Stex Software Pvt. Ltd., Mumbai v. ITO, Ward-2(4), Kolkata, Kolkata

ITA 481/KOL/2012 | 1999-2000
Pronouncement Date: 30-04-2015

Appeal Details

RSA Number 48123514 RSA 2012
Assessee PAN AADCS6708F
Bench Kolkata
Appeal Number ITA 481/KOL/2012
Duration Of Justice 3 year(s) 1 month(s) 1 day(s)
Appellant Stex Software Pvt. Ltd., Mumbai
Respondent ITO, Ward-2(4), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 30-04-2015
Assessment Year 1999-2000
Appeal Filed On 29-03-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH JM & SHRI B. P. JAIN AM ] I.T.A NO S . 481 TO 483 /KOL/20 12 ASSESSMENT YEAR S : 1999 - 2000 TO 2001 - 02 3I INFOTECH LTD. (FORMERLY STEX VS. INCOME - TAX OFFICER WD - 2(4) KOLKATA SOFTWARE PVT. LTD.) (PAN: AADCS6708F) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 30 .0 4 .2015 DATE OF PRONOUNCEMENT: 30 . 04 . 2015 FOR THE APPELLANT: SHRI ARVIND AGARWAL ADVOCATE FOR THE RESPONDENT: S HRI SANJAY ADDL. CIT SR. DR ORDER PER BENCH: ALL THESE APPEAL S BY ASSESSEE ARE ARISING OUT OF SEPARATE ORDER S OF CIT(A) - I KOLKATA IN APPEAL NO S . 307 TO 309 / CIT(A) /WD - 2(4)/07 - 08 DATED 1 2 . 12 .20 11 . ASSESSMENT S W ERE FRAMED BY ITO WARD - 2 ( 4 ) KOLKATA U/S. 143(3) /147 OF THE INCOME - TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR S 1999 - 2000 TO 200 1 - 0 2 VIDE HIS SEPARATE ORDER S DATED 22 .12.200 6 . 2. THE ONLY ISSUE IN TH ESE THREE APPEAL S OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE A CTION OF AO IN MAKING DISALLOWANCE U/S. 80IA OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS ALREADY CLAIMED DEDUCTION U/S. 80HHE OF THE ACT. FOR THIS ASSESSEE HAS RAISED IDENTICALLY WORDED GROUND FOR ALL THE YEARS AND GROUND RAISED IN AY 1999 - 2000 READS A S UNDER: 1 . THE LD. CIT(A) HAS UPHELD THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 80IA OF RS.7 63 097/ - AS CLAIMED BY THE ASSESSEE ON THE ALLEGED GROUND THAT ONCE THE ASSESSEE CLAIMED DEDUCTION U/S. 80HHE NO DEDUCTION U/S. 80IA CAN BE ALLOWED. 3 . BRIEFLY STATED FACTS ARE THAT THE AO IN ALL THE THREE YEARS DISALLOWED THE CLAIM OF DEDUCTION U/S. 80IA IN VIEW OF THE FACT THAT THE ASSESSEE HAS ALREADY CLAIMED DEDUCTION U/S. 80HHE OF THE ACT. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO CONFIRMED THE ACTION OF AO VIDE PARA 5.3 OF HIS APPELLATE ORDER AS UNDER: 5.3 THE APPELLANT HAS FILED THE APPEAL AND ASKING FOR RELIEF ON THE GROUND THAT THE 2 ITA NO S . 481 - 483 /K/201 2 3I INFOTECH LTD. AY S 1900 - 2000 TO 200 1 - 0 2 DISALLOWANCES MADE BY THE AO IS BASED ON HIS SURMISE AND GUESSES AND ARE CONTRARY TO THE LAW . THE A.O. HAS DISALLOWED THE CLAIM OF THE DEDUCTION U/S. 80IB IN VIEW OF THE FACT THAT THE APPELLANT HAS ALREADY AVAILED THE CLAIM OF DEDUCTION U/S. 80HHE AND THUS AS PER PROVISIONS OF SECTION 80HHE THE APPELLANT IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IA OF THE ACT. THE APPELLANT HAS FAILED TO CONTROVERT THE BASIS OF THE DISALLOWANCES MADE BY THE AO. THUS THE ACTION OF THE AO IS UPHELD AND THE APPELLANT FAILS TO GET RELIEF ON THIS ISSUE. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE US. 4. WE HAVE H EARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE FACTS ARE UNDISPUTED. WE FIND THAT THIS ISSUE IS NOW SQUARELY COVERED BY THE DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ATUL INTERMEDIATE TAX APPEAL NO. 508 OF 2007 DATED 25.03.2014 WHEREIN THE ISSUE DISCUSSED IS THAT WHETHER THE ASSESSEE CAN CLAIM DEDUCTION U/S 80HHC OF THE ACT IGNORING THE DEDUCTION ALREADY CLAIMED AND ALLOWED U/S 80IA OF THE ACT UNLESS AND UNTIL THE COMBINED EFFECT OF THE DEDUCTIONS FLOWING FROM BOTH THE SECTIONS IS TO EXCEED THE PROFIT AND GAIN OF THE ELIGIBLE BUSINESS OF THE UNDERTAKING OR ENTERPRISE. THE SPECIAL BE NCH OF THIS TRIBUNAL IN ROGINI GARMENTS 294 ITR (AT) 15 (CHENNAI) (SB) & HINDUSTAN MINT AND AGRO PRODUCTS 315 ITR 401 (DELHI) (SB) AS WELL AS HON'BLE HIGH COURTS IN GREAT EASTERN EXPORTS (DEL) 332 ITR 14 OLAM EXPORTS 332 ITR 40 (KER) & BROADWAY OVERSEAS 41 TAXMANN.COM 75 (P&H) DECIDED IN FAVOUR OF THE DEPARTMENT AND HELD THAT IF AN ASSESSEE HAS CLAIMED DEDUCT ION OF PROFIT OR GAINS U/S 80IB DEDUCTION TO THAT EXTENT IS NOT TO BE ALLOWED U/S 80HHC. HOWEVER THE HIGH COURTS IN ASSOCIATED CAPSULES 332 ITR 42 (BOM) & MILLIPORE INDIA 341 ITR 219 (KAR) DECIDED IN FAVOUR OF THE ASSESSEE AND HELD THAT THE EFFECT OF S. 80 - IA(9) WAS ONLY TO ENSURE THAT THE AGGREGATE DEDUCTION DID NOT EXCEED THE PROFITS OF THE ELIGIBLE BUSINESS. HON'BLE HIGH COURT DECID ED THE ISSUE IN FAVOUR OF THE DEPARTMENT BY HOLDING THAT SUB - SECTION (9) OF S. 80IA IS AIMED AT RESTRICTING THE SUCCESSIVE CLAIMS OF DEDUCTION OF THE SAME PROFIT OR GAIN UNDER DIFFERENT PROVISIONS CONTAINED IN SUB - CHAPTER C OF CHAPTER VI OF THE ACT. THIS PROVISION THEREFORE NECESSARILY IMPACTS OTHER DEDUCTION PROVISIONS INCLUDING S. 80HHC OF THE ACT. NOTHING CONTAINED IN S. 80HHC SUGGESTS THAT THE DEDUCTION PROVIDED THEREIN WAS IMMUNE FROM ANY OUTSIDE INFLUENCE OR THAT THE PROVISION WAS IMPREGNABLE BY ANY OTHER STATUTE OR ENACTMENT. ACCEPTING ANY SUCH THEORY WOULD LEAD TO INCONGRUOUS RESULTS. EVEN THE ASSESSEE CONCEDES THAT SUB - SECTION (9) OF S. 80IA WOULD OPERATE AS TO LIMITING 3 ITA NO S . 481 - 483 /K/201 2 3I INFOTECH LTD. AY S 1900 - 2000 TO 200 1 - 0 2 THE COMBINED DEDUCTIONS TO A MAXIMUM OF THE PROFITS AND GAINS FROM AN ELIGIBLE BUSINESS OF THE UNDERTAKING OR ENTERPRISE. IF S. 80HHC CONTAINED A PROTECTIVE SHELL MAKING IT IMMUNE FROM ANY OUTSIDE INF LUENCE EVEN THIS EFFECT OF SUB - SECTION (9) OF S. 80IA COULD NOT BE APPLIED. THIS WOULD COMPLETELY RENDER THE PROVISIONS OF SUB - SECTION (9) OF S. 80IA REDUNDANT AND MEANINGLESS. IN VIEW OF TH IS PRINCIPLE LAID DOWN BY HON BLE GUJARAT HIGH COURT WE SET ASID E THIS ISSUE TO THE FILE OF AO WITH A SPECIFIC DIRECTION THAT HE WILL ALLOW THE PROPORTIONATE RELIEF AS PRINCIPALLY DECIDED BY HON BLE GUJARAT HIGH COURT IN THE CASE OF ATUL INTERMEDIATE SUPRA. ACCORDINGLY THESE THREE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT ALL THE APPEAL S OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . SD/ - SD/ - ( B. P. JAIN ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 30TH APRIL 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT 3I INFOTECH LTD. 6 TH FLOOR AKRUTI CENTRE POINT MIDC CENTRAL ROAD NEXT TO MAROL TELEPHONE EXCHANGE ANDHERI (EAST) MUMBAI - 400 093. 2 RESPONDENT ITO WARD - 2(4) KOLKATA. 3 . THE CIT (A) KOLKATA 4. 5. CIT KOLKATA DR KOLKATA BENCHES KOLKATA / TRUE COPY BY ORDER ASSTT. REGISTRAR .