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

MA 44/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6764 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-11-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 26-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: V K SRIDHAR
• Keywords: Reasonable cause
• Section: 10B; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 4 4 /P U N/201 8 ARISING OUT OF ITA NO. 1 646 /P U N/201 5 ASSESSMENT YEAR : 20 11 - 12 CLARION TECHNOLOGIES PVT. LTD., 4 TH FLOOR, TOWER S - 4, CYBERCITY, MAGARPATTA, HADAPSAR, PUNE 411028 . APP LICANT PAN: AABCC8321Q VS. THE DY. COMMISSIONER OF INCOME TAX, C IRCLE 1(1), PUNE . RESPONDENT APPLICANT BY : SHRI V.K. SRIDHAR RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 0 2 . 1 1 .201 8 / DATE OF PRONOUNCEMENT: 2 1 . 0 1 .201 9 / ORDER PER SUSHMA CHOWLA, JM : TH E PRESENT MISCELLANEOUS APPLICATION FILED BY THE RESPONDENT - APPLICANT IS AGAINST THE ORDER OF TRIBUNAL DATE D 20.09.2017. 2. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE RESPONDENT APPLICANT POINTING OUT THAT HE WAS PREVENTED BY REASONABLE CAUSE FROM NON APPEARANCE ON 11.09.2017. THE RESPONDENT - APPLICANT IS FURTHER AGGRIEVED BY THE ORDER PASSE D BY THE TRIBUNAL AND HAS PROPOSED THAT UNDER RULE 25 OF INCOME TAX (APPELLATE TRIBUNAL) RULES , 1963, THE TRIBUNAL HAS POWER TO RECALL ITS ORDER AND HEAR 2 M A NO. 44 /P U N/201 8 THE RESPONDENT - APPLICANT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT REFERRED TO THE AFF IDAVIT FILED THAT ON THE FIRST DATE OF HEARING, WHEN HE APPEARED, NO DATE WAS ANNOUNCED IN THE COURT AND THE RESPONDENT - APPLICANT HAD WAITED FOR THE DATE OF NEXT HEARING AND HENCE, NON APPEARANCE ON THE APPOINTED DATE OF HEARING. 3. THE LEARNED DEPARTME NTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT IN THE APPEAL FILED BY REVENUE, THE ISSUE WAS RAISED AGAINST ORDER OF CIT(A) IN ALLOWING AN ALTERNATE CLAIM OF ASSESSEE FOR DEDUCTION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . HE POINTED OUT THAT THE PLEA OF ASSESSEE ON THE OTHER HAND, IN ITS APPEAL FILED BEFORE THE TRIBUNAL WAS TO ALLOW THE ORIGINAL CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. THE TRIBUNAL IN THE SAID APPEAL FILED BY ASSESSEE HAD SET ASIDE THE MATTER FOR L OOKING AT THE PLEA OF 10B OF THE ACT, WHEREIN THE ASSESSEE WAS AGGRIEVED BY THE DENIAL OF 10B OF THE ACT AND THAT ISSUE HAS BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER IN ITA NO.510/PUN/2015, ORDER DATED 07.06.2017. 4. THE LEARNED AUTHORIZED REPRESE NTATIVE FOR THE APPLICANT IN REJOINDER POINTED OUT THAT THE ASSESSEE HAD FILED THE APPEAL AGAINST ORDERS OF AUTHORITIES BELOW IN DENYING THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AND IN THAT APPEAL, HE COULD NOT HAVE TAKEN THE STAND OF ALLOWING D EDUCTION UNDER SECTION 10A OF THE ACT. HOWEVER, THE PRECEDENT HAD TO BE FOLLOWED, WHEREIN IN EARLIER YEARS, 10A DEDUCTION WAS ALLOWED IN THE HANDS OF ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRESENT MISCELLANEOUS APPL ICATION HAS BEEN FILED BY THE RESPONDENT - APPLICANT AGAINST THE ORDER OF TRIBUNAL DATED 20.09.2017, WHEREIN HE IS AGGRIEVED BY THE ORDER OF 3 M A NO. 44 /P U N/201 8 TRIBUNAL IN NOT ALLOWING AN OPPORTUNITY OF HEARING TO THE RESPONDENT - APPLICANT. BEFORE DISPOSING OF PRESENT MISCELLA NEOUS APPLICATION, THERE IS NEED TO LOOK AT THE PECULIAR FACTS OF THE PRESENT APPEAL, WHICH WAS DECIDED BY THE TRIBUNAL. 6. T HE ASSESSEE HAD IN THE RETURN OF INCOME CLAIMED DEDUCTION UNDER SECTION 10B OF THE ACT. THIS IS NOT THE FIRST YEAR FOR CLAIM OF DEDUCTION BY THE ASSESSEE. THE DEDUCTION CLAIMED UNDER SECTION 10B OF THE ACT WAS DENIED TO THE ASSESSEE AND BEFORE THE CIT(A), THE ASSESSEE MADE AN ALTERNATE SUBMISSION FOR GRANT OF DEDUCTION UNDER SECTION 10A OF THE ACT, WHICH WAS ALLOWED TO THE ASSESS EE. THE CIT(A) IN APPELLATE PROCEEDINGS HAS ELABORATELY CONSIDERED THE PLEA OF ASSESSEE THAT IT WAS ENTITLED TO THE AFORESAID CLAIM MADE IN THE RETURN OF INCOME UNDER SECTION 10B OF THE ACT. THE CIT(A) ALSO REFERRED TO THE DECISION OF HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. REGENCY CREATIONS LTD. (2012) 27 TAXMAN 322 (DEL) AND THE PLEA OF ASSESSEE IN THIS REGARD THAT THE SAID DECISION OF HONBLE HIGH COURT OF DELHI WAS PER INCURIAM AND NOT APPLICABLE TO ITS FACTS. HOWEVER, AN ALTERNATE CLAIM W AS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER FOR CLAIMING THE DEDUCTION UNDER SECTION 10A OF THE ACT, WHICH ADMITTEDLY, HE CLAIMED DURING ASSESSMENT PROCEEDINGS. THE CIT(A) THEN HAS NOTED THE CONTENTION OF ASSESSEE VIDE PARA 6.2.1 AT PAGE 19 OF AP PELLATE ORDER THAT THE JUDGMENT OF THE HONBLE HIGH COURT HAS BEEN OVERRULED BY WAY OF REVIEW PETITION IN THE CASE OF VALIANT COMMUNICATIONS LTD., WHEREIN THE ALTERNATE CLAIM UNDER SECTION 10A OF THE ACT HAS BEEN DIRECTED TO BE CONSIDERED. THE LEARNED AUT HORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE THE CIT(A) POINTED OUT THAT THE ASSESSEE HAD FULFILLED ALL THE REQUIREMENTS FOR AVAILING THE DEDUCTION UNDER SECTION 10A OF THE ACT. HE PRESSED FOR THAT ALTERNATE PLEA BEFORE THE CIT(A) AND POINTED OUT THAT A PPELLATE PROCEEDINGS WERE IN CONTINUATION OF ASSESSMENT PROCEEDINGS AND AS THE CLAIM UNDER SECTION 4 M A NO. 44 /P U N/201 8 10A OF THE ACT WAS LEGAL CLAIM, THE SAME SHOULD HAVE BEEN CONSIDERED AND BE ALLOWED DURING APPELLATE PROCEEDINGS. THE CIT(A) VIDE PARA 7.1 NOTES THAT THE AR GUMENTS OF ASSESSEE HAVE BEEN ELABORATELY DISCUSSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING YEAR IN APPELLATE ORDER DATED 30.10.20 14 PASSED IN ITA NO.116/PN/2014 HAS HELD THAT THE UNDERTAKING OF ASSESSEE DOES NOT ENJOY THE SPEC IFIC APPROVAL FROM THE AUTHORITY PRESCRIBED IN SECTION 10B OF THE ACT AND HENCE, THE ASSESSEE IS NOT ELIGIBLE TO CLAIM THE AFORESAID DEDUCTION. THE ALTERNATE CLAIM MADE UNDER SECTION 10A OF THE ACT WAS ALLOWED BY THE TRIBUNAL WITH DIRECTIONS. THE RELEVAN T FINDINGS OF TRIBUNAL ARE REPRODUCED UNDER PARA 7.1 FOR REFUSAL OF CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AND THEREAFTER, ALLOWING THE ALTERNATE CLAIM UNDER SECTION 10A OF THE ACT AND THE CIT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW THE ALTERNA TE CLAIM MADE UNDER SECTION 10A OF THE ACT IN LINE WITH DIRECTIONS OF TRIBUNAL GIVEN FOR ASSESSMENT YEAR 2010 - 11. 7. THE ASSESSEE THEN FILES AN APPEAL BEFORE THE TRIBUNAL STRESSING THAT IT IS ENTITLED TO CLAIM DEDUCTION UNDER SECTION 10B OF THE ACT. THE TRIBUNAL IN ITA NO.510/PUN/2015, RELATING TO ASSESSMENT YEAR 2011 - 12 VIDE ORDER DATED 07.06.2017 AFTER CONSIDERING SUBMISSIONS OF ASSESSEE REGARDING THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AND ALSO NOTING THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE VIDE ORDER DATED 30.10.2014 FOR ASSESSMENT YEAR 2010 - 11 AND ALSO NOTING THE ALTERNATE CLAM OF DEDUCTION UNDER SECTION 10A OF THE ACT, WHICH WAS DECIDED BY CIT(A), ALLOWED THE PLEA OF ASSESSEE AND REMITTED THE ISSUE BACK TO THE FILE OF CIT(A) TO DE CIDE THE ISSUE IN ACCORDANCE WITH LAW. THIS ORDER WAS PASSED ON 07.06.2017 AFTER HEARING THE PARTIES ON 01.06.2017. 5 M A NO. 44 /P U N/201 8 8. MEANWHILE, THE REVENUE HAS ALSO FILED AN APPEAL AGAINST THE ORDER OF CIT(A) IN ALLOWING THE ALTERNATE CLAIM UNDER SECTION 10A OF THE AC T. THIS APPEAL WAS FIXED FOR HEARING ON 02.08.2017. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT APPEAL FILED BY IT WAS HEARD ON 01.06.2017 AND THE ORDER WAS AWAITED. THE TRIBUNAL ON THE AFORESAID DATE, ADJOURNED THE APPEAL TO 11.09.2017 ON WHICH DATE, NONE APPEARED ON BEHALF OF ASSESSEE AND THE APPEAL OF REVENUE WAS DECIDED EX PARTE THE ASSESSEE. THE PERUSAL OF ORDER PASSED BY TRIBUNAL DATED 20.09.2017 AGAINST WHICH THE RESPONDENT - APPLICANT HAS FILED THE PRESENT MISCELLANEOUS APPLICATION, CLEARLY SHOWS THE NOTING OF THE AFORESAID FACTS BY TRIBUNAL AND THE NON APPEARANCE OF ASSESSEE ON THE APPOINTED DATE OF HEARING. IN CASE, ANY APPEAL IS FIXED FOR HEARING ON A PARTICULAR DATE AND WHERE THE LEARNED AUTHORIZED REPRESENTATIVE FO R THE ASSESSEE IS PRESENT IN THE BENCH AND MOVED APPLICATION FOR ADJOURNMENT , THEN IT IS INCUMBENT UPON THE SAID PERSON TO NOTE THE NEXT DATE OF HEARING AND APPEAR ON THE SAID DATE OF HEARING. THE PROCEDURE WHICH HAS BEEN SO LAID DOWN HAS BEEN CONTINUOUSL Y FOLLOWED BY THE BENCHES AND EVEN BY THE HIGHER FORUMS. ADMITTEDLY, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD MOVED AN APPLICATION FOR ADJOURNMENT AND WAS PRESENT IN THE BENCH ON THE APPOINTED DATE OF HEARING AND ONCE THE APPEAL IS BEING ADJOURNED TO 11.09.2017, THEN IT IS INCUMBENT UPON HIM AND HIS DUTY TO NOTE DOWN THE NEXT DATE OF HEARING AND THERE IS NO REQUIREMENT IN LAW TO SEND ANOTHER NOTICE OF HEARING TO THE SAID PERSON. 9. NOW, COMING TO THE PROCEEDINGS ON 11.09.2017, THE LEARNE D DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE TRIBUNAL HAS PASSED THE ORDER IN ASSESSEES APPEAL ON 07.06.2017 ITSELF AND THERE WAS NO MERIT IN THE PLEA OF ASSESSEE ON EARLIER DATE OF HEARING THAT THE ORDER OF TRIBUNAL IS NOT PASSED AN D THE SAME WAS AWAITED. HE THEN BROUGHT TO THE KNOWLEDGE OF TRIBUNAL THAT THE ISSUE 6 M A NO. 44 /P U N/201 8 HAS BEEN SET ASIDE TO THE FILE OF CIT(A) TO DE NOVO DECIDE THE ISSUE AND HENCE THE APPEAL OF REVENUE BE ALLOWED. IN SUCH SCENARIO, THE TRIBUNAL TOOK NOTE OF THE DECISION IN ASSESSEE S APPEAL, WHEREIN IT WAS AGGRIEVED BY THE ORDER OF CIT(A) IN NOT ALLOWING ITS CLAIM UNDER SECTION 10 B OF THE ACT. THE TRIBUNAL ALSO TOOK NOTE OF THE FACT THAT IN THE AFORESAID ORDER DATED 07.06.2017, THERE WAS NO CLEAR GROUND WITH REGARD TO AL TERNATE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT. IN ANY CASE, APPEAL OF ASSESSEE WAS ALLOWED VIS - - VIS 10B DEDUCTION AND THE ASSESSEE IN THE SAME BREATH CANNOT BE AGGRIEVED THAT 10A DEDUCTION WAS NOT ALLOWED. THE ASSESSEE IS ENTITLED TO EITHER ON E OF DEDUCTION. IN SUCH SCENARIO, WHERE THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE WHEN THE APPEAL OF REVENUE WAS FIRST TAKEN UP FOR HEARING I.E. FOR DATE OF HEARING ON 02.08.2017, THEN ONUS SHIFTS TO THE RESPONDENT - APPLICANT TO NOTE THE NEXT DATE OF HEARING AND MAKE HIS REPRESENTATION AND WHERE THE RESPONDENT - APPLICANT FAILS TO APPEAR, THEN IT CANNOT BE SAID THAT THE RESPONDENT - APPLICANT WAS PREVENTED BY REASONABLE CAUSE FOR NON APPEARANCE ON 11.09.2017. ONCE THE DATE OF HEARING WAS ANNOUNCED IN THE OPEN COURT, WHICH IS ALSO MENTIONED IN THE ORDER SHEET, THEN THE SUBMISSIONS OF RESPONDENT - APPLICANT CANNOT BE ENTERTAINED. THERE IS NO MERIT IN THE PRESENT MISCELLANEOUS APPLICATION MOVED BY THE RESPONDENT - APPLICANT AND THE SAME IS DISMISSED. 10 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS DISMISSED. ORDER PRONOUNCED ON THIS 21 ST DAY OF JANUARY , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST J ANUARY , 201 9 . GCVSR 7 M A NO. 44 /P U N/201 8 / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - 1, PUNE ; 4. THE CIT - 1, PUNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE