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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI JASON P BOAZ & SHRI PAVAN KUMAR GADALE
O R D E R
Per Jason P. Boaz, Accountant Member:
These are cross appeals by the assessee and Revenue directed against the order of CIT(A)-I, Bengaluru, dated 12.02.2014; for Assessment Year 2011-12.
Briefly stated, the facts of the case are as under:-
2.1 The assessee, a company engaged in the business of manufacturing and Exporter of readymade garments and job works, filed its return of income for Assessment Year 2011-12 on 27.09.2011 declaring total income of Rs.6,01,06,300/- after claiming deduction of Rs.42,65,47,075/- under section 10B of the Income Tax Act, 1961 (in short ‘the Act’). The case was taken up for scrutiny and the assessment was concluded under section 143(3) of the Act vide order dated 24.03.2014 wherein the assessee’s income was determined at Rs.48,66,53,376/-. This was due to the disallowance of the assessee’s claim for deduction under section 10B of the Act as the Assessing Officer (AO) was of the view that the assessee company was formed by reconstruction of a business already in existence by use of used plant and machinery thereof for this purpose.
2.2 Aggrieved by the order of assessment for Assessment Year 2011-12 dated 24.03.2014, the assessee preferred an appeal before the CIT(A)-I, Bengaluru. The CIT(A) disposed off the appeal vide order dated 31.07.2014 allowing the assessee partial relief. In this order, the CIT(A) held that the assessee is entitled for deduction under section 10B of the Act; but disallowed the assessee’s alternate claim for being allowed deduction under section 80JJA of the Act for the reason that the assessee failed to satisfy the conditions laid down for grant of deduction thereunder.
Both Revenue and the assessee, being aggrieved by the order of CIT(A)-I, Bengaluru, dated 31.07.2014, have preferred cross appeals. We now proceed to dispose these appeals hereunder:-
Revenue’s appeal in – for Assessment Year 2011-12
In is appeal, Revenue has raised the following grounds:-
5. Ground Nos. 1, 4 and 5 (supra), being general in nature and not urged before us; no adjudication is called for thereon and the same are accordingly dismissed as infructuous.
6. Ground Nos. 2 and 3 – Deduction under section 10B of the Act 6.1 In these grounds (supra), Revenue reiterates its stand that the CIT(A) erred in directing the AO to allow the deduction claimed under section 10B of the Act without appreciating the fact that the assessee company was formed by reconstruction of the business already in existence and had made use of already used plant and machinery. The learned DR was heard in support of the grounds raised.
6.2 The learned AR for the assessee submitted that this issue of eligibility of the assessee for being entitled to be allowed deduction under section 10B of the Act had already come up before and was addressed by the Tribunal for Assessment Year 2007-08 in the assessee’s own case and in its order in dated 17.04.2015 (copy placed on record) decided this issue in favour of the assessee and against Revenue. It was further submitted that subsequently, Co-ordinate Benches of Tribunal in their orders for Assessment Year 2008-09 in ITA No.1245/Bang/2013 dated 27.11.2015; for Assessment Years 2009-10 and 2010-11 in ITA Nos.839 and 840/Bang/2014 dated 19.02.2016 dismissed Revenue’s appeals following the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case for Assessment Year 2007-08 (supra). It is prayed by the learned AR that in view of the aforesaid judicial pronouncements (supra), the issue is covered in favour of the assessee and against Revenue.
6.3.1 We have considered the rival contentions / submissions and perused the material on record; including the judicial decisions cited and placed reliance upon. We find that the Co-ordinate Bench of this Tribunal in the assessee’s own case for Assessment Year 2007-08 has considered the issue of the assessee’s eligibility for being allowed deduction claimed under section 10B of the Act and in its order in dated 17.04.2015, while deciding Revenue’s appeal, at para 6 thereof held as under:-
6.3.2 We also find that the aforesaid decision of the Tribunal in the assessee’s own case upholding the assessee’s claim for being entitled to deduction under section 10B of the Act (supra); has been followed by successive Co-ordinate Benches of this Tribunal in the assessee’s own case for Assessment Year 2008-09 in dated 27.11.2015 and for Assessment Years 2009-10 and 2010-11 in ITA Nos.839 and 840/Bang/2014 dated 19.02.2016. In view of the facts and circumstances of the case which established that the assessee company is not formed by reconstruction of an existing business as has been held in Assessment Year 2007-08 and consequently that the assessee is eligible / entitled for deduction under section 10B of the Act, therefore respectfully following the aforesaid decisions of the Co-ordinate Benches of this Tribunal in the assessee’s own case from Assessment Years 2007-08 to 2010-11 (supra), we uphold the assessee’s entitlement for deduction under section 10B of the Act. Consequently, ground Nos. 2 and 3 raised by Revenue are dismissed.
In the result, Revenue’s appeal for Assessment Year 2011-12 is dismissed.
Assessee’s Appeal in Assessment Year 2011-12
In its appeal, the assessee has raised the following grounds:-
8.0 Ground No.1 (supra) being general in nature, no adjudication is called for thereon, as specific grounds on the issues mentioned therein are raised in the subsequent grounds 2 and 3.
Ground 2 (2.1 to 2.3) – Enhanced claim of deduction under section 10B of the Act 9.1 In this ground (supra), the assessee contends that the enhanced claim for deduction under section 10B of the Act; made by it in the course of assessment proceedings for considering only the exports proceeds received by the assessee within the due date specified by RBI / authorised dealer was ignored. It is argued that the CIT(A) erred in not directing the AO to re-compute the claim for deduction under section 10B of the Act by considering the export proceeds received by the assessee after filing the return of income for Assessment Year 2011-12, but before the due date specified by the competent authority.
9.2 The facts of the matter as emerge from a perusal of the order of assessment are that admittedly, the assessee, in the course of assessment proceedings filed letter dated 10.03.2013 revising its claim for deduction under section 10B of the Act. In the said letter it was mentioned by the assessee that consideration / sale proceeds for certain exports, which were eligible for deduction under section 10B of the Act, was received after certification by the statutory auditors of the company in Form No.56G. However, as per the assessee, such export proceeds were received within the time limit prescribed under the Act and therefore the assessee has put forth this revised / enhanced claim of Rs.47,77,633/- for deduction under section 10B of the Act. The AO, however, refused to consider this claim by relying on the judgment of the Hon’ble Apex Court in the case of Goetze (India) Ltd., Vs. CIT (284 ITR 3423).
9.3 Before us, the learned AR for the assessee submitted that the issue of enhanced claim for deduction under section 10B of the Act was considered by a Co-ordinate Bench of this Tribunal in the assessee’s own case for Assessment Year 2010-11, under similar facts, and in its order in dated 19.02.2016 and at para 7 thereof has set aside the orders of the authorities below and restored the issue to the file of the AO for examining the assessee’s enhanced claim of deduction in accordance with law.
9.4 The learned DR for Revenue supported the orders of the authorities below.
9.5.1 We have considered the facts and circumstances of the case, the rival submissions / contentions of both the parties and perused the material on record; including the judicial decision cited. While the judgment of the Hon’ble Apex Court in the case of Goetze (India) Ltd., (supra) does state that an AO cannot entertain a claim for deduction by the assessee otherwise than by way of filing a revised return in this regard, this judgment of the Hon’ble Apex Court (supra) does not impinge upon or place fetters on the powers of the appellate authorities to consider such a claim by virtue of its judgment in the case of NTPC Ltd., Vs. CIT (229 ITR 383). In this view of the matter, we are of the opinion that the CIT(A) certainly erred by ignoring the grounds raised before him in this regard and in not directing the AO to consider the assessee’s claim for enhanced deduction under section 10B of the Act. We find that there was an identical fact / issue situation in the assessee’s own case for Assessment Year 2010-11 and in its order in dated 19.02.2016, the Co-ordinate Bench of this Tribunal at paras 9 to 12 of its order held as under:-
[229 ITR 383]. Thus, in our opinion, CIT(A) fell in error in not directing the AO for verifying the claim of the assessee in this regard. We set aside the orders of lower Authorities on this issue and remit this issue back to the file of the AO for considering the revised claim of the assessee u/s.10 of the Act, in accordance with law.”
9.5.2 Respectfully following the decision of the Co-ordinate Bench of this Tribunal in the assessee’s own case in dated 19.02.2016 for Assessment Year 2010-11, we set aside the orders of the authorities below on this issue of the assessee’s revised claim for enhanced deduction under section 10B of the Act and restore the issue to the file of the AO for considering the same in accordance with law. Needless to add, the AO shall afford the assessee adequate opportunity of being heard and to file details / submissions required; which shall be duly considered before deciding the issue. We hold and direct accordingly. Consequently, ground No.2 of assessee’s appeal is allowed for statistical purposes.
Ground No.3 (3.1 to 3.8) – Claim of deduction under section 80JJAA of the Act 10.1 In this ground (supra), the assessee put forth contentions claiming that it is eligible for deduction under section 80JJAA of the Act.
10.2 The facts of the matter that emerge from the record are that the assessee neither made any claim for deduction under section 80JJAA of the Act in its original return of income filed for Assessment Year 2011-12, i.e., the year under consideration nor filed the Audit Report obtained in Form No.10DA along with the return of income filed. In the course of assessment proceedings, the assessee vide letter dated 21.02.2014 submitted a revised computation before the AO putting forth a claim for deduction under section 80JJAA of the Act amounting to Rs.6,77,64,897/- along with Form 10DA dated 21.02.2014. This claim of the assessee was dismissed by the AO after due consideration at paras 6 to 6.8 of the order of assessment. On appeal, the CIT(A) considered the assessee’s claims and submissions put forth and dismissed the assessee’s claim for deduction under section 80JJAA of the Act, thereby upholding the AO’s view in the matter.
10.3.1 We have heard the rival contentions and carefully considered the submissions put forth and perused the material on record. Apart from raising various arguments / contentions in the grounds at 3 (3.1 to 3.8), we find that no material was brought on record by the assessee to factually / legally establish its claim for being allowed deduction under section 80JJAA of the Act and to support the various averments made in the grounds raised (supra). In our considered view the CIT(A) in the impugned order at paras 5 to 9 of his order (at pages 44 to 53 thereof) has elaborately considered the AO’s views in the matter of the assessee’s claim for being allowed deduction under section 80JJAA of the Act; the assessee’s submissions in this regard and finally at paras 8 and 9 of the impugned order dismissed the assessee’s claim by holding as under:-
10.32 In our considered view, no material has been placed before us by the assessee to controvert the findings of the authorities below, on merits, to the effect that the assessee was entitled to be allowed deduction under section 80JJAA of the Act in the facts and circumstances of the case on hand. Even otherwise, the provisions of clause (b) of sub-section (3) of section 80JJAA r.w.s. 80A(5) of the Act which requires that the report in Form 10DA has to be filed along with the return of income and by implication accompanied by the Accountant’s report to support such claim; has not been complied with by the assessee. In this view of the matter, we find no merits in the grounds No.3 (3.1 to 3.8) raised by the assessee on this issue (supra) and therefore dismiss the assessee’s claim for being allowed deduction under section 80JJAA of the Act.
In the result, the assessee’s appeal for Assessment Year 2011-12 is partly allowed for statistical purposes.
To sum up, Revenue’s appeal for Assessment Year 2011-12 is dismissed and the asssessee’s cross appeal is partly allowed for statistical purpose.
Order pronounced in the open court on this 12th day of July, 2019.