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Income Tax Appellate Tribunal, “H”
Before: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RAJESH KUMAR, AM
आदेश / O R D E R
PER SANDEEP GOSAIN, JM:
1. The above two appeals have been filed by the Revenue against the different order passed by the Ld. Commissioner of Income Tax (Appeals)- 17, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2004-05 & 2006-07.
& 2991/M/2018 A.Y. 2004-05 & 2006-07 ITA. NO.2990/M/2018:- 2. First of all we take up appeal filed by the revenue in which is against the order dated 26.02.2018 passed by the Ld. Commissioner of Income Tax (Appeals)-17, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2004-05.
The brief facts of the case are that assessee is engaged in the business of providing I.T. enabled services, etc. During the year under consideration, assessee filed its return of income declaring total income to the tune of Rs.6,63,25,330/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was selected for scrutiny and notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessment of the assessee was completed u/s 143(3) of the Act determining total income to the tune of Rs.11,70,12,950/-. Subsequently based on the order passed u/s 143(3) for AY 2005-06, the case of the assessee was reopened u/s 147/148 of the Act and exemption u/s 10A was disallowed. Ld. CIT(A) as well ITAT confirmed the order of reopening. However, Hon’ble High Court quashed the order of reopening. In the meantime, the AO had given effect to the direction of Hon’ble ITAT vide order dated 30.03.06.
Aggrieved by the order of AO, the assessee filed an appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties, allowed the appeal of the assessee. & 2991/M/2018 A.Y. 2004-05 & 2006-07
Aggrieved by the order of Ld. CIT(A), the revenue has filed the present appeal before us.
GROUND NOs. 1 to 3:-
5. All the grounds raised by the revenue are inter related and inter connected and relates to challenging the order of Ld. CIT(A) in allowing benefit of section 10A of the Act to the assessee, therefore we thought it fit to dispose of the same by this common order.
We have heard the counsels for both the parties and we have also perused the material placed on record as well as orders passed by the revenue authorities. We find that Ld. CIT(A) has dealt with these grounds in para no. 5 to 7 of its order and the same is reproduced below:-
5. Decision 5.1 I have carefully considering the submissions and arguments of the AR of the appellant company. I have gone through all the previous orders of the AO, CIT(A) and ITAT, appeal u/s 254 r.w.s 143(3) r.w.s. 147 of the Act. I have also gone through the order dated 26.07.17 of Hon’ble Bombay High Court in the case of the assessment for the instant year i.e. AY 2004-05. “ 5.2. The assessment for A.Y. 2004-05 was reopened on the basis of the assessment order was completed u/s.143(3) r.w.s.147, where exemption u/s.10A for Unit-II and Unit-Ill was denied as in case of subsequent assessment year i.e. A.Y.2005-06. After unsuccessful attempt before CIT(A), the appellant company approached Hon'ble ITAT, & 2991/M/2018 A.Y. 2004-05 & 2006-07
Mumbai. The ITAT Mumbai vide order dt.21.3.2014 upheld the re- opening and restored the matter back to the AO with certain instructions/ The effect given to this order was Hon’ble ITAT is the subject matter of the appeal. 5.3 The order of the ITAT dt.21.3.2014 was challenged before the Hon'ble Bombay High Court. The copy of the judgement of Hon'ble Bombay High Court dt.26.7.2017 has been filed. The relevant portion of the judgment is quoted below:
1.
The Assessing Officer reopened the assessment on the ground that the assessee was not entitled for deduction under Section 10A of the Act. The reopening was within the period of four years. The appeal filed by the assessee before the Commissioner is dismissed. Thereafter, the appeal filed before the Tribunal is also dismissed. The Tribunal, on the ground that reassessment is within a period of four years, did not set aside the order of reassessment but had restored the issue back to the file of the Assessing Officer and directed him to strictly comply with the directions given by the Tribunal on the said issue and to examine whether Unit /land Unit III were set up by the assesse as independent units or not.
