Clarion Technologies Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax, Circle -1(1), Pune

MA 15/PUN/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6671 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 26-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: V K SHRIDHAR

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / MA NO.15/PUN/2018 (ARISING OUT OF ITA NO.510/PUN/2015) / ASSESSMENT YEAR : 2011-12 CLARION TECHNOLOGIES PVT. LTD., 4 TH FLOOR, TOWER S-4, CYBERCITY, MAGARPATTA, HADAPSAR, PUNE 411 028 . / APPLICANT V/S DCIT, CIRCLE - 1(1),PUNE . / RESPONDENT / APPLICANT BY : SHRI V.K. SHRIDHAR / RESPONDENT BY : S SHRI MUKESH JHA, JCIT / ORDER PER KARUNAKARA RAO, AM : THE CAPTIONED MISCELLANEOUS APPLICATIONS FILED BY T HE ASSESSEE ARISES FROM THE ORDER OF TRIBUNAL DATED 07-06-2017 VIDE IT A NO.510 /PUN/2015 PARTLY ALLOWING THE APPEAL OF THE ASSESSEE FOR STAT ISTICAL PURPOSES. 2. BRIEF FACTS OF THIS APPEAL INCLUDE THAT THE ASSE SSEE CLAIMED DEDUCTION U/S.10B OF THE ACT. IN THE ASSESSMENT PROCEEDINGS, AO DISALLOWED THE SAID CLAIM FOR FAILURE TO FULFIL THE CONDITIONS SPECIFIE D IN THE SAID SECTION. IN THE FIRST APPELLATE PROCEEDINGS, IN RESPONSE TO THE AL TERNATE CLAIM OF DEDUCTION, CIT(A) ALLOWED THE ALTERNATE CLAIM OF DEDUCTION U/S .10A OF THE ACT AND CONFIRMED THE AOS DECISION IN REJECTING THE CLAIM OF DEDUCTION U/S.10B OF THE / DATE OF HEARING :04.05.2018 / DATE OF PRONOUNCEMENT: 09.05.2018 2 ACT. AGGRIEVED WITH THE SAME, ASSESSEE FILED AN A PPEAL BEFORE THE TRIBUNAL RAISING VARIOUS GROUNDS THAT REVOLVED AROUND THE CL AIM OF DEDUCTION U/S.10B OF THE ACT. ON FINDING THAT THE ORDER PASSED BY TH E CIT(A) DOES NOT CONSTITUTE A SPEAKING ORDER ON VARIOUS ISSUES AND A RGUMENTS RAISED BY THE ASSESSEE IN THE GROUNDS, THE APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED FOR STATISTICAL PURPOSES. IN THE PROCESS, THE ABSENCE OF ANY REFERENCE/GROUND WITH REGARD TO ALTERNATE CLAIM OF DEDUCTION U/S.10A OF THE ACT WAS MENTIONED TO IN PARA NO.10 OF THE ORDER OF THE TRIBUNAL ITA NO.510/PUN/2015. 3. AGGRIEVED WITH THE ABOVE REFERENCE TO THE ABSENC E OF GROUND RELATING TO ALTERNATE CLAIM OF DEDUCTION U/S.10A OF THE ACT WHICH WAS ALLOWED BY THE CIT(A), ASSESSEE FILED THE PRESENT MISCELLANEOUS AP PLICATION AND SEEKS EXPUNGING OF THE SAID REFERENCE TO ALTERNATE CLAIM OF DEDUCTION U/S.10A OF THE ACT FROM PARA NO.10 OF THE ORDER OF THE TRIBUNA L. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ORDER OF THE TRIBUNAL WAS PASSED IN CONNECTION WITH THE APPEAL O F THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE IS UNAWARE OF THE EXIST ENCE OF THE APPEAL OF THE REVENUE AT THAT POINT OF TIME AS IT DID NOT RECEIVE THE COPY OF APPEAL MEMO, TO WHICH HE IS DULY ENTITLED. FURTHER, REFERRING TO THE FATE OF THE SAID APPEAL OF THE REVENUE, LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE REVENUE FILED THE APPEAL IN CONNECTION WITH ALLOWING OF THE ALTERNATE CLAIM OF DEDUCTION U/S.10A OF THE ACT AND THE SAID APPEAL OF THE REVENUE WAS ALLOWED BY THE TRIBUNAL REFERRING TO THE AFOREMENTIONED LIN E IN PARA NO.10 OF THE ORDER OF TRIBUNAL (SUPRA). AS A RESULT, THE CLAIM OF DEDUCTION U/S.10A OF THE ACT WHICH WAS ALLOWED BY THE CIT(A) STANDS WITHDRAW N BY THE ORDER OF THE TRIBUNAL IN ITA NO.1646/PUN/2015, DATED 20-09-2017. THUS, IT IS A CASE WHERE THERE WERE CROSS APPEALS FOR THE A.Y. 2011-12 AND THE ASSESSEE IS LEFT 3 NO FAVOURABLE DECISION IN HIS FAVOUR EITHER U/S.10A OR U/S.10B OF THE ACT. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEALS WERE INDEPENDENTLY HEARD AND DISPOSED OF ON DIFFERENT DA TES. AS PER THE ASSESSEES COUNSEL, LACK OF COMMUNICATION RESULTED IN THE DISPOSAL OF THE SAME INDEPENDENTLY. THUS, NARRATING THE ABOVE FACT S, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, AS ON DATE, THE ASSESSEE I S LEFT WITH DENIAL OF DEDUCTION BOTH U/S.10A AS WELL AS U/S.10B OF THE AC T. 5. COMING TO THE PRESENT MISCELLANEOUS APPLICATION FILED IN CONNECTION WITH THE ASSESSEES APPEAL ITA NO.510/PUN/2015, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUNDS AND M ENTIONED THAT ALL OF THEM REVOLVES AROUND THE CLAIM OF DEDUCTION U/S.10B OF THE ACT, THE CLAIM MADE BY THE ASSESSEE ORIGINALLY IN THE RETURN OF IN COME. THERE IS ABSOLUTELY NO REFERENCE TO THE ALTERNATE GROUND U/S.10A OF THE ACT AND THERE IS NO NEED FOR ASSESSEE TO RAISE THE SAME. MAKING SPECIAL REF ERENCE TO PARA NO.10 OF THE ORDER OF THE TRIBUNAL, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LAST SENTENCE OF PARA NO.10, I.E. AS SUCH, THERE IS NO CLEAR GROUND WITH REGARD TO THE ALTERNATIVE CLAIM OF DEDUCTION U/S.10A OF THE A CT. NEEDS TO BE DELETED AS THERE IS NO NEED FOR SUCH A REFERENCE IN THIS ORDER . HE SUBMITTED THAT ALTERNATIVE CLAIM OF DEDUCTION U/S.10A OF THE ACT W AS THE SUBJECT MATTER BEFORE THE CIT(A) WHO ALLOWED THE CLAIM OF THE ASSE SSEE AND HENCE NO GROUND IN THIS GROUND WAS WARRANTED. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUBMIT TED THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL AND THE DELETION OF SUCH SENTENCE AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE IS AL SO UNCALLED FOR. LD. DR STATED THAT THE SAID DELETION WILL NOT ALTER THE DE CISION OF THE TRIBUNAL SO FAR AS RESTORING THE ISSUE TO THE FILE OF CIT(A) FOR WA NT OF A SPEAKING ORDER IS 4 CONCERNED. HE SUBMITTED THAT THE