HANDY WATERBASE INDIA PRIVATE LIMITED, CHENNAI V. ACIT CORPORATE CIRCLE 2 (2), CHENNAI

MA 28/CHNY/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4958 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 02-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 10B

Judgement Text

Miscellaneous Application Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) िनधा रण वष /Assessment Years: 2009-10 & 2011-12 M/s.Handy Waterbase- India Pvt. Ltd., No.37, Montieth Road, Egmore, Chennai. v. The Dy. Commissioner- of Income Tax, Company Circle-II(2), Chennai. [PAN: AABCH 0440 B] (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/ Appellant by : Mr.T.Banusekar, CA यथ क ओर से /Respondent by : Mr.P.Sajit Kumar, JCIT सुनवाई क तारीख/Date of Hearing : 18.03.2022 घोषणा क तारीख /Date of Pronouncement : 18.03.2022 आदेश / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Applications against the consolidated order of the Tribunal in ITA No.422/Chny/2020 & in ITA No.1228/Chny/2018 both dated 21.04.2021 relevant to assessment years 2009-10 & 2011-12. 2. The assessee narrated facts and mistakes stated to be apparent on record from the order of the Tribunal dated 21.04.2021 and relevant contents of Miscellaneous Application filed by the assessee for the AY 2009- 10, are reproduced as under: आयकर अपीलीय अिधकरण, ‘बी’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH: CHENNAI ी वी. दुगा राव, माननीय ाियक सद एवं ी जी. मंजूनाथा, माननीय लेखा सद के सम BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER MA Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) :: 2 :: The following errors are apparent from the consolidated order of the Hon'ble Income Tax Appellate Tribunal in ITA No.422 / CHNY / 2020 for assessment year 2009-10. 1. The petitioner had filed appeals before the Hon'ble Income Tax Appellate Tribunal for assessment years 2009-10, 2010-11 and 2011-12 and all the appeals were taken up for hearing together on 01.04.2021. 2. It can be seen that in the order passed by the Hon'ble Income Tax Appellate Tribunal at Para 2 of Page 2, it has been stated as follows: "2. The assessee has more or less raised common grounds of appeal for all assessment years. Therefore, for the sake of brevity, grounds of appeal filed for assessment year 2010-11 in ITA No.672/Chny/2018 are reproduced as under:- .................’ (Emphasis supplied) 3. Further, it can be seen that in the said order of the Hon'ble Income Tax Appellate Tribunal at Para 14 of Page 29 and Para 15 of Page 30 respectively, it has been stated as follows: "14. In this case, on perusal of facts available on record, we find that there is no change in facts prevailing at the time when deduction was allowed to the assessee in the assessment year 2004-05 and in the assessment year 2009-10 when deduction was denied. Therefore, we are of the considered view that unless there is change in facts, the AO cannot take a different view for denying deduction claimed u/s. 10B of the Act. Hence, we are of the considered view that the assessee is entitled for deduction u/s. 10B of the Act in respect of profit derived from 100% export oriented undertakings and accordingly, direct the AO to allow benefit of deduction. 15. In the result, appeal filed by the assessee for assessment year 2010-11 is allowed." 4. In this connection, it is submitted that since the petitioner had raised common grounds on the issue of claim of deduction u/s. 10B for all three assessment years, i.e., assessment years 2009-10, 2010-11 and 2011-12, the Hon'ble Income Tax Appellate Tribunal for the sake of brevity had reproduced grounds of assessment year 2010-11 for adjudicating the said issue. However, while rendering its decision in respect of the issue relating to claim of deduction u/s. 10B, the Hon'ble Income Tax Appellate Tribunal concluded by mentioning that the said issue was allowed for assessment year 2010-11 while a similar direction is not found in the order of the Hon'ble Income Tax Appellate Tribunal for the same issue for assessment years 2009-10. 5. Since the above mentioned error is apparent on record, it is most humbly prayed that the Hon'ble Income Tax Appellate Tribunal may be pleased to rectify the same arising from the order of the Hon'ble Income Tax Appellate Tribunal in ITA No.422 / CHNY / 2020 for the assessment year 2009-10, dated 21.04.2021. 3. The Ld.AR for the assessee referring to Miscellaneous Application filed by the assessee submitted that the assessee has challenged denial of deduction claimed u/s.10B of the Act for the AYs 2009-10 to 2011-12. However, the Tribunal while deciding the issue has taken up the appeal MA Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) :: 3 :: filed by the assessee for the AY 2010-11 as lead year and concluded that the assessee is entitled for deduction u/s.10B of the Act. However, there is no finding on the issue for the AYs 2009-10 to 2011-12, even though, the assessee has challenged very same issue assessment years 2009-10 & 2011-12. Therefore, he submitted that said mistake constitutes a mistake apparent on record which can be rectified u/s.254(2) of the Act. He further referring to Miscellaneous Application filed for the AY 2011-12 submitted that for the AY 2011-12, the AO has denied deduction u/s.10B of the Act on two grounds. The first ground of denial of deduction is that assessee is not a manufacturer