Shri Anil Laul, Faridabad V. ITO, New Delhi

ITA 991/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52512 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 12 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: 01-08-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 22-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: K R MANJANI

Judgement Text

ITA NO. 991/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 991/DEL/2011 A.Y. : 2000-01 ANIL LAUL, PROP. ANANGPUR BUILDING CENTRE, KHERA DHUMASPUR, DISTT. FARIDABAD 121003 (PAN/GIR NO. : AABPL5211H) VS. ITO, WARD 38 (1), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. K.R. MANJANI, ADVOCATE DEPARTMENT BY : DR. B.R.R. KUMAR, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 09.12. 2010 PERTAINING TO ASSESSMENT YEAR 2000-01. 2. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER O F INCOME TAX (APPEALS) HAS ERRED IN DENYING THE RELIEF U/S 80HHF BY WRONGLY TAKING TELEVISION SOFTWARE AS FILMS AND CONSEQUENTLY THEY A RE WRONG IN HOLDING THAT ON ACCOUNT OF THERE BEING NO PERMISSION FROM BOARD OF FILM CERTIFICATION, THE ASSESSEE DOES NOT FULFIL THE NECESSARY CONDITIONS FOR EXEMPTION. 3. IN THIS CASE ASSESSING OFFICER HAS DENIED THE DEDUCTION U/S 80HHF. ITA NO. 991/DEL/2011 2 4. LD. COMMISSIONER OF INCOME TAX (APPEALS) ON THE IS SUE RAISED BY THE ASSESSEE HAS OBSERVED AS UNDER:- 19.6 IN HIS ORDER DATED 31.10.05 FOR A.Y. 1997-98, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS POINTED OUT THAT THE APPELLANT HAD ALSO CLAIMED DEDUCTION U/S. 80 HHF FOR EXPORT OF THE FILM SOFTWARE ETC. THE APPELLANT, HOWEVER, FAILED TO PRODUCE ANY CERTIFICATE FORM THE BOARD OF FILM CERTIFICATION REQUIRED TO CLAIM DEDUCTION UNDER THIS SECTION. SECTION 80HHF STATES AS FOLLOWS: (1) WHERE AN ASSESSEE, BEING AN INDIAN COMPANY [OR A PERSON (OTHER THAN A COMPANY) RESIDENT IN INDIA], IS ENGAGED IN THE BUSINESS OF EXPORT OR TRANSFER BY ANY MEANS OUT OF INDIA, OF ANY FILM SOFTWARE, TELEVISION SOFTWARE, MUSIC SOFTWARE, TELEVISION NEWS SOFTWARE, INCLUDING TELECAST RIGHTS (HEREAFTER IN THIS SECTION REFERRED TO AS THE SOFTWARE OR SOFTWARE RIGHTS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, [A DEDUCTION OF THE PROFITS] DERIVED BY THE ASSESSEE FROM SUCH BUSINESS.. ITA NO. 991/DEL/2011 3 EXPLANATION FOR THE PURPOSES OF THIS SECTION ,. (D) FILM SOFTWARE MEANS A COPY OF CINEMATOGRAPH, FILM MADE BY ANY PROCESS ANALOGOUS TO CINEMATOGRAPHY ON ACETATE POLYESTER OR CELLULOID FILM, POSITIVE, MAGNETIC TAPE, DIGITAL MEDIA OR OTHER OPTICAL OR MAGNETIC DEVICES AND CERTIFIED BY THE BOARD OF FILM CERTIFICATION CONSTITUTED BY THE CENTRAL GOVERNMENT UNDER SECTION 3 OF THE CINEMATOGRAPH ACT, 1952 (37 OF 1952); 19.7 THE APPELLANT HAS FAILED TO REBUT THE ABOVE OBSERVATIONS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT HIS CLAIM FOR DEDUCTION U/S 80HHF IS NOT ALLOWABLE, PARTICULARLY IN VIEW OF THE APPELLANTS FAILURE TO PRODUCE THE REQUIRED CERTIFICATE FROM THE BOARD OF FILM CERTIFICATION. THE APPELLANT HAS NOT BEEN ABLE TO SHOW THAT HE HAS MET ALL THE CONDITIONS LAID DOWN IN SECTION 80HHF. IN HIS APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE ITAT, THE APPELLANT HAS NOT RAISED ANY GROUND OF APPEAL ON THIS ISSUE. IN VIEW OF THE ABOVE, THE DECISION OF THE ASSESSING OFFICER TO REJECT THE CLAIM FOR DEDUCTION U/S 80HHF DOES NOT REQUIRED ANY INTERFERENCE. ITA NO. 991/DEL/2011 4 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. IT IS THE CONTENTION OF THE LD. COUNSEL OF TH E ASSESSEE THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS MADE NO ENQU IRY WITH THE ASSESSEE ON THIS ISSUE. ONLY BY THE APPELLATE ORDER IT HAS COME TO THE NOTICE OF THE ASSESSEE THAT SECTION 80HHF IS BE ING DENIED ON ACCOUNT OF THERE BEING NO PERMISSION FROM BOARD OF FIL M CERTIFICATION. LD. COUNSEL OF THE ASSESSEE CONTENDED THAT THE ASSE SSEE HAS NOT PRODUCED ANY FILM RATHER IT HAS DEALT IN TELEVISION SOFTWARE. HE FURTHER CONTENDED THAT IN CASE OF FILMS ALSO THE PERMISSION I S REQUIRED FOR PUBLIC EXHIBITION, WHILE THE ASSESSEES SOFTWARE IS FOR EDUCATION PURPOSES. IN VIEW OF THE ABOVE SUBMISSIONS, LD. COU NSEL OF THE ASSESSEE CONTENDED THAT THE MATTER MAY BE REMITTED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THESE ASPECTS. 6.1 LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAN D RELIED UPON THE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS). 6.2 WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. IN OUR CONSIDERED OPINION, THE INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER IS REMITTED TO THE FILES OF TH E ASSESSING OFFICER TO CONSIDER THE ISSUE AFRESH. ACCORDINGLY, THE ISSUE STANDS REMITTED TO THE FILES OF THE ASSESSING OFFICER. NEEDLESS TO AD D THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEA RD. ITA NO. 991/DEL/2011 5 7. THE NEXT ISSUE RAISED IS THAT LD. COMMISSIONER O F INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING DISALLOWANCE OF ` 48,225/- FROM POSTAGE, TELEPHONE, ELECTRICITY AND ` 12,780/- FROM POWER RUNNING AND MAINTENANCE EXPENSES. 8. ASSESSING OFFICER IN THIS CASE HAS MADE THE ABOV E DISALLOWANCE HOLDING THAT PERSONAL EXPENDITURE CANNOT BE RULED O UT. 9. ASSESSEE ON THIS ISSUE BEFORE THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) HAS ACCEPTED THAT USAGE FOR PERSONAL PURPOSE CANNOT BE RULED OUT. IT WAS CONTENDED THAT THIS USAGE IS VERY LESS AND THE DISALLOWANCE ON THIS ACCOUNT IS EXCESSIVE. LD. C OMMISSIONER OF INCOME TAX (APPEALS) HAS UPHELD THE ACTION OF THE A SSESSING OFFICER ON THIS ACCOUNT BY OBSERVING THAT ELEMENT OF PERS ONAL USE HAS BEEN ACCEPTED BY THE ASSESSEE ITSELF. 10. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 11. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT AUTHORITIES BELOW HAVE MADE AN ESTIMATE DI SALLOWANCE IN THIS REGARD FOR PERSONAL USAGE. ASSESSEE HAS ALSO ACC EPTED THAT PERSONAL USAGE CANNOT BE RULED OUT. UNDER THE CIRCUMSTANCE S, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE AND HENCE, WE UPHOLD THE S AME. ITA NO. 991/DEL/2011 6 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/8//2011. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 05/8/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES