NESS TECHNOLOGY (INDIA) P.LTD, MUMBAI V. ASST CIT CEN CIR 34, MUMBAI

ITA 7016/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4270 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Next Hearing Date: 14-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 23-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Question of law
• Section: 234B

Judgement Text

, ' K INCOME TAX APPELLATE TRIBUNAL, MUMBAI -K, BENCH , , BEFORE S/SHRI. RAJENDRA, ACCOUNTANT MEMBER AND PAWAN SINGH, JUDICIAL MEMBER /.ITA NO.7016/MUM/2012, /ASSESSMENT YEAR- 2008-09 NESS TECHNOLOGIES (INDIA) PRIVATE LIMITED,UNIT 501, INTERFACE, NEW LINK ROAD, MALAD (W), MUMBAI-400 064 PAN: AAACA 9469 L V/S. ASST. CIT, CENTRAL CIRCLE-34, ROOM NO. 104, 1 ST FLOOR, AAYAKAR BHAVAN. M. K. ROAD, MUMBAI-400 020 ( / ASSESSEE ) ( / RESPONDENT) /ASSESSEE BY :SH. NIKHIL TIWARI / REVENUE BY :SH. N. K. CHAND / DATE OF HEARING :29 - 12 -2015 / DATE OF PRONOUNCEMENT : 01.01.2016 , 1961 1961 1961 1961 254 254 254 254( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - VIDE ITS ORDER DATED 09.09.2015, TRIBUNAL HAD PARTI ALLY RECALLED ITS ORDER DATED 24.09.2014, AS GROUNDS NO.13 TO 17 REMAINED UN-ADJUDICATED. 2. GROUND NO.13 DEALS WITH EXEMPTION U/S.10 A OF THE A CT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE ASSESSING OFFICER (AO)DID NOT EXCLU DE COMMUNICATION CHARGES AND EXPENSES INCURRED IN FOREIGN CURRENCY FOR TRAVELLING AND COM MUNICATION CHARGES FROM THE TOTAL TURNOVER.THE SAID SUMS WERE REDUCED FROM THE EXPORT TURNOVER WHILE COMPUTING THE DEDUCTION AVAILABLE TO THE ASSESSEE U/S. 10A OF THE ACT. THE ASSESSEE OBJECTED THE TREATMENT GIVEN BY THE AO BEFORE THE DISPUTE RESOLUTION PANEL -2 (DRP), MUMBAI. VIDE ITS DIRECTIONS, U/S. 144C(5) OF THE ACT,DATED 31.7.2012 THE DRP DIR ECTED THE A.O. TO VERIFY AND COMPUTE DEDUCTION U/S.10A OF THE ACT AS PER LAW. HOWEVER, T HE AO DID NOT EXCLUDE THE EXPENSES AS STATED EARLIER. 3. DURING THE COURSE OF HEARING BEFORE US, THE AUTHOR ISED REPRESENTATIVE (AR) OF THE ASSESSEE STATED THAT THE EARLIER THREE YEARS THE TRIBUNAL HA D DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, THAT THE HONBLE BOMBAY HIGH COURT HAD UPHELD THE O RDER OF THE TRIBUNAL FOR A.YS. 2005-06 AND 2006-07. THE DEPARTMENTAL REPRESENTATIVE (DR) L EFT THE ISSUE TO THE DISCUSSION OF THE BENCH. 4 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIALS BEFORE US. WE FIND THAT WHILE DECIDING THE ITA NO. 5712 OF 2010 (DATED 24.9 .2012), THE HONBLE JURISDICTIONAL HIGH COURT HAD FRAMED THE FOLLOWING QUESTION OF LAW: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL, IN LAW, WAS RIGHT IN HOLDING THAT THE COMMUNICATION CHARGES, PR OFESSIONAL FEES AND EXPENSES INCURRED IN FOREIGN EXCHANGE FOR TRAVELLING SHOULD BE REDUCED FROM THE TOTAL TURNOVER AS WELL AS FROM EXPORT TURNOVER FOR APPLYING THE PROVI SIONS OF SECTION 10A OF THE INCOME TAX ACT, 1961? ANSWERING THE QUESTION, THE HONBLE COURT HELD AS U NDER: 2.COUNSEL FOR THE PARTIES STATE THAT THE AFORESAID QUESTION STANDS ANSWERED AGAINST THE REVENUE IN VIEW OF THE DECISION OF THIS COURT IN TH E CASE OF CIT VS. GEM PLUS JEWELLERY INDIA LTD. REPORTED IN [2011] 330 ITR 175 (BOM). IN THIS VIEW OF THE MATTER, WE SEE NO ITA/7016/MUM/2012 (A.Y. 2008-09)NESS TECHNOLOGIE S (INDIA) PRIVATE LIMITED 2 REASON TO ENTERTAIN THE APPEAL. ACCORDINGLY, THE AP PEAL IS DISMISSED WITH NO ORDER AS TO COSTS. WE FIND THAT ON 25.09.2012, WHILE DECIDING THE APPE AL NO. 584 OF 2012, THE HONBLE HIGH COURT HAD TAKEN THE SIMILAR VIEW. AS THAT ISSUE STA NDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HONBLE HIGH COURT,SO RESPECTFULLY FOL LOWING THE SAME,WE ARE DECIDING GROUND NO.13 IN FAVOUR OF THE ASSESSEE. 5. GROUND NO.14-16 DEAL WITH NOT GRANTING CREDIT OF TA XES DEDUCING AT SOURCE (RS.24.12 LACS)/CHARGING OF INTEREST U/S. 234B AND 234C OF TH E ACT. THE AR STATED THAT THE ASSESSEE FILED RECTIFICATION APPLICATION IN THAT REGARD, THA T AUTHORITY CONCERNED MAY BE DIRECTED TO DECIDE THE ISSUES RAISED IN THE APPLICATION.DR LEFT THE ISSUES TO THE DISCRETION OF THE BENCH. 6. WE FIND THAT THE ASSESSEE HAD FILED APPLICATION U/S .154 OF THE ACT BEFORE THE AO ON 27.2.2013 AND IT HAS NOT BEEN DISPOSED BY HIM TILL DATE. WE DIRECT THAT THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE SHOULD BE DISPOSE D WITHIN SIX WEEKS OF RECEIPT OF OUR ORDER.GROUNDS NO.14-16 ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . GROUND NO.17 PERTAINS TO INITIATING PENALTY PROCE EDINGS U/S.271(1)(C)OF THE ACT. IN OUR OPINION,IT IS A PREMATURE ISSUE AND HAS TO BE REJEC TED. GROUND NO.17 STANDS DISMISSED. AS A RESULT APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COU RT ON 1 ST JANUARY, 2016. 01 , 2016 SD/- SD/- ( / PAWAN SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 01.01.2016 JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.