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CO 105 & 145/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "B" NEW DELHI
BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER
AND
Ms. SUCHITRA KAMBLE : JUDICIAL MEMBER
ITA no. 125 & 145/Del/2013
( Out of ITA no. 116/Del/2013 & 315/Del/2012
Asstt. Yrs: 2009-10 & 2008-09)
Fast Booking India (P) Ltd., Vs. DCIT, Circle 11(1),
Flat no. 206, A-13, Kailash Colