I.T.O. 9(2)(3), MUMBAI V. MWH INDIA PVT. LTD., MUMBAI

ITA 7270/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8719 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAVIN KUMAR
• Assessee Lawyers: MISHANT THAKKAR
• Keywords: Opportunity of being heard
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI B. R. MITTAL, JM AND SHRI B. R. JAIN, A M ITA NO.7270/MUM/2011 ASSESSMENT YEAR: 2007 -08 I.T.O. - 9(2)(3), ROOM NO. 225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. VS. M /S. MWH INDIA PVT. LTD. 168, UDYOG BHAVAN, SONAWALA ROAD, GOREGAON (E), MUMBAI 400 063. PAN NO : AAACA 4613 L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAVIN KUMAR RESPONDENT BY : SHRI MISHANT THAKKAR DATE OF HEARING : 0 3 .10.2012 DATE OF PRONOUN CEMENT : 12.10.2012 ORDER PER B. R. JAIN, A.M. : THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 30.08.2011 OF LD. CIT(A)-20, MUMBAI RAISES THE FOLLOWING GROUNDS IN APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WHILE GIVING RELIEF U/S.10A, NO T CONSIDERED THE FACTS THAT ASSESSEE COMPANY BEING A 100% EXPORT ORIENTED UNIT, IS ELIGIBLE FOR DEDUCTION U/S. 10B OF THE I.T . ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS NOT CONSIDERED THE RESTRICT ION OF DEDUCTION U/S.10B OF THE I.T. ACT AS WORKED OUT BY ASSESSING OFFICER. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFI CER BE RESTORED. ITA NO : 7270/MUM/2011 M/S. MWH INDIA PVT. LTD. 2 2. BRIEFLY THE FACTS ARE THAT THE ASSESSEE CLAIMED DEDUCTION U/S.10A OF THE INCOME TAX ACT, 1961 FOR `. 6,65,18,513/- IN RESPECT OF THE PROFIT FROM ITS PUNE UNIT. THE AUDIT REPORT IN FORM NO.56F WAS ALSO ON RECORD OF THE ASSESSING AUTHORITY. THE ASSESSING OFFICER, HOWEVE R, ALLOWED DEDUCTION OF AN AMOUNT OF `. 2,02,03,742/- U/S. 10B OF THE ACT. AGGRIEVED WITH THE SHORT DEDUCTION BY THE ASSESSING OFFICER, THE ASSES SEE WENT IN APPEAL BEFORE THE LD. CIT(A)-20, MUMBAI, WHO UPON PERUSAL OF THE ASSESSMENT ORDER AND THE WRITTEN SUBMISSIONS MADE BEFORE HIM B Y THE ASSESSEE FOUND THAT THE ASSESSING OFFICER HAS RESTRICTED THE DISALLOWANCE TO `. 2,02,03,742/- WITHOUT GIVING ANY REASON WHATSOEVER IN THE IMPUGNED ORDER. SINCE THE ASSESSING OFFICER HAS MENTIONED S ECTION 10B AGAINST THE CLAIM OF DEDUCTION U/S.10A OF THE ACT, HE TOOK SUCH ACT AS AN ACT OF ARBITRARINESS AND LACK OF APPLICATION OF MIND. THE ASSESSEES APPEAL ON THIS POINT STOOD ALLOWED. 3. HEARD PARTIES WITH REFERENCE TO THE MATERIAL ON RECORD. THE ORDERS OF THE AUTHORITIES BELOW HAVE ALSO BEEN PERUSED CAR EFULLY. NONE OF THE AUTHORITIES BELOW ARE SHOWN TO HAVE EXAMINED AS TO HOW MUCH IS THE DEDUCTION FACTUALLY AVAILABLE AS AGAINST THE ASSESS EES CLAIM OF `. 6,65,18,513/- EVEN THOUGH APPARENTLY THE ASSESSEE A LSO HAS INCOME UNDER THE HEAD OTHER SOURCES. THE LD. CIT(A) WAS DUTY BOUND TO HAVE EXERCISED HIS CO-TERMINUS POWERS AND FOUND OUT HIMS ELF AS TO HOW MUCH DEDUCTION ACTUALLY IS AVAILABLE TO THE ASSESSEE IN THE EVENT WHEN THE ITA NO : 7270/MUM/2011 M/S. MWH INDIA PVT. LTD. 3 ASSESSING AUTHORITY DID NOT ASSIGN ANY REASON FOR R ESTRICTING THE DEDUCTION TO `. 2,02,03,742/-. THIS HAVING NOT BEEN DONE AND THERE BEING A PROCEDURAL DEFECT FLOWING IN DECISION OF THE AUTH ORITIES BELOW, WE CONSIDER IT APPROPRIATE TO SET ASIDE THE ORDER AND REMIT THE MATTER BACK TO THE ASSESSING OFFICER SO THAT A SPEAKING ORDER IS P ASSED AFRESH AND DECISION TAKEN IN ACCORDANCE WITH LAW AFTER PROVIDI NG REASONABLE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 4. IN THE RESULT, THE REVENUES APPEAL STANDS ALLOW ED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.2012. SD/ - SD/ - ( B. R. MITTAL ) ( B. R. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT:12.10.2012 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI