHER ISSUE WAS ARGUED BEFORE US. THEREFORE, THE APPEALS FILED BY T HE REVENUE ARE DISMISSED. 3. IT IS CLEAR FROM THE ABOVE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE THAT BY FOLLOWING THE PROPOSISTION LAID DOWN BY JUR ISDICTIONAL HIGH COURT IN CASE OF WESTERN OUTDOOR INTERACTIVE PVT. LTD. (SUPR A), ORDER OF CIT(A) WAS CONFIRMED FOR ALLOWING CLAIM OF DEDUCTION U/S 10A. THE AO HAS ALSO DISALLOWED THE ASSESSEES CLAIM FOR THE VERY SAME REASONING WH ICH WAS DISCUSSED IN THE ASSESSMENT YEAR 2004-05 AND 2006-07. AS THE TRIBUNA L HAVE ALREADY ALLOWED ASSESSEES CLAIM FOR DEDUCTION U/S 10A, BY UPHOLDIN G THE ORDER OF CIT(A), THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSI DERATION ARE PER METERIA, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 4. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED ON 15 /01/2014 SD/- SD/- (DR. S.T.M. PAVALAN) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 15 /01/2014 SKS SR. P.S - 4 - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI