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Income Tax Appellate Tribunal, HYDERABAD BENCHES “B”: HYDERABAD
Before: SHRI SATBEER SINGH GODARA & SHRI LAXMI PRASAD SAHU
O R D E R PER L.P. SAHU, A.M.: This appeal filed by the assessee is directed against CIT(A) - 12, Hyderabad’s order dated 26/04/2017 for AY 2010-11 involving proceedings u/s 143(3) of the Income Tax Act, 1961 ; in short “the Act on the following grounds of appeal:
1. The Ld. CIT(A) erred both on facts and in law in dismissing the appeal.
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2. The Ld. CIT(A) ought to have appreciated that the date of report in Form No.56F is 26.08.2010 which is much before the date of assessment i.e., 30.12.2011.
3. The Ld. CIT (A) has erred in not considering Form No.56F which has been filed before the Assessing Officer during the course of proceedings ix] s 154 on 22.04.2015 and erred in not deleting the disallowance of deduction claimed uls 10A of the Act for Rs.42,10,048/-· 4. The Ld. CIT(A) ought to have considered Form No.56F filed at page Nos. 264 to 266 of paper book filed during appellate proceedings, on 27.11.2013 and ought to have allowed the grounds of appeal
with regard to the claim of deduction u/s 10A of the Act.
5. The Ld. CIT(A) ought to have appreciated that Form No.56F which has not been submitted along with the return of income can also be furnished during appellate proceedings in support of the claim u/ss 10A of the Act.
6. Without prejudice to other grounds, the Ld. CIT (A) ought to have appreciated that the appellant was prevented by sufficient cause from filing Form No.56F before the Assessing Officer before completion of the assessment.
7. The Ld. CIT (A) erred in not appreciating the fact that the A.O has completed the assessment not based on search material.
8. As per the ratio laid down by the Hon'ble Supreme Court of India in the case of National Thermal power Co. Ltd vs. OT (1998) 729 ITR 383 (SC) the IT AT has jurisdiction to examine the question of law though not arisen before the CIT (A) but has arisen before the ITAT for the first time.
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The appellant may add or alter or amend or modify or substitute or delete and / or rescind all or any of the grounds of appeal
at any time before or at the time of hearing of the appeal. Additional Grounds 10. As per the ratio laid down by the Honourable Supreme Court of India in the case of National Thermal Power Co. Ltd v. CIT (1998) 229 ITR 383 (sq, the Hon'ble IT AT has jurisdiction to examine the question of law which has been taken before the ITA T for the first time though not taken before the first appellate authority.
11. The Ld. CIT(A) ought to have annulled the assessment made uls 143(3) r.w.s. 153A of the Act dated 26.04.2017 on the ground that no notice uls 143(2) of the Act has been issued and served on the assessee for the assessment year under consideration.
12. The Ld. CIT (A) ought to have followed the ratio laid down by the Apex Court in the case of ACIT & Am. v Mis. Hotel Blue Moon in Civil Appeal No.1198 of 2010 dated 02.02.2010 and annulled the impugned assessment before completion of which no notice uls 143(2) of the Act has been issued and served on the assessee for the assessment year under consideration.
13. The Ld. CIT (A) ought to have appreciated that where deduction u/s 10A of the Act was granted for an initial assessment Year, the same could not be rejected for subsequent assessment years.
14. The CIT(A) ought to have appreciated that the claim of deduction u/s 10A of the Act which is being claimed and allowed from the assessment year 2001-02 i.e., the initial assessment year, is required to be allowed for the assessment year under consideration also.”
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Briefly, the facts of the case are that a search and seizure operation u/s 132 of the Act was conducted in the case of assessee and its group of cases on 11/03/2010. It being a search year, notice u/s 142(1) was issued to the assessee on 13/10/2011. In response to the notice issued, assessee filed return of income for the AY 2010-11 on 19/10/2011 declaring income of Rs. 65,68,840/-.
2.1 Thereafter, notice u/s 142(1) along with questionnaire was issued to the assessee on 22/07/2011 against which the ld AR of the assessee filed the information called for.
2.2 On perusal of record, the AO noticed that the assessee company claimed deduction u/s 10A of Rs. 42,10,048/-, but has not furnished any break-up details of export profits and also failed to submit statutory report in Form No. 56F either with the return of income or during the course of assessment proceedings, In the absence of above documents, the Assessee’s claim of deduction of Rs. 42,10,048/- u/s 56F was disallowed by the AO.
When the assessee preferred an appeal before the CIT(A) the CIT(A) dismissed the appeal of the assessee.
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Aggrieved by the order of CIT(A), the assessee is in appeal before the ITAT.
As regards the additional grounds raised by the assessee regarding no notice has been issued by the AO u/s 143(2) of the Act before completing the assessment order u/s 143(3) of the Act, it is observed that from the paper book filed by the ld. DR consisting of pages 1 to 6, we find from the SL. No. 3 & 4 of the paper book index, at Sl.No.3 : letter issued by then AO ACIT CC-3, Hyd calling for information along with notice u/s 142(1) & 143(2) dated 09/12/2011 vide F.No. ACIT-Q/Gold-tech/2011-12 and at Sl.No. 4: Snapshot of the ITD module for the AY 2010-11 showing notice u/s 143(2) was sent on 29/08/2011 and hearing fixed for 12/09/2011 at 11.00 AM. For the sake of clarity, the contents of the aforementioned letters are reproduced below:
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5.1 However, on perusal of page 5, which is a snapshot of ITD Module, notice u/s 143(2) was sent on 29/08/2011 and hearing fixed on 12/09/2011 at 11.00 AM. It is clear from the letter placed at pages 3 & 4 of paper book filed by the department, there is a notice enclosed u/s 142(1) and (143(2), which has been acknowledged as received on 12/12/2011 signed by “Satyam”. We find from the assessment order and letters cited as above, notice u/s 143(2) was sent on 29/08/2011. Since this is a search year, assessment shall be completed as per the provisions of section 143(3) the IT Act. The Hon’ble High Court of :- 9 -: M/s Goldstone Technologies Ltd., Hyd.
Madras in the case of B. Kubendran Vs. DCIT, [2021] 126 Taxmann.com 107 (Madras.), has held that notice u/s 143(2) is not required to be issued in the cases where assessments framed u/s 153A, but, in the present case, this is a searched year and assessment had been completed u/s 143(3), notice is required to be issued which are evident from the documents filed by the ld. DR. Therefore, if we go by the assessment order, the assessee filed return of income on 19/10/2011 and the notice was issued on 09/12/2011, which has been acknowledged by the assessee on 12/12/2011, whereas, if we go by the Department’s snap shot from ITD module cited supra, the notice u/s 143(2) was sent on 29/08/2011. Therefore, the grounds raised by the assessee on the legal issue are dismissed.
Now coming to the merits of the case in respect of the exemption claim of the assessee u/s 10A of the Act, we find that the assessing officer has denied the claim of exemption of assessee claimed U/s 10A for want of statutory Form No. 56F. As per the CIT (A) the Form No. 56F was filed as additional evidence vide petition dated 25.11.2003 dated 27.11.2003 enclosing with the consolidated paper book containing page No. 266 for the assessment year 2007-08 to 2010-11, which has not been accepted by the CIT(A) by referring to the Rule 46A of the I. T. Rules and relying on the some judgements. Before us, the ld. AR of the assessee has filed necessary certificate in Form No. 56 dated
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26/08/2010 vide paper book at page No. 65 & 66, filed before us and as per the certification made by the ld. AR of the assessee that the same has been filed before the authorities below. The ld. AR further submitted that the statutory form for claiming exemption/deduction can be submitted even at the appellate stage also. In support of this argument, he relied on the following judgements: 1. CIT Vs. American Data Solutions India Pvt. Ltd., 232 of 2008 (HC Karnataka) 2. CIT Vs. ACE Multitaxes Systems Pvt. Ltd., 317 ITR 207 (HC – Kar.) 3. ACIT Vs. M/s Mindspeed Technologies Ltd., (ITAT – Hyd.) 6.1 After going through the above case law, we observe that if the assessee has not submitted the necessary statutory form for claiming exemption/deduction along with return of income or during the course of assessment proceedings, it can be submitted at the appellate stage also, to which, the assessee has submitted before the CIT(A) as well as before us. We further notice that the Accountant has signed the Form No. 56F on 26/08/2010, which is much before the filing of return of income. Considering the facts of the case and case law relied upon by the ld. AR of the assessee, Form No. 56F filed by the assessee, should have been considered by the lower authorities. From the orders of lower authorities, it is not clear that whether the exemption claimed by the assessee has been examined or not and, therefore, we remit the issue back to the file of the :- 11 -: M/s Goldstone Technologies Ltd., Hyd.
CIT(A) for a limited purpose for verification of the claim of exemption u/s 10A in the prescribed form No. 56F by the assessee and decide the issue in accordance with law after providing reasonable opportunity of being heard to the assessee.
In the result, appeal of the assessee is partly allowed for statistical purposes in above terms. Pronounced in the open court on 23rd November, 2021.