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Income Tax Appellate Tribunal, BANGALORE BENCH ‘C’, BANGALORE
Before: SHRI S.K.YADAV & SHRI A. K. GARODIA
Date of hearing : 05-12-2016 Date of pronouncement : 16-12-2016 O R D E R PER A. K. GARODIA, A. M : Both these are revenue’s appeals which are directed against the combined order of ld.CIT(A)-5, Bangalore dated 12-10-2015 for the assessment years 2005-06 & 2006-07. Both these appeals were heard together and are being disposed of by this common order for the sake of convenience.
The revenue has raised the following grounds in ITA No.151(B)/2016:
“1. The order of the CIT(A)-5, Bangalore is opposed to law and not on the facts and circumstances of the case.
2. On the facts and circumstances of the case, the CIT(A) erred in allowing deduction u/s 80JJAA based on the jurisdictional ITAT decision in the case of Texas Instruments (Ind.) Pvt.Ltd., as the issue involved in the referred case related to whether the new employees, being software engineers, were eligible for the said deduction as they did not come within the ambit of the term ‘wortkman’. New workman employed for period of 300 days in relevant previous year are eligible for deduction u/s 80JJAA and no reference to new employees employed in the preceding year is made in the section.
3. On the facts and circumstances of the case, the CIT(A) erred in law in allowing the expenses claimed without taking into account the turnover declared before the sons of the Directors were sponsored for higher studies and after their return from higher studies. The ld. CIT(A) has erred in ignoring the fact that the data of turnover clearly shows that even before they were sponsored for higher studies, the turnover had been increasing year-on-year and the contention that the higher turnover is because of the input of the two employees is not acceptable.
4. The appellant craves for leave to, add alter, amend or delete any other grounds on or before hearing of the appeal”
Similarly, in the revenue has raised the following grounds:-
“1. The order of the CIT(A)-5, Bangalore is opposed to law and not on the facts and circumstances of the case.
2. On the facts and circumstances of the case, the CIT(A) erred in allowing deduction u/s 80JJAA based on the jurisdictional ITAT decision in the case of Texas Instruments (Ind.) Pvt.Ltd., as the issue involved in the referred case related to whether the new employees, being software engineers, were eligible for the said deduction as they did not come within the ambit of the term ‘wortkman’. New workman employed for period of 300 days in relevant previous year are eligible for deduction u/s 80JJAA and no reference to new employees employed in the preceding year is made in the section.
3. On the facts and circumstances of the case, the CIT(A) erred in law in allowing the expenses claimed without taking into account the turnover declared before the sons of the Directors were sponsored for higher studies and after their return from higher studies. The ld. CIT(A) has erred in ignoring the fact that the data of turnover clearly shows that even before they were sponsored for higher studies, the turnover had been increasing year-on-year and the contention that the higher turnover is because of the input of the two employees is not acceptable.
4. The appellant craves for leave to, add alter, amend or delete
any other grounds on or before hearing of the appeal”
Learned DR of the revenue supported the assessment order whereas the ld. AR of the assessee supported the order of the ld.CIT(A).
He also submitted that the issue in dispute is covered in favour of the assessee by the Tribunal order rendered in assessee’s own case for the assessment year 2007-08, 2008-09 and 2009-10 in to 1233(B)/2014 dated 24-07-2015. He submitted that a copy of this Tribunal order is available on pages-25 to 40 of the paper book. He has drawn our attention to para-8 of this Tribunal order as per which the Tribunal has confirmed the order of the ld. CIT(A) in these years as per which the issue was decided by the ld. CIT(A) in favour of the assessee.
He also submitted that in assessment year 2010-11 also, the matter reached before the Tribunal in assessee’s own case and the Tribunal order for the assessment year 2010-11 in dated 24-06-2016 is available on pages 1 to 24 of the paper book and as per para-13 of this Tribunal order, the Tribunal has restored the matter back to the file of the AO for a fresh decision. He submitted that he has no objection if the matter is restored back to the file of the AO for fresh decision in line with the Tribunal order for assessment year 2010-11.
We have considered rival submissions. First of all, we re- produce para-13 of the Tribunal order in assessee’s own case for assessment year 2010-11.
“13. Ground no.14 relates to disallowance of deduction u/s 80JJAA of the Act. This ground is covered in favour of the assessee-company in its own case for assessment years 2007-08 and 2008-09 in to 12339Bang)/2014 dated 24/07/2015. Respectfully following the order of the Tribunal, we remit the issue back to the file of the AO for de novo examination of the claim in accordance with provisions of law”.
From the above Para re-produced from the order of the Tribunal in assessee’s own case for assessment year 2010-11, we find that the Tribunal has followed the earlier Tribunal order in assessee’s own case for the assessment year 2007-08 to 2009-10 and thereafter, the Tribunal has restored the matter back to the file of the AO for fresh decision in accordance with law. Accordingly, in the present year also, we set aside the order of the ld. CIT(A) on this issue and restore this matter back to the file of the AO for fresh decision in accordance with law with same directions as were given by the tribunal in assessment year 2010-11.
In the result, both the appeals of the revenue are allowed for statistical purposes.
Order pronounced in the open court on the date mentioned on the caption page.