Vinod Kumar Grover, Pune V. Assistant Commissioner of Income-tax ,

ITA 788/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0316 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AFFORDIN G A PROPER
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Principle of natural justice; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 788 /PN/20 1 4 / ASSESSMENT YEAR: 20 0 9 - 1 0 MR. VINOD KUMAR GROVER, FLAT NO.1, ARIHANT CLASSIC, FLAT NO.1, ARIHANT CLASSIC, NANAK SOCIETY, SALUNKHE VIHAR ROAD, PUNE - 411048 . / APPELLANT PAN: ABMPG3496K VS. THE ASST. COMMISSIONER OF I NCOME TAX, CIRCLE - 5, PUNE . / RESPONDENT / APPELLANT BY : SHRI NILESH KHANDELWAL / RESPOND ENT BY : SHRI ANIL CHAWARE / DATE OF HEARING : 1 4 . 1 2 .201 6 / DATE O F PRONOUNCEMENT: 21 . 1 2 .201 6 / ORDER PER SUSHMA CHOWLA, JM: T H E APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT( A ) - II I, PUNE , DATED 07 . 0 1 .201 4 RELATING TO ASSESSMENT YEAR 20 0 9 - 1 0 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . ITA NO . 788 / PN /201 4 MR. VINOD KUMAR GROVER 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS & SCHEME OF THE ACT IT BE HELD THAT CLAIM UNDER SECTION 10A OF RS.34,13 ,194/ - BE ALLOWED BEING THE INCOME EARNED FROM NEW STPI UNIT ON SATISFACTION OF ALL THE REQUIREMENTS AND THE CONDITIONS OF SECTION 10A OF THE INCOME TAX ACT. THE CLAIM OF THE ASSESSEE BE ALLOWED. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE ISSUE AND THE SAME MAY BE ADJUDICATED BEFORE ADDRESSING THE ISSUE ON MERITS. 4. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS AS UNDE R: - ADDITIONAL GROUND: ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF LAW, IT ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE AND AS PER PROVISIONS OF LAW, IT BE HELD THAT, THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY, WITHOUT GRANTING ANY OPPORTUNITY TO THE APPELLANT TO MEET THE CASE OF THE DEPARTME NT, IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. IT BE HELD THAT THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY IS BAD IN LAW AND BE CANCELLED. IN THE ALTERNATIVE, THE APPELLANT BE GRANTED AN OPPORTUNITY TO MEET THE CASE OF THE DEPARTMENT BY AFFORDIN G A PROPER OPPORTUNITY IN THIS RESPECT. JUST AND PROPER RELIEF BE GRANTED TO THE APPELLANT IN THIS RESPECT. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT ADDITIONAL GROUND OF APPEAL DOES NOT INVOLVE ANY INVESTIGATION INTO THE FA CTS AND HENCE, THE SAME MAY BE ADMITTED FOR ADJUDICATION. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF CIT(A) IN NOT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND DECIDING THE ISSUE O N GROUND WHICH WAS NEITHER RAISED BY THE ASSESSING OFFICE R NOR BY THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS. ITA NO . 788 / PN /201 4 MR. VINOD KUMAR GROVER 3 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDER OF CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT AT RS. 34,13,194/ - . THE ASSESSEE HAD CLAIMED THE SAID DEDUCTION OUT OF GAINS ARISING FROM ITS STPI UNITS. THE ASSESSING OFFICER HAD DENIED THE SAID CLAIM OF ASSESSEE ON THE GROUND THAT THE SAID CONCERN WAS FORMED BY WAY OF RE - CONSTRUCTION OF ERSTWHILE ASSETS WHICH WERE USED BY THE PREVIOUS UNDERTAKING AND HENCE, THE ASSESSEE DID NOT FULFILL THE CONDITIONS LAID DOWN IN SECTION 10A(2)(II) & (III) OF THE ACT. 8 . THE CIT(A) AFTER NOTING THE FACTUAL ASSETS OF THE CASE AND THE STEPS TAKEN 8 . THE CIT(A) AFTER NOTING THE FACTUAL ASSETS OF THE CASE AND THE STEPS TAKEN BY THE ASSESSEE BY WAY OF OPENING THE BANK ACCOUNTS AND TAKING PREMISES ON LEASE, ETC. VIDE PARA 5.5 CAME TO CONCLUSION THAT THE OBSERVATIONS OF ASSESSING OFFICER THAT IT WAS NOT A NEW STPI UNIT HAD NO SUBSTANCE. THE CIT(A) THEREAFTER, CONSIDERED THE DEFINITION OF COMPUTER SOFTWARE AS PER EXPLANATION 2 TO SECTION 10A OF THE ACT AND DECIDED THE ISSUE AGAINST THE ASSESSEE. HOWEVER, THIS ASPECT HAS NOT BEEN CONFRONTED TO THE ASSESSE E DURING THE COURSE OF APPELLATE PROCEEDINGS AND HENCE, THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 9. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS ADMITTED AND I N THE INTEREST OF JUSTICE, WE REMIT THE ISSUE BACK TO THE FILE OF CIT(A ) TO DECIDE DE NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ITA NO . 788 / PN /201 4 MR. VINOD KUMAR GROVER 4 ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS, ALLOWED. THE ISSUE ON MERITS DO NOT SURVIVE AS THE APPEAL IS SET ASIDE TO THE CIT(A). 1 0 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 21 ST DAY OF DECEM BER , 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 21 ST DECEM BER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE C I T (A) - II I , PUNE ; 3. ( ) / THE C I T (A) - II I , PUNE ; 4. / THE C I T - I II, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE