THE ITO 9(3)(3), MUMBAI V. M/S. TRIGENT SOFTWARE LTD, MUMBAI

ITA 7302/MUM/2007

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3471 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 09-11-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 07-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: D V LAKHANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J : MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA. NO. 7302/MUM/2007 ASSESSMENT YEAR 2002-2003 ITO 9 (3) (3) MUMBAI 20 VS. M/S. TRIGENT SOFTWARE LTD. MUMBAI 54. PAN AABCV1255G (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI LAL CHAND, DR FOR RESPONDENT : SHRI D.V. LAKHANI ORDER PER D. MANMOHAN, V.P. 1. THIS APPEAL IS FILED AT THE INSTANCE OF THE REV ENUE UNDER THE SIGNATURE OF INCOME TAX OFFICER 9 (3) (3), MUMB AI. 2. BRIEF FACTS ARE SET OUT TO UNDERSTAND THE DEFEC T IN THE APPEAL FILED BY THE REVENUE. IN RESPECT OF THE ASSE SSMENT YEAR 2002- 2003 THE LEARNED CIT(A)-IX, MUMBAI PARTLY ALLOWED T HE APPEAL OF THE ASSESSEE VIDE HIS ORDER DATED 11-8-2006 WHICH WAS R ECEIVED IN THE OFFICE OF COMMISSIONER OF INCOME TAX ON 12 TH DECEMBER, 2006. AGGRIEVED BY THE SAID ORDER, THE REVENUE PREFERRED AN APPEAL DATED 10/11/2006 (REGISTERED AS ITA. NO. 5923/MUM/2006) W HEREIN THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO INCLUDE INCOME ON FOREIGN EXCHANGE FLUCTUATION OF RS.33,11,978/- WHILE COMPUTING THE PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 10A AND HAS FAILED TO APPRE CIATE THAT THE AMOUNT RECEIVED ON ACCOUNT OF FOREIGN EXCH ANGE FLUCTUATION IS NOT ACTUALLY DERIVED FROM THE ELIGIB LE BUSINESS OF THE INDUSTRIAL UNDERTAKING. 2 2. THIS APPEAL WAS DISPOSED OF ALONG WITH ANOTHER APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2000-2 001 IN ITA. NOS. 5922 AND 5933/MUM/2006 AND C.O.51/MUM/2007. THEREAF TER, IT APPEARS THAT THE FIRST APPELLATE AUTHORITY HAS DISP OSED OF THE APPEAL FILED BY THE ASSESSEE IN RESPECT OF THE ASSESSMENT YEAR 2003-2004 GRANTING CERTAIN RELIEFS AND THE REVENUE WAS AGGRIE VED BY THE SAID ORDER. ACCORDINGLY, CLEARANCE WAS OBTAINED FROM THE COMMISSIONER OF INCOME TAX-IX, MUMBAI, VIDE AUTHORISATION MEMO DATE D 4-1-2007, TO PREFER AN APPEAL AGAINST THE ORDER OF THE CIT(A) DA TED 12-9-2007 IN RESPECT OF ASSESSMENT YEAR 2003-2004. HOWEVER, THE APPELLANT HEREIN HAS WRONGLY TYPED IT AS APPEAL FOR THE ASSESSMENT Y EAR 2002-2003 AND INCORPORATED THE GROUNDS RELEVANT FOR THE ASSES SMENT YEAR 2003- 2004 AND FILED AN APPEAL WHEREIN REVENUE HAS SHOWN THAT THE APPEAL WAS FILED IN RESPECT OF THE ASSESSMENT YEAR 2002-20 03(SERIAL NOS. 3, 4 AND 5 OF FORM NO. 36) AND ANNEXED THE ORDERS OF THE ASSESSING OFFICER AS WELL AS THE CIT(A) IN RESPECT OF THE ASSESSMENT YEAR 2002-2003 AND ACCORDINGLY THIS APPEAL WAS NUMBERED AS ITA. NO. 73 02/MUM/2007. 3. WHEN THE APPEAL HAS COME UP FOR HEARING, IT WAS BROUGHT TO THE NOTICE OF THE LEARNED DR THAT THE GROUNDS UR GED BEFORE US DO NOT ARISE OUT OF THE ORDER OF THE CIT(A) ANNEXED HE REIN. IT APPEARS THAT THE REVENUE HAS MISSED THE BUS AND IN A CASUAL AND ROUTINE MANNER FAILED TO FILE AN APPEAL IN RESPECT OF THE ASSESSME NT YEAR 2003-2004 AND EVEN WITHOUT VERIFYING THE FACT THAT AN APPEAL WAS ALREADY FILED FOR THE ASSESSMENT YEAR 2002-2003 THE APPELLANT HAS FIL ED ANOTHER APPEAL WITHOUT AN AUTHORISATION FROM THE COMMISSIONER IN T HIS REGARD (AS COULD BE SEEN FROM THE FACT THAT THE AUTHORISATION MEMO FOR THE ASSESSMENT YEAR 2003-2004 WAS ANNEXED TO THE APPEAL PAPERS). UNDER THESE CIRCUMSTANCES, WE HAVE NO OTHER ALTERNA TIVE EXCEPT TO DISMISS THE APPEAL FILED BY THE REVENUE, SINCE THE APPEAL FILED FOR THE ASSESSMENT YEAR 2002-2003 WAS ALREADY DISPOSED OF B Y THE TRIBUNAL AND HENCE, THIS AMOUNTS TO FILING A DUPLICATE APPEA L. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. 3 ITA. NO. 7302/MUM/2007 M/S. TRIGENT SOFTWARE LTD. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF DECEMBER, 2010. SD/- SD/- (R.K. PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 23 RD DECEMBER, 2010 VBP/- COPY TO 1. INCOME TAX OFFICER 9 (3) (3), ROOM NO. 227, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 20. 2. M/S. TRIGENT SOFTWARE LTD. 201, SAINARE NORTH AVENU E, LINKING ROAD, SANTACRUZ (W), MUMBAI 54. PAN AABCV1255G. 3. CIT(A)-IX, MUMBAI 4. CIT-IX, MUMBAI 5. DR J BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.