Stex Software Pvt. Ltd., Mumbai vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri B. P. Jain, AM] I.T.A No. 484/Kol/2012 Assessment Year: 2006-07 Stex Software Pvt. Ltd. (Now merged with Vs. Deputy Commissioner of Income-tax- 3i Infotech Limited (PAN: AADCS6708F) Circle-2, Kolkata. (Appellant) (Respondent) Date of hearing: 16.06.2015 Date of pronouncement: 16.06.2015

For the Appellant: Shri Arvind Agarwal, Advocate For the Respondent: Smt. Ranu Biswas, JCIT ORDER Per Shri Mahavir Singh, JM:

This appeal by assessee is arising out of order of CIT(A)-1, Kolkata, vide Appeal No. 630/CIT(A)/Cir-2/09-10 dated 12.12.2011. Assessment was framed by DCIT, Circle-2, Kolkata u/s. 147 r.w.s. 143(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2006-07 vide his order dated 21.12.2009.

2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the disallowance made by AO for claim of deduction u/s. 80IB of the Act. For this, assessee has raised following ground no.1:

"1. The Ld. CIT(A) has upheld the disallowance made by the assessing officer and thereby erred in disallowing the claim of the assessee u/s. 80IB of the I. T. Act, 1961 of Rs.12,22,702/-."

3. At the outset, Ld. Counsel for the assessee took us to the assessment order page 2, 1st para, which reads as under:

"Mr. R. K. Venkateshan, FCA & A/R of the assessee appeared and submitted that the return originally filed may be treated as in response to notice u/s. 148 and made submissions. In respect of AY 2006-07, the assessee had itself submitted revised computation withdrawing claim of Sec. 80IB. There is no reason why the uniformity shall not be made in respect of this year. Accordingly, following similar line, the claim of deduction u/s. 80IB of Rs.12,22,702/- is denied."

Then he took us to the finding of CIT(A) in para 4.2, which reads as under:

"4.2. Since the appellant itself has submitted revised computation for withdrawing claim of section 80IB during the assessment proceedings, the appellant fails to get the relief on this issue."

4. Ld. Counsel for the assessee stated that none of the authorities below have considered the issue on merits and simply disallowed deduction u/s. 80IB of the Act on the premise that the assessee's counsel has withdrawn the claim in revised computation before the AO for making disallowance and hence, he argued that the authorities below should have considered the issue on merits and not merely the concession given by assessee. According to him, there is no question of any concession to the lower authorities against law. On query from the Bench, Ld. Sr. DR could not explain how the deduction u/s. 80IB can be disallowed only on the concession of the assessee. The AO should examine the merits of the case and decide the issue afresh. We 2 ITA No.484/K/2012 Stex Software Pvt. Ltd. AY 2006-07

set aside the orders of the lower authorities and remand the matter back to the file of AO for fresh adjudication after allowing opportunity of hearing and particularly to produce the evidence that there is a manufacturing unit or not. In terms of the above, appeal of assessee is allowed for statistical purposes.

5. In the result, appeal of assessee is allowed for statistical purposes.

6. Order is pronounced in the open court on 16.06.2015 Sd/- Sd/-

(B. P. Jain) (Mahavir Singh) Accountant Member Judicial Member

Dated : 16th June, 2015

Jd.(Sr.P.S.)

Copy of the order forwarded to:

1. Stex Software Pvt. Ltd. (Now merged with 3i Infotech Ltd.), 6th floor, Akruti Cengtre Point, MIDC Central Road, Next to Marol Telephone Exchange, Andheri (East), Mumbai-400093.

2. DCIT, Circle-2, Kolkata.

3. CIT(A) , Kolkata.

4. CIT, Kolkata

5. DR, ITAT, Kolkata.

True copy By Order

Assistant Registrar, ITAT, Kolkata.