and the said observations have been addressed by the Tribunal. However, the AO has denied deduction u/s.10B of the Act on the second ground that the assessee did not submit approval by the Board of Approval for EOU Scheme. The assessee has challenged said findings in light of evidences, including approval granted to the assessee by the Board of Approval for EOU Scheme and subsequent ratification by the Board of Approval for EOU Scheme, but the Tribunal has failed to adjudicate Ground Nos.9-11, which constitutes mistake apparent on record which can be rectified u/s.254(2) of the Act. 4. The Ld.DR, on the other hand, fairly agreed that the Tribunal while concluding its findings on the issue of deduction u/s.10B of the Act, has inadvertently mentioned that the assessee is entitled for deduction u/s.10B of the Act for the AY 2010-11. However, in respect of AYs 2009-10 & 2011- MA Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) :: 4 :: 12, there is no findings from the Tribunal. As regards, the second objection of the assessee on the issue of Ground Nos.9-11, he fairly agreed that even though, the assessee has taken grounds on the second objection of the AO for denying deduction u/s.10B of the Act, but there are no findings from the Tribunal on the second issue. Therefore, the Miscellaneous Application filed by the assessee may be decided on merits. 5. We have heard both the parties and considered Miscellaneous Application filed by the assessee for the AYs 2009-10 & 2011-12. We find that the Tribunal has disposed off appeal filed by the assessee for the AYs 2009-10 to 2011-12, on the basis of facts and grounds from the AY 2009- 10 and concluded that the assessee is entitled for deduction u/s.10B of the Act for the AY 2010-11, but did not give any findings for the AYs 2009-10 to 2011-12. We find that although, the facts are identical and issues are common for all three years, but by inadvertent mistake, Tribunal failed to give any findings for the AYs 2009-10 & 2011-12. Therefore, we are of the considered view that said mistake constitutes a mistake apparent on record which can be rectified u/s.254(2) of the Act. Therefore, Miscellaneous Application filed by the assessee for the AY 2009-10 is allowed on the issue and direct the AO to allow deduction u/s.10B of the Act for the AY 2009-10 in light of our findings given in the appellate order for the AY 2010-11. 6. Coming to the AY 2011-12, in addition to the first objection of the assessee with regard to no findings on the eligibility of the assessee for MA Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) :: 5 :: deduction u/s.10B of the Act, the assessee had also taken Ground Nos.9- 11 on the second objection of the AO in denial of deduction u/s.10B of the Act. The AO denied deduction u/s.10B of the Act on the second ground that the assessee could not file ratification by the Board of Approval for EOU Scheme, for approval given to the assessee for the relevant AY. During the course of hearing, Ld.Counsel for the assessee has referred the ratification order passed by the Board of Approval for EOU Scheme and contended that the assessee has furnished the ratification approval by the Board of Approval for EOU Scheme. However, the Tribunal does not give any findings on the issue. Therefore, we are of the considered view that said findings of the Tribunal constitute a mistake apparent on record, which can be rectified u/s.254(2) of the Act. Thus, we entertain the Miscellaneous Application filed by the assessee for the AY 2011-12 on the Ground Nos.9- 11 and modify our findings given in the order in respect of entitlement of the assessee for deduction u/s.10B of the Act. In our considered view, the assessee had also complied with the conditions prescribed for deduction u/s.10B of the Act, even on the issue of approval from the Board of Approval for EOU Scheme, which is evident from the fact that the assessee has filed an approval letter from the Development Commissioner, Ministry of Commerce & Industry, Government of India under MEPZ Special Economic Zone & HEOUs in Tamil Nadu, Pondicherry, Andaman & Nicobar Island, vide letter dated 30.08.2013 and as per the said letter, the approval has been extended up to 27.07.2012, which covers the impugned assessment years. MA Nos.27 & 28/Chny/2021 (in ITA No.422/Chny/2020 & ITA No.1228/Chny/2018) :: 6 :: Therefore, we are of the considered view that the assessee is eligible for deduction u/s.10B of the Act, even as a manufacturer of goods or articles and further the assessee has satisfied the conditions prescribed for deduction and thus, we are of the considered view that the AO is erred in denial of deduction u/s.10B of the Act, for the AY 2011-12. Hence, we direct the AO to allow deduction claimed u/s.10B of the Act, for the AY 2011-12. 7. In the result, the Miscellaneous Applications filed by the assessee for the AYs 2009-10 & 2011-12 are allowed in terms of our observations hereinabove. Order pronounced on the 18 th day of March, 2022, in Chennai. Sd/- (वी. दुगा राव) (V. DURGA RAO) याियक सद य/JUDICIAL MEMBER Sd/- (जी. मंजूनाथा) (G. MANJUNATHA) लेखा सद य/ACCOUNTANT MEMBER चे ई/Chennai, दनांक/Dated: 18 th March, 2022. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 4. आयकर आयु"/CIT 2. यथ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकर आयु" (अपील)/CIT(A) 6. गाड फाईल/GF