DCIT, New Delhi v. M/s. Birla Soft (India) Ltd., New Delhi

ITA 4244/DEL/2011 | 2003-2004
Pronouncement Date: 23-11-2011 | Result: Allowed

Appeal Details

RSA Number 424420114 RSA 2011
Assessee PAN AAACB2769E
Bench Delhi
Appeal Number ITA 4244/DEL/2011
Duration Of Justice 2 month(s)
Appellant DCIT, New Delhi
Respondent M/s. Birla Soft (India) Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 23-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 23-11-2011
Date Of Final Hearing 23-11-2011
Next Hearing Date 23-11-2011
Assessment Year 2003-2004
Appeal Filed On 22-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.N. PAHUJA ACCOUNTANT MEMBER ITA NO.4244/DEL/2011 ASSESSMENT YEAR : 2003-04 DCIT CIRCLE 3 (1) NEW DELHI. VS. BIRLA SOFT (INDIA) LTD. 8 TH FLOOR BIRLA TOWERS 25 BARAKHAMBA ROAD NEW DELHI. PAN : AAACB2769E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY VOHRA & SHRI ABHISHEK AGGARWAL ADVOCATES REVENUE BY : MRS. ANUSHA KHURANA SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 5 TH JULY 2011 FOR ASSESSMENT YEAR 2003-04. 2. THE IMPUGNED ORDER HAS BEEN PASSED BY THE CIT (A) A S PER DIRECTIONS GIVEN BY THE TRIBUNAL VIDE ITS ORDER DATED 27 TH MARCH 2009 THROUGH WHICH VIDE PARA 2.11 LEARNED CIT (A) WAS DI RECTED TO LIMIT ADJUDICATION OF THE ISSUE REGARDING TREATMENT TO BE G IVEN TO THE LOSS OF THE OLD UNIT WHICH WAS ALSO ENTITLED FOR DEDUCTION U/ S 10A. LEARNED CIT (A) HAS PASSED THE ORDER IN PURSUANCE OF AFOREMENTIONED DIRECTIONS OF THE TRIBUNAL. LEARNED CIT (A) HAS MADE OUT A CHART SHOWING THE UNIT- WISE POSITION OF INCOME WHICH FOR THE SAKE OF CONVENI ENCE IS REPRODUCED HEREIN BELOW:- ITA NO.4244/DEL/2011 2 UNITS FIRST STP UNIT (ELIGIBLE FOR DEDUCTION U/S 10A) GE-GDC UNIT (ELIGIBLE FOR DEDUCTION U/S 10A) SINGAPORE (NON 10A) AUSTRALIA (NON 10A) TAXABLE INCOME (AFTER ADJUSTMENTS UNDER SECTION 28 TO 43C AND DEDUCTION U/S 10A BUT BEFORE SET OF LOSS UNDER SECTION 70 OF THE ACT AND ) (13 57 347) 1 37 73 082 (35 90 252) 61 36 038 LESS : SET OFF OF LOSS OF FIRST STP UNIT AND SINGAPORE BRANCH UNDER SECTION 70 OF THE ACT. - - - (49 47 599) TAXABLE INCOME AFTER SET OF LOSS UNDER SECTION 70 OF THE ACT AND BEFORE SET OF LOSS UNDER SECTION 72 OF THE ACT. - 1 37 73 082 - 11 88 439 LESS : SET OF THE BROUGHT FORWARD LOSSES UNDER SECTION 72 OF THE ACT - 1 37 73 082 - 11 88 439 PROFIT AND GAINS FROM BUSINESS AND PROFESSION - - - NIL 3. THE ISSUE WHICH HAS BEEN DECIDED BY THE LEARNED CIT (A) IS WITH REGARD TO FIRST STP UNIT ELIGIBLE FOR DEDUCTION U/S 1 0A WHICH HAS INCURRED A LOSS OF 13 57 347/- WHICH HE HAS HELD THAT THE SAID LOSS HAS TO BE SET OFF FROM THE NON-ELIGIBLE UNDERTAKINGS U/S 1 0A AT AUSTRALIA OF THE ASSESSEE. AGAINST THE AFOREMENTIONED FINDINGS OF THE CIT (A) THIS APPEAL HAS BEEN FILED BY THE REVENUE ON THE FOLLOWIN G GROUNDS:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED CIT (A) HAS ERRED IN LAW AND ON FACTS IN DECIDING THA T THE LOSSES OF RS.1357347/- OF THE FIRST STP UNIT WHICH WAS ELIGIB LE FOR DEDUCTION U/S 10A IS ELIGIBLE TO BE SET OFF FROM NON-E LIGIBLE UNDERTAKING AT AUSTRALIA OF THE ASSESSEE IGNORING THAT : ITA NO.4244/DEL/2011 3 A) THE ASSESSEE IN ITS STATEMENT OF COMPUTATION OF TOTAL INC OME AHS NOT CLAIMED THE SET OFF OF THE LOSS AGAINST ITS INCOM E FROM NON-ELIGIBLE SOURCES OR AGAINST THE INCOME OF THE NEW STP UNIT. B) WITHOUT PREJUDICE TO THE ABOVE EVEN ON MERITS THE LEAR NED CIT (A)S JUDGEMENT IS INCORRECT BECAUSE THE LOSS OF A N STP UNIT THE INCOME FROM WHICH NOT TAXABLE CANNOT BE SET OFF AGAINST THE INCOME OF A TAXABLE UNIT. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND MODIFY ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 4. AT THE OUTSET IT WAS SUBMITTED BY THE LEARNED AR T HAT SIMILAR ISSUE WAS LATER ON CONSIDERED BY THE TRIBUNAL IN THE CA SE OF THE ASSESSEE FOR ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 20 TH JANUARY 2011 PASSED IN ITA NO.3839/DEL/2010 WHEREIN AFTER CON SIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE LEARNED DR IT WAS HELD BY THE TRIBUNAL THAT THE PROVISIONS OF SECTION 10A ARE IN TH E NATURE OF DEDUCTION PROVISIONS AND NOT EXEMPTION AND IN THE LIG HT OF THE SAID OBSERVATIONS THE TRIBUNAL HAD RESTORED THE MATTER BAC K TO THE FILE OF ASSESSING OFFICER TO RE-COMPUTE THE TOTAL INCOME OF THE ASSESSEE. HE IN THIS REGARD REFERRED TO THE OBSERVATIONS OF THE TR IBUNAL IN PARA 6.4 OF THE SAID ORDER DATED 20 TH JANUARY 2011 WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED BELOW:- 6.4 WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE THROU GH THE AFORESAID DECISIONS. RESPECTFULLY FOLLOWING THE A FORESAID DECISIONS WE RESTORE THE MATTER BACK TO THE FILE OF THE A .O. FOR HIS FRESH COMPUTATION BY TREATING THE PROVISIONS OF SEC. 10A TO BE IN THE NATURE OF DEDUCTION PROVISION AND NOT EXEMPTION. THE A.O. SHALL RE-COMPUTE THE TOTAL INCOME OF THE ASSESSEE I N THE LIGHT OF THE AFORESAID DECISIONS AFTER PROVIDING REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESS EE SHALL FURNISH A FRESH COMPUTATION OF INCOME TO THE A.O. IN THE LIGHT OF THE PRINCIPLES AND PROPOSITIONS LAID DOWN IN THE CASES REFERRED TO HEREINABOVE. WE ORDER ACCORDINGLY. 5. IN VIEW OF THE AFOREMENTIONED DISCUSSION AFTER HEA RING BOTH THE PARTIES WE PASS SIMILAR DIRECTIONS AS THE ISSUE INVOLVED I S IDENTICAL AND ITA NO.4244/DEL/2011 4 THE EARLIER ORDER OF THE TRIBUNAL HAS TO BE FOLLOWED . WE DIRECT THE ASSESSING OFFICER TO RE-COMPUTE THE TOTAL INCOME OF THE ASSESSEE AS PER DIRECTIONS GIVEN BY THE TRIBUNAL IN PARA 6.4 OF THE ORDER DATED 20 TH JANUARY 2011 AND IN THIS MANNER THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID . 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES THE ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.201 1. SD/- SD/- [A.N. PAHUJA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 23.11.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES ITA NO.4244/DEL/2011 5 DATE OF DICTATION 23.11.2011 DATE OF PRESENTATION OF THE DRAFT ORDER TO THE MEMBER 24.11.2011 DATE OF RETURN FROM THE BENCH AFTER PRONOUNCEMENT &SIGNING DATE OF DISPATCH OF THE ORDER TO THE BENCH