Appeal details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 8902 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-08-2016
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
D
Assessment Year
2011-2012
Appeal Filed On
23-03-2016
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.707/MDS/2016 ( / ASSESSMENT YEAR: 2011-12) M/S. ATHEROS INDIA LLC 11 TH FLOOR, TVH AGNITIO PARK, 141, OMR, KANDANCHAVADY, CHENNAI - 600 096. VS DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION-I(1), CHENNAI - 34. PAN: AADCA1396D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R.M.NARAYANAN, FCA /RESPONDENT BY : DR.MILIND M.BHUSARI, CIT /DATE OF HEARING : 26 TH MAY, 2016 /DATE OF PRONOUNCEMENT : 1 ST AUGUST, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX CHENNAI DATED 28.01.2016 PASSED UNDER SECTION 143(3 ) R.W.S., 144C(13) OF THE ACT PURSUANT TO THE DIRECTI ONS OF LEARNED DRP VIDE ORDER DATED 28.12.2015 IN F.NO. D RP- 2BNG/2015-16 PASSED UNDER SECTION 143(3) R.W.S., 14 4C(1) & 144C(5) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL ELABORATE GROUND S IN ITS APPEAL, HOWEVER THE ONLY ISSUE ARGUED BEFORE US AT THE 2 ITA NO.707/MDS/2016 TIME OF HEARING THE APPEAL IS THAT THE LEARNED ASSESSING OFFICER / LEARNED DRP HAS ERRED IN DENYING THE APP ELLANTS CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AN D IN THE ALTERNATIVE NOT CONSIDERING THE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A LLC COMPANY REGISTERED IN THE STATE OF DELAWARE, USA HA VING ITS BRANCH IN INDIA. THE ASSESSEE COMPANY HAD CLAIMED DEDUCTION UNDER SECTION 10B OF THE ACT BEING A 100% EXPORT ORIENTED UNIT. BUT THE LEARNED ASSESSING OFFICER OB SERVED THAT THE ASSESSEE DID NOT HAVE 100% EOU APPROVAL BY THE BOARD APPOINTED BY THE CENTRAL GOVT. UNDER SECTION 14 OF THE INDUSTRIES DEVELOPMENT & REGULATION ACT. FURTHER RE LYING ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS.REGENCY CREATIONS REPORTED IN 27 TAXMANN.COM 322 (DEL), THE LEARNED ASSESSING OFFICER DISALLOWED THE DEDUCTION UNDER SECTION 10B OF THE ACT TO THE ASSESSEE. THE L EARNED ASSESSING OFFICER FURTHER HELD THAT THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 10A CAN ALSO NOT BE CONSIDE RED AS IT IS A FRESH CLAIM OF DEDUCTION WHICH WAS NOT MADE IN THE 3 ITA NO.707/MDS/2016 RETURN OF INCOME. THE LEARNED ASSESSING OFFICER HE AVILY RELIED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF GOETZ INDIA LTD. REPORTED IN 253 ITR 353(SC) WHILE ARRIVING AT SUCH CONCLUSION. ON APPEAL, THE LEARNED DRP UPHE LD THE ORDER OF THE LEARNED ASSESSING OFFICER AGREEING WIT H HIS VIEW. 4. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE RELIED IN THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNA L IN THE CASE OF ACIT VS. SEVERN GLOCON (INDIA) PVT. LTD. IN ITA NOS.2816 & 2770/MDS/2014 VIDE ORDER DATED 19.06.201 5 AND ALSO THE ASSESSMENT ORDER IN THE CASE OF THE ASSES SEE FOR THE ASSESSMENT YEAR 2008-09, WHEREIN THE LEARNED ASSESSING OFFICER FOLLOWING THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF HEARTLAND KG INFORMATION LTD. REPORTED IN 2013 TIOL 694 (MAD) D ATED 19.08.2013 ALLOWED THE CLAIM OF DEDUCTION UNDER SEC TION 10A OF THE ACT. IT WAS THEREFORE PRAYED THAT, FOR THE R ELEVANT ASSESSMENT YEAR ALSO IN THE ALTERNATIVE, DEDUCTION UNDER SECTION 10A OF THE ACT MAY BE GRANTED TO THE ASSESS EE. 4 ITA NO.707/MDS/2016 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE COULD NO T CONTROVERT TO THE SUBMISSION OF THE LEARNED AUTHORI ZED REPRESENTATIVE. 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE MATERIALS AVAILABLE ON RECORD. ON THE IDENTICAL FACTS THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S.SEVERN GLO CON (INDIA) PVT.LTD., (SUPRA) ON THE EARLIER OCCASION H AD HELD AS FOLLOWS:- 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL ON RE CORD. EXPLANATION 2(IV) TO SECTION 10B CLEARLY SAYS THAT APPROVAL BY THE BOARD APPOINTED BY GOVERNMENT OF INDIA UNDER SECTION 14 OF THE INDUSTRIES (DEVELOPMENT & REGULAT ION) ACT, 1951 IS AN ESSENTIAL CONDITION. IN THIS CASE, THOUGH THE ASSESSEE CLAIMS THAT THE APPROVAL INITIALLY GRA NTED BY DEVELOPMENT COMMISSIONER, SPECIAL ECONOMIC ZONE WAS RATIFIED BY THE BOARD, IT IS NOT CLEAR FROM THE MAT ERIAL AVAILABLE ON RECORD WHETHER RATIFICATION WAS ACCORD ED BY THE BOARD CONSTITUTED BY GOVERNMENT OF INDIA UNDER SECTION 14 OF THE INDUSTRIES (DEVELOPMENT & REGULAT ION) ACT, 1951. IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT WHETHER THE APPROVAL WAS ACCORDED BY THE BOARD CONSTITUTED UNDER INDUSTRIES (DEVELOPMENT & REGULAT ION) ACT, 1951, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE MATTER NEEDS TO BE RE-EXAMINED. MOREOVER, SECT ION 10A ALSO GIVES EXEMPTION TO 100% EXPORT ORIENTED UN IT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER IN THE LIGHT OF THE PROVISIONS OF SECTION 1 0A OF THE ACT, IN CASE THE ASSESSEE IS NOT ELIGIBLE UNDER SEC TION 10B OF THE ACT. ACCORDINGLY, THE ORDERS OF THE LOWER A UTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RE-EXAMINE THE ISSUE AFRESH AND FIND OUT WHETHER TH E BOARD CONSTITUTED BY GOVERNMENT OF INDIA UNDER SECT ION 5 ITA NO.707/MDS/2016 14 OF THE INDUSTRIES (DEVELOPMENT & REGULATION) ACT , 1951 HAS APPROVED THE ASSESSEE AS 100% EXPORT ORIENTED U NIT. IN CASE SUCH APPROVAL WAS NOT GRANTED, THE ASSESSIN G OFFICER SHALL ALSO EXAMINE THE CLAIM OF THE ASSESSE E UNDER SECTION 10A OF THE ACT ON MERIT, IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESS EE. 7. FOLLOWING THE ABOVE DECISION, WE HEREBY REMIT T HE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OF FICER TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE DIRECTI ONS RENDERED BY THE TRIBUNAL VIDE ORDER DATED 19.06.2015 CITED SUPRA, AFTER PROVIDING ADEQUATE OF OPPORTUNITY TO THE ASSE SSEE OF BEING HEARD. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 ST AUGUST, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 1 ST AUGUST, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF .
