M/s. Dhanush Technologies Ltd.,, CHENNAI v. ACIT,, CHENNAI

ITA 1006/CHNY/2012 | 2008-2009
Pronouncement Date: 31-07-2014

Appeal Details

RSA Number 100621714 RSA 2012
Assessee PAN AABCD3429L
Bench Chennai
Appeal Number ITA 1006/CHNY/2012
Duration Of Justice 2 year(s) 2 month(s) 23 day(s)
Appellant M/s. Dhanush Technologies Ltd.,, CHENNAI
Respondent ACIT,, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2014
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 31-07-2014
Date Of Final Hearing 11-06-2014
Next Hearing Date 11-06-2014
Assessment Year 2008-2009
Appeal Filed On 07-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH CHE NNAI . . . !' # $! % BEFORE DR. O.K. NARAYANAN VICE PRESIDENT & SHRI VIKAS AWASTHY JUDICIAL MEMBER I.T.A. NO.155/MDS/2011 ASSESSMENT YEAR : 2006-07 I.T.A. NOS.1005 & 1006/MDS/2012 ASSESSMENT YEARS : 2007-08 & 2008-09 M/S.DHANUSH TECHNOLOGIES LTD. NEW NO.20 OLD NO.6 SENGUNTHAR STREET SHENOY NAGAR CHENNAI 600 030 [PAN: AABCD 3429 L] ( '& /APPELLANT) VS THE INCOME TAX OFFICER COMPANY WARD-I(1) / ASST. COMMISSIONER OF INCOME TAX COMPANY CIRCLE-1(4) CHENNAI ( '('& /RESPONDENT) / APPELLANT BY : SHRI G.GOPALAN / RESPONDENT BY : SHRI N. RENGARAJ CIT / DATE OF HEARING : 11-06-2014 / DATE OF PRONOUNCEMENT : 31-07-2014 $) / O R D E R PER VIKAS AWASTHY J.M: THE APPEALS HAVE BEEN FILED BY THE ASSESSEE ASSAIL ING THE ORDERS OF THE COMMISSIONER OF INCOME TAX(APPEALS)-I II CHENNAI I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 2 RELEVANT TO THE ASSESSMENT YEARS (AYS) 2006-07 DT. 06-10-2010 AND FOR THE AYS.2007-08 & 2008-09 DT.20-02-2012. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF SOFTWARE DEVELOPMENT AND SELLING OF V-TEL CARDS. F OR THE AY.2006-07 THE ASSESSEE FILED ITS RETURN OF INCOME ON 21-12-2006 DECLARING TOTAL INCOME OF ` 3 39 38 191/-. THE ASSESSEE IN ITS RETURN OF INCOME HAD CLAIMED DEDUCTION U/S.10A OF T HE INCOME TAX ACT 1961 (HEREIN AFTER REFERRED TO AS THE ACT). THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.1 43(2) WAS ISSUED. THE ASSESSING OFFICER VIDE ASSESSMENT ORDE R DT.31-12- 2008 HELD THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAI M DEDUCTION U/S.10A INTER ALIA FOR THE FOLLOWING REASONS: I. THE ASSESSEE HAS NOT FILED SPECIAL AUDIT REPORT IN THE PRESCRIBED FORM NO.56F; II. THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE TO S HOW THAT THE EXPORT PROCEEDS WERE RECEIVED IN-CONVERTIB LE FOREIGN EXCHANGE WITHIN THE PERIOD OF SIX MONTHS FR OM THE END OF THE FINANCIAL YEAR (FY) I.E. THE TIME L IMIT SPECIFIED U/S.10A; I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 3 III. THE ASSESSEE HAD NOT FURNISHED THE COPY OF STP I REGISTRATION CERTIFICATE TO SHOW THAT A NEW UNDERTA KING WAS ESTABLISHED DURING THE YEAR; AND IV. THE DUE DATE OF FILING RETURN OF INCOME FOR THE AY.2006- 07 U/S.139(1) OF THE ACT WAS 30-11-2006. WHEREAS T HE ASSESSEE HAD FILED ITS E-RETURN ON 21-12-2006. 3. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE ASSESSEE HAD CLAIMED AN AMOUNT OF ` 2.40 CRORES AS CHANNEL DISTRIBUTION EXPENSES FOR DISTRIBUTING V-TEL CONNECTIONS. THE A SSESSEE NEITHER DEDUCTED TAX AT SOURCE ON THE PAYMENTS OF SUCH EXPE NSES NOR THE DETAILS OF THE PARTIES TO WHOM SUCH PAYMENTS WERE M ADE WERE FURNISHED THE ASSESSING OFFICER DIS-ALLOWED SAID E XPENSES U/S.40A(IA) OF THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER DT.31-12-2008 T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(APPEALS ). THE CIT(APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EXAMINING THE REMAND REPORT FROM THE ASSESSING OFFICER DISMISSED THE APPEAL OF THE ASSESSEE IN TOTO. NOW THE ASSESSEE HAS COME IN SECOND APPEAL BEFORE THE TRIBUNAL. I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 4 4. FOR THE AY.2007-08 & 2008-09 THE ASSESSEE HAS C OME IN SECOND APPEAL ASSAILING THE EX-PARTE ORDER OF CIT(A PPEALS) FOR BOTH THE AYS. THE APPEALS OF THE ASSESSEE FOR THE AYS.2007-08 & 2008-09 WERE DISMISSED BY THE CIT(APPEALS) FOR NON- PROSECUTION. 5. SHRI G.GOPALAN APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT THE ASSESSEE HAD FILED MANUAL RETURN OF INCOME FOR THE AY.2006-07 ON 30-11-2006. THEREAFTER THE ASSE SSEE FILED ELECTRONIC RETURN FOR THE AY UNDER CONSIDERATION ON 21-12-2006. THE DELAY IN FILING E-RETURN WAS ONLY A PROCEDURAL LAPSE. THE ASSESSEE HAD COMPLIED WITH THE SUBSTANTIVE PROVISIO N BY FILING MANUAL RETURN WITHIN THE PRESCRIBED TIME LIMIT. AS FAR AS AYS.2007- 08 & 2008-09 ARE CONCERNED THE LD.AR SUBMITTED THA T THE CIT(APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESS EE FOR BOTH THE AYS FOR NON-PROSECUTION. THE AUTHORISED REPRES ENTATIVE OF THE ASSESSEE WAS NOT KEEPING GOOD HEALTH. SUBSEQUE NTLY HE DIED ON ACCOUNT OF ILL-HEALTH. THE CASE OF THE ASSESSEE COULD NOT BE REPRESENTED PROPERLY BEFORE THE CIT(APPEALS). NO OTHER ISSUE WAS RAISED BY THE LD.AR OF THE ASSES SEE FROM THE GROUND OF APPEAL FILED BEFORE THE TRIBUNAL. I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 5 6. ON THE OTHER HAND SHRI N.RENGARAJ APPEARING ON BEHALF OF THE REVENUE SUBMITTED THAT THE CONTENTION OF THE AS SESSEE THAT THE MANUAL RETURN WAS FILED WITHIN THE TIME LIMIT P RESCRIBED UNDER THE ACT IS ABSOLUTELY WRONG. THE LD.DR REFERRED TO PAGE NO.8 OF THE ORDER OF CIT(APPEALS) WHERE THE CIT(APPEALS) H AS CONSIDERED THESE SUBMISSIONS OF THE ASSESSEE. IN THE REMAND R EPORT THE ASSESSING OFFICER HAS CATEGORICALLY STATED THAT THE RETURNS RECEIVED DURING THE PERIOD 28-11-2006 TO 08-12-2006 BEAR ACKNOWLEDGMENT NUMBER STARTING FROM SR.NO.000000076 5 TO 0000001085. WHEREAS THE ACKNOWLEDGMENT NUMBER OF T HE ASSESSEE IS 5304000051 WHICH IS UN-RELATED TO THE SERIAL NUMBERS OF ACKNOWLEDGMENT OF RETURNS FILED WITH THE CONCERN ED ACIT OF THE CIRCLE. FURTHER IN THE ACKNOWLEDGMENT GIVEN BY TH E ASSESSEE IT IS MENTIONED RETURN RECEIPT. WHEREAS IN ALL THE AC KNOWLEDGMENTS THAT THE ASSESSING OFFICER HAS ENCLOSED IT IS MENTI ONED TAPAL RECEIPTS. NEITHER THE NUMBERS NOR THE DESCRIPTION OF ACKNOWLEDGMENT PRODUCED BY THE ASSESSEE MATCH WITH THAT OF THE OFFICE OF THE CONCERNED ACIT OF THE CIRCLE. THUS THE FACTUM OF FILING OF MANUAL RETURN IS QUESTIONABLE. THE LD.DR FURTHER SUBMITTED THAT AFTER THE INSERTION OF PROVISO BY TH E FINANCE ACT 2005 W.E.F.01-04-2006 IT IS MANDATORY FOR ALL THE ASSESSEES WHO ARE CLAIMING DEDUCTION U/S.10A TO FURNISH RETURN O F INCOME ON OR I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 6 BEFORE DUE DATE SPECIFIED U/S.139(1) OF THE ACT. A S PER THE PROVISIONS OF THE ACT AS APPLICABLE FOR THE AY UNDE R CONSIDERATION THE DUE DATE OF FILING OF THE RETURN WAS 30-11-2006 . THE ASSESSEE FILED E-RETURN OF INCOME ON 21-12-2006. THE LD.DR FURTHER POINTED OUT THAT THE ASSESSING OFFICER HAS MENTIONED SEVERA L OTHER SHORTCOMINGS IN THE CLAIM OF THE ASSESSEE. THE ASS ESSEE HAS NOT FURNISHED SPECIAL AUDIT REPORT IN FORM NO.56F NO E VIDENCE HAS BEEN FILED TO SHOW THAT FOREIGN EXCHANGE WAS REMITT ED WITHIN THE TIME LIMIT COPY OF STPI CERTIFICATE WAS NOT FURNIS HED ETC. AS FAR AS AYS.2007-08 & 2008-09 ARE CONCERNED THE LD.DR CONTENDED THAT THE ASSESSEE HAS BEEN NEGLIGENT IN P URSUING APPEALS DESPITE REPEATED OPPORTUNITIES. THE ASSESS EE DID NOT FILE ANY EVIDENCE OR FURNISHED ANY EXPLANATION IN SUPPOR T OF GROUNDS RAISED BEFORE THE CIT(APPEALS). THE LD.DR VEHEMENT LY SUPPORTED THE IMPUGNED ORDERS AND PRAYED FOR DISMISSING THE A PPEALS OF THE ASSESSEE. 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. FOR THE AY.2006-07 THE LD. AR OF THE ASSESSEE HAS CONTENDED THAT THE MANUAL RETURN WAS F ILED WITHIN THE TIME LIMIT SPECIFIED U/S.139(1) OF THE ACT I.E. ON 30-11-2006. I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 7 THEREAFTER E-RETURN WAS ALSO FILED ON 21-12-2006. THERE WAS DELAY OF 21 DAYS IN FILING OF E-RETURN AS THE ASSES SEE WAS NOT AWARE THAT THE RETURN HAD TO BE FILED ELECTRONICALL Y. AS SOON AS IT CAME TO THE KNOWLEDGE OF THE ASSESSEE THAT THE RETU RN HAS TO BE FILED ELECTRONICALLY THE SAME WAS FILED ON 21-12-2 006 WITHOUT FURTHER DELAY. HOWEVER THE REVENUE HAS DISPUTED T HE FILING OF MANUAL RETURN ON BEHALF OF THE ASSESSEE. THE ASSES SING OFFICER IN THE REMAND REPORT HAS QUESTIONED THE VERACITY OF AC KNOWLEDGMENT PRODUCED BY THE ASSESSEE. IT HAS BEEN SPECIFICALLY POINTED OUT THAT THE ACKNOWLEDGMENT NUMBER AND THE DESCRIPTION PRODUCED BY THE ASSESSEE DO NOT MATCH WITH THE ACKNOWLEDGMENT N UMBER SERIES AND THE DESCRIPTION OF ACKNOWLEDGMENT GIVEN BY THE OFFICE OF ACIT OF THE CIRCLE. THUS THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE COGENT EVIDENCE OF FILING OF RETURN WITHIN STATUTORY TIME LIMIT. FROM PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT IT IS NOT THE DELAY IN FILING OF THE RETURN AL ONE WHICH HAS MADE THE ASSESSEE INELIGIBLE TO CLAIM DEDUCTION U/S.10A. THE ASSESSEE HAS NOT BEEN ABLE TO COMPLY WITH OTHER CONDITIONS A S LAID DOWN IN THE SECTION TO BE ELIGIBLE TO CLAIM DEDUCTION. THE ASSESSEE WAS NOT ABLE TO FURNISH A COPY OF SPECIAL AUDIT REPORT IN THE PRESCRIBED FORM; NO EVIDENCE WAS BROUGHT TO SHOW THAT THE EXP ORT PROCEEDS I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 8 WERE RECEIVED IN INDIA IN CONVERTIBLE FOREIGN EXCHA NGE WITHIN THE SPECIFIED TIME NO EVIDENCE WAS BROUGHT ON RECORD T O SHOW THAT ASSESSEE WAS RENDERING SERVICES FROM STPI UNIT. AL THOUGH THE ASSESSEE HAS SUBMITTED BEFORE THE CIT(APPEALS) THAT FORM NO.56F WAS FILED ALONG WITH THE MANUAL RETURN OF IN COME HOWEVER THE CIT(APPEALS) HAS CAST SERIOUS ASPERSIONS ON THE VERACITY OF AUDIT REPORT FILED ALONG THE ALLEGED MANUAL RETURN. THERE ARE CONDITIONS IN THE DATE OF RECEIVING PAYMENTS AND DA TE OF SIGNING OF THE REPORT. SINCE THE ASSESSEE HAS FAILED TO COMPL Y WITH THE PROVISIONS OF SECTION WE ARE OF THE CONSIDERED OPI NION THAT THE ASSESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S .10A OF THE ACT. ACCORDINGLY THIS APPEAL OF THE ASSESSEE IS DISMISS ED. 8. AS FAR AS THE APPEALS OF THE ASSESSEE FOR THE AY S.2007-08 & 2008-09 ARE CONCERNED WE FIND THAT THE CIT(APPEALS ) HAS DISMISSED THE APPEALS OF THE ASSESSEE FOR NON-PROSE CUTION. IN THE INTEREST OF JUSTICE BOTH THE FILES ARE REMITTED BA CK TO THE CIT(APPEALS) FOR DECIDING THE APPEALS OF THE ASSESS EE ON MERITS. THE CIT(APPEALS) SHALL GIVE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEREAFTER PASS ORDERS IN ACCORDANCE W ITH LAW. BOTH THE APPEALS OF THE ASSESSEE FOR THE AYS.2007- 08 & 2008-09 ARE ALLOWED FOR STATISTICAL PURPOSE. I.T.A. NOS. 155/MDS/11 1005 & 1006/MDS/12 9 9. IN THE RESULT ITA NO.155/2011 FOR THE AY.2006-0 7 IS DISMISSED AND ITA NOS.1005 & 1006/2012 FOR THE AYS. 2007-08 AND 2008-09 RESPECTIVELY ARE ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED ON THURSDAY THE 31 ST JULY 2014 AT CHENNAI. SD/- SD/- ( . . . ) ( !' ) (DR. O.K. NARAYANAN) (VIKAS AWAS THY) / VICE PRESIDENT ! '# / JUDICIAL MEMBER $ /CHENNAI %'& /DATED: 31 ST JULY 2014 TNMM ''(!)*+* /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ' ' -. /CIT(A) 4. ' ' /CIT 5. */0!!12 /DR 6. 0345 /GF