MISCELLANEOUS APP LICATION FOR DELETION OF THE LAST SENTENCE OF PARA NO.10 OF THE ORDER OF THE TRIBUNAL IS INFRUCTUOUS AS THE SAME IS NOT GOING TO EFFECT THE FINDING OF THE TRIBUNAL ON THE ISSUE. LD. DR ALSO SUBMITTED THAT ASSESSEE CANNOT ARGUE THAT T HE ALLOWABILITY OF ALTERNATE CLAIM OF DEDUCTION U/S.10A HAS ATTAINED F INALITY WITH THE FAVOURABLE DECISION AT THE LEVEL OF THE CIT(A). LD. COUNSEL F OR THE ASSESSEE SHOULD HAVE INFORMED THE TRIBUNAL ABOUT THE LIKELY EXISTENCE OF THE APPEAL BY THE REVENUE. LD. DR FOR THE REVENUE ALSO SUBMITTED THAT REVENUE ALSO FILED A MISCELLANEOUS APPLICATION BEFORE THE TRIBUNAL ON 26 -12-2017 AND THE SAME IS YET TO BE GIVEN IN THE APPEAL BY THE REGISTRY. 7. WE HEARD BOTH THE SIDES ON THIS LIMITED ISSUE OF REQUIREMENT OF DELETION OF THE SAID LAST SENTENCE OF PARA NO.10 OF THE ORDER OF THE TRIBUNAL IN THE ASSESSEES APPEAL ITA NO.510/PUN/2015. IT IS UNDISPUTED FACT THAT THE GROUNDS RAISED BY THE ASSESSEE REVOLVES AROUND THE ABSENCE OF GROUND ON THE CLAIM OF DEDUCTION U/S.10A OF THE ACT. IT IS A LSO UNDISPUTED FACT THAT THE ASSESSEE RAISED THIS ALTERNATE CLAIM OF DEDUCTION U /S.10A OF THE ACT BEFORE THE CIT(A) WHO EVENTUALLY ALLOWED THE SAME REJECTIN G THE ASSESSEES ORIGINAL CLAIM OF DEDUCTION U/S.10B OF THE ACT. FURTHER, WE FIND THE ASSESSEE IS NOT LEGALLY CORRECT IN STATING THAT THERE IS NO NEED FO R REFERRING TO THE ALTERNATIVE CLAIM ISSUE U/S.10A OF THE ACT AS THE DECISION OF T HE CIT(A) IS NOT FINAL LEGALLY. ASSESSEE SHOULD HAVE REASONABLY ANTICIPATED THE EXI STENCE OF THE APPEAL BY THE REVENUE WHEN THE ALTERNATIVE CLAIM IS ALLOWED A ND AGAINST THE REVENUE. CONSIDERING THE SAME, WE ARE OF THE VIEW THAT LD. C OUNSEL FOR THE ASSESSEE FAILED IN NOT MAKING MENTION TO THE LIKELY EXISTENC E OF APPEAL BY THE REVENUE. COMING TO THE EXPUNGING OF THE LAST LINE PARA NO.10 OF OUR ORDER, WE FIND THAT 5 IT IS A FACT THAT THERE IS NO GROUND AT ALL ON THE CLAIM U/S.10A OF THE ACT. THUS, WHILE MAKING A MENTION ABOUT THE ALTERNATE CL AIM, WE FIND THERE IS AN EXPRESSION OF WORD CLEAR ERRONEOUSLY ENTERED INTO THE SAID SENTENCE AND THE SAME SHOULD CONSTITUTE A MISTAKE APPARENT FROM THE RECORD. THEREFORE, WE ARE OF THE OPINION THAT THE WORD CLEAR APPEARING IN THE LAST SENTENCE OF PARA NO.10 OF THE ORDER OF TRIBUNAL SHOULD BE DELETED. AO IS DIRECTED ACCORDINGLY. ACCORDINGLY, THE MISCELLANEOUS APPLIC ATION FILED BY THE ASSESSEE IS DISPOSED PRO TANTO. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 09 TH DAY OF MAY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 09 TH MAY, 2018 / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. CIT(A)-I, PUNE CIT-I, PUNE % , , BENCH PUNE; 6. / GUARD FILE.