2. Today, vide our judgment dated 26July 2017, we have dismissed the appeal of the Revenue for the assessment year 2005-2006 holding that Unit-I and Unit IIi were independent units and were entitled for deduction under Section 10Aofthe Act.
3. The appellant herein has framed following substantial question law: "Whether on the facts and in the circumstances of the case and in law, the Tribunal erred in upholding the validity of the reopening of the assessment u/s. 148 and the consequent order of reassessment passed u/s, 147 of the Act without appreciating that benefit ills. 10A in respect of Unit-II and Unit- lII could neither be denied during assessment or reassessment proceedings for Subsequent years when the same had been allowed in the first year of operation of the units?"
4. As we have already held in appeal filed by the Revenue bearing No.63 of 2016 for the assessment. year 2005-2006 that Unit Il and Unit are entitled for benefit under Section 104 of the Act, for the reasons recorded in the said judgment, the substantial question of law, as framed, will have to be answered & 2991/M/2018 A.Y. 2004-05 & 2006-07 in favour of the assessee and the ground for reopening itself be set at naught.
In light of the above, the appeal is allowed.
6. The judgement of the Assessing officer and Commissioner of Income Tax (Appeals) and the Tribunal are quashed and set - aside and the reopening-proceeding stand quashed and set aside." thus re-assessment u/s.147 for the instant year has been quashed. On the reopening of proceeding has been quashed the resultant re- assessment order effect u/s.254 etc., becomes non-sustainable/For statistical purpose appeal is treated as allowed.”
After having gone through the facts of the present case, we find that assessment for the year under consideration was reopened on the basis of assessment completed for AY 2005-06, wherein, the exemption claimed u/s.10A for Unit-II and Unit-Ill was disallowed. Therefore after reopening the assessment for the year under consideration was completed u/s 143(3) r.w.s 147, wherein also exemption u/s 10A for Unit-II and Unit –III was denied as in the case of subsequent assessment year i.e. A.Y.2005-06.
After unsuccessful attempt before Ld. CIT(A), the assessee approached ITAT. However, ITAT upheld the re-opening and restored the matter back to the AO with certain directions. In the meantime, assessee challenged the order of reopening before the Hon'ble Bombay High Court and Hon'ble Bombay High Court on the appeal of the assessee, quashed the reopening proceeding. Therefore, in such circumstances, Ld. CIT(A) after appreciating the facts of the present case, had rightly concluded that once & 2991/M/2018 A.Y. 2004-05 & 2006-07 the reopening proceeding had been quashed, then in that eventuality, the resultant re-assessment order effect u/s.254 etc. becomes non-sustainable.
No new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT. Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld. CIT. Hence, we are of the considered view that the findings so recorded by the Ld. CIT are judicious and are well reasoned. Resultantly, these grounds raised
by the revenue stands dismissed.
10. In the result, the appeal filed by the revenue is hereby ordered to be dismissed.
ITA. NO.2991/M/2018:- 11. The facts of the present case are quite similar to the fact of the case as narrated above while deciding the therefore, there is no need to repeat the same. The revenue has challenged the order of Ld. CIT(A) in concluding that the benefits of Section 10A of the Act in respect of Unit-II and Unit-III amounting to Rs.36,57,39,490/- are allowable by treating such units as distinct undertaking by ignoring the fact that the assessee in its application to the STPI Authorities has stated that these units are expansion and not distinct undertakings. & 2991/M/2018 A.Y. 2004-05 & 2006-07
Before deciding the grounds on merit, it is necessary to evaluate the order of Ld. CIT(A) while deciding these grounds. The operative portion of the order of Ld. CIT(A) is reproduced below:-
“I have carefully considered the submission and argument of the AR of the appellant company. I have also gone through the previous associated orders of the AO, ITAT and judgement of Hon'ble Bombay High Court for A.Y.2005-06. The dispute in all these years have been 'claim of exemption u/s.10A' of the Act for its Unit-II and Unit-Ill. It is seen that till assessment year 2004-05, the exemption u/s.10A has been allowed for both the unit i.e. Unit-II and Unit-Ill. The assessment year 2005-06 is the base year. When the AO examined the allowability of exemption u/s.10A and concluded that Unit-II and Unit-III are expansion of existing undertaking and hence not entitled to the benefit u/s.10A of the Act. Particularly in absence of separate registration and disallowed the appellant's claim. On the basis of this assessment i.e. A.Y.2005-06, wherein the exemption u/s.10A has been disallowed the assessment of A.Y.2006-07 has also been completed u/s.144C(13) r.w.s.143(3). After the original assessment this issue travelled to the ITAT and the Hon'ble ITAT issued certain directions and set aside the issue to the file of the AO. Effectively, there are three issues on which the directions have been given. i.e. denial of exemption u/s.10A, disallowance u/s.14A r.w. rule 8D and Transfer Pricing issue. The AO has followed the assessment of A.Y.2005-06 for exemption u/s.10A and also disallowed Rs.19,21,370/- u/s.14A. No transfer pricing adjustment has been done. The denial of exemption u/s.10A of Unit-II and III is exclusively on the basis of A.Y.2005-06. The Hon'ble Bombay High Court has decided the issue of exemption u/s.10A for A.Y.2005-06 in favour of the appellant company. I have perused the order of Hon'ble Bombay High Court for A.Y.2005-06. "In Light of aforesaid facts, it would be clear that the unit II and Unit III cannot be said to be formed by reconstruction nor can be said to be an expansion of earlier same business. Though the permission was sought by way of an expansion, the facts on record categorically and succinctly & 2991/M/2018 A.Y. 2004-05 & 2006-07 establish that the business of Unit II and Unit III were independent, distinct and The Tribunal also considered the letter from Director, STPL issued to the Assessing Officer dated loch December 2008, the letter of the Director, STPI, intimating formation of Unit II so also another letter to Director, STPI, seeking permission for bonding facility for Unit II and approval from Director, STPI for Unit Ii, the letter to the Director, STPI, intimating formation of Unit III, letter to Director, STPI, seeking permission for bonding facility for Unit In and approval from Director, 5TH for Unit Ill After considering all the 'documentary evidence and the remand report of the Assessing Officer, the Tribunal agreed with the remand report of the Assessing Officer and held that the assessee would he entitled for benefit of Section 1OA of the Act.
The assessee has relied on the judgment of Patni Computer Systems Ltd referred to supra which has been upheld by this court. In the said judgment also, the Tribunal had held that permission was sought by Patni Computers Systems Ltd for expansion and benefit under Section 10A was accorded. The said order is upheld by this court in appeal.
In case of Textile Machinery Corporation Ltd. referred to supra, the Apex Court was considering the provisions of Section 15'G,) of the Act as it stood then, dealing with similar provisions. The Apex Court in the said case observed that the true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking, separate and distinct from the existing business. No particular decision in one case can lay down an inexorable test to determine whether a given case comes under Section 15C or not.” Considering the aforesaid conspectus, any error while passing the impugned order." Thus in view of the order of Hon’ble Bombay High Court, wherein the exemption uls.10A has been allowed in case of appellant company for its Unit-II and III for A.Y.2005-06. Similar exemption u/s.10A cannot be denied by the revenue i.e. for A.Y.2006-07. Thus, ground of appeal filed on this issue i.e. exemption u/s.10A is allowed. As far the grounds related to granting full credit of TDS is concern the AO is directed to examine and allow according to the provisions of law.”
& 2991/M/2018 A.Y. 2004-05 & 2006-07
After having gone through the arguments of the parties as well as the order of Ld. CIT(A), we find that Hon’ble Bombay High Court had allowed the exemption u/s 10A for Unit-II and Unit-III for A.Y. 2005-06. Therefore in such circumstances, Ld. CIT(A) had rightly concluded that similar exemption u/s 10A cannot be denied by the revenue i.e. for A.Y. 2006-07. Therefore, in the said circumstances, we are of the view that the Ld. CIT(A) had decided the matter in controversy judiciously and correctly which is not liable to be interfere. Accordingly, we uphold the finding of the CIT(A).