The Pr. Commissioner of Income Tax-21 v. Akshay Bharadwaj

3. These three appeals by the Revenue are directed against the common order dated 21®^ May,2015 passed by the Income Tax Appellate Tribunal (TTAT')in ITA Nos.3028,3029,3030/Del/2013 for the Assessment Years ('AY')2005-06,2006-07 and 2009-10. I I I

4. At the outset Mr Shivpuri, learned Senior Standing Counsel for the Revenue,points outthat although the tax effect as far as AY 2005-06 is less than the minimum monetary limit ofRs.20 lakhs as stipulated in the latest Circular No.21/2015 dated lO"^ December, 2015 of the Central Board of Direct Taxes(CBDT),since the impugned order ofthe ITAT is common to three AYs, and the aggregate tax effect for the three AYs exceeds Rs. 20 lakhs,these three appeals are nevertheless maintainable.!

5. The Courthas examined the appeals on merits. The ground urged is that the ITAT erred in affirming the order ofthe Commissioner ofIncome Tax (Appeals) [CIT(A)] which deleted the addition mad!e by the Assessing Officer(AO)on account ofthe disallowance ofthe exemption claimed by the Assessee under Section 1OB ofthe Act. I

6. The Assessee is a doctor by profession. He also claimed to have earned income through export of computer software from a unit registered in the ITA Nos.956-58/2015 Page2of[5] Software Technology Parks of India ('STPI') as an export oriented unit (EOU). He was also been granted a Green Card for that purpose. In the initial return filed for the AYs in question, the Assessee sought exemption [ under Section lOB of the Act in respect of the aforementioned export income. The AO, however, rejected the claim on the ground that the registration certificate ofthe EOU was not issued by the Board appointed by the Central Government under Section 14 of the Industrial (Development and Regulation)Act,1951. i

7. Before the CIT(A), the Assessee raised an additional ground that the exemption ought to have been granted under Section lOA ofthe Act. The Assessee also furnished an audit report in Form No.56F to revise his claim i to one under Section 10 A.The CIT(A)then called for a remand reportfrom the AO.The AO objected that in order to avail the exemption under Section 10 A, an Assessee had to file the report in Form No.56F along with the return in terms ofRule 16B ofthe Income Tax Rules, 1962.Referring to the decisionoftheSupremeCourtinGoetze(India)Ltd.v.|CIT(2006)284ITR 323(SC) the AO took the stand that since the Assessee had not claimed the I exemption when he filed the original return, he could not claim it at a subsequent stage.: i i

8. The CIT(A), however, relied on the decision ofthe Delhi Bench ofthe ITAT inITO v. Efextra EsolutionsPvt. Ltd.(ITA No.3I3/Del/2012)where such a plea had been entertained at the appellate stage. The CIT(A)noted thatthe Assessee had produced the software in the unit which was registered at the STPI. He had been issued a Green card and registration by the ITA Nos.956-58/2015 Page3of[5] Director STPI.The Assessee had also filed the auditreportin Form No.56F. I

9. The ITAT has, while dismissing the Revenue's appeal by the impugned order, followed its earlier decisions in Efextra Esolutions Pvt. Ltd(supra) andITO v. M/s J.C.Infosoft TechnologiesLtd.(order dated 25'*^ July,2014 inITANo.ll35/Del/2011). I I

10. Mr Shivpuri referred to Section 80A (5) and subrnitted that in terms I thereof,the claim for exemption under Section 10 A had to be made in the first instance while filing the return ofincome,failing which no deduction thereunder could be allowed to an Assessee. i

11. It is seen that Section 80 A(5)refers to both Sections 10 A and 10 B.It is not as ifin the present case the Assessee did not, at the time offiling his return, make a claim for exemption in respect of the,export income. He however invoked the wrong provision i.e. Section 10B instead ofSection 10

12. It was then urged by Mr. Shivpuri that there is a difference in the language ofSection lOA and Section lOB and that in any event the CIT(A) should have remanded the matters to the AO to examine if in fact the I I Assessee had exported computer software from the STPI unit as claimed by ITA Nos.956-58/2015 Page4of[5] him.

13. As already noted,the CIT(A)proceeded inthe matter only after seeking a remand report from the AO.The only objection raised by the AO was that the audit report in Form 56 F oughtto have been submifted with the original return. It was not the case ofthe AO at this stage thatthe Assessee did not satisfy any of the other the eligibility requirements linder Section 10 A. Therefore, the factual determination by the CIT(A)that the Assessee was otherwise entitled to exemption under Section 10 A was not controverted by the Revenue.

14. In its appeals before the ITAT the Revenue urged two grounds which were about the Assessee not filing the audit report in Form No.56F along with the return. No ground was urged that the Assessee was ineligible to ^claim exemption under Section lOA ofthe Act.

15. In the circumstances, no substantial question ofilaw arises from the impugned common order of the ITAT. The appeals are, accordingly, I dismissed.

DECEMBER 15,2015/MK S.MURALIDHAR,J VIBHU BAKHRU,J