VNS Makro Technologies Pvt.Ltd, Hyderabad V. DCIT, Cir-3(3), Hyderabad

ITA 870/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53520 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: ANJANEYULU
• Keywords: Application of stay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.870/HYD/2011 : ASSESSMENT YEAR 2006-07 AND S.A.NO.60/HYD/2011 (IN ITA NO.870/HYD/2011) : ASSESSMENT YEAR 2006-07 M/S. VNS MAKRO TECHNOLOGIES PVT. LTD., HYDERABAD ( PAN - AABCV 4969 M ) V/S. DY. COMMISSIONER OF INCOME-TAX CIRCLE 3(3), HYDERABAD (APPLICANT/APPELLANT) (RESPONDENT) APPELLANT /APPLICANT BY : SHRI ANJANEYULU RESPONDENT BY : SMT NIVEDITA BISWAS O R D E R PER G.C.GUPTA, VICE PRESIDENT: THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED UNDER S.263 OF TH E INCOME-TAX ACT, 1961. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION WAS ALLOWABLE UNDER S.10 A OF THE ACT, AS AGAINST THE CLAIM MADE BY IT UNDER S.10B OF THE ACT IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND ACCORDINGLY, THE ORDER OF THE ASSE SSING OFFICER WAS NOT ERRONEOUS OR PREJUDICIAL TO THE INTERESTS OF THE RE VENUE. HE SUBMITTED THAT THERE WAS NO DIFFERENCE BETWEEN THE FORM NO.54F AND 54G AND CLAIM OF EXEMPTION UNDER DIFFERENT SECTIONS IS ONLY A TECHNI CAL BREACH. ITA NO.870/HYD/11 & SA 60/HYD/11 THEREIN M/S. VNS MAKRO TECHJNOLOGIES (P)LTD., HYD 2 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE CONDITIONS FOR ALLOWABILITY OF DEDUCTION UNDER S.10 A AND S.10B ARE DIFFERENT, AND THEREFORE, THE ORDER OF THE ASSESSING OFFICER W AS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HE REL IED ON THE ORDER OF THE COMMISSIONER OF INCOME-TAX. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED UNDE R S.263 OF THE ACT. WE FIND THAT THE ASSESSEE HAS CLAIMED DEDUCTION UND ER S.10B OF THE ACT, WHICH WAS ALLOWED BY THE ASSESSING OFFICER WITHOUT MAKING FURTHER ENQUIRIES WITH REGARD TO ALLOWABILITY THEREOF. ACCORDINGLY, T HE ORDER OF THE ASSESSING OFFICER COULD BE INTERFERED WITH BY THE COMMISSIONE R OF INCOME-TAX UNDER S.263 OF THE ACT. HOWEVER, THE COMMISSIONER OF INC OME-TAX SHOULD HAVE REMANDED THE MATTER TO THE FILE OF THE ASSESSING OF FICER WITH A DIRECTION TO CONSIDER THE CLAIM OF THE ASSESSEE THAT THERE WAS N O DIFFERENCE BETWEEN S.10A OR S.10B AND THE DEDUCTION UNDER S.10A WAS AL LOWABLE TO THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECO RD. IN THESE FACTS OF THE CASE, WE HOLD THAT IT SHALL BE JUSTIFIED TO MODIFY THE ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED UNDER S.263 TO TH E EFFECT THAT THE ASSESSMENT IS SET ASIDE TO THE FILE OF THE ASSESSI NG OFFICER WITH A DIRECTION TO REFRAME THE ASSESSMENT DE NOVO IN ACCORDANCE WITH LAW AND TO ADJUDICATE THE ISSUE OF DEDUCTION ALLOWABLE TO THE ASSESSEE, A FTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND THE ASSE SSEE SHALL BE AT LIBERTY TO CLAIM DEDUCTION UNDER SOME OTHER PROVISION OF LA W, WHICH SHALL BE DECIDED BY THE ASSESSING OFFICER ON MERITS THEREOF. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.870/HYD/11 & SA 60/HYD/11 THEREIN M/S. VNS MAKRO TECHJNOLOGIES (P)LTD., HYD 3 6. SINCE THE VERY APPEAL OF THE ASSESSEE IS DISPOS ED OFF IN THE FOREGOING PARAS OF THIS ORDER, THE STAY APPLICATION OF THE ASSESSEE HAS BECOME INFRUCTUOUS WE DIRECT ACCORDINGLY. ORDER PRONOUNCED IN THE COURT ON 5.8.2011 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DTT/- 5 TH AUGUST, 2011 COPY FORWARDED TO: 1. M/S. VNS MAKRO TECHNOLOGIES PVT. LTD., C/O. M/S. ANJANEYULU & CO., CHARTERED ACCOUNTANTS, 30,L BHAGYALAKSHMI NA GAR, GANDHI NAGAR HYDERABAD 500 080 2. DY. COMMISSIONER OF INCOME - TAX, CIRCLE 3 ( 3 ), HYDERABAD 3. COMMISSIONER OF INCOME-TAX III, HYDERABAD 4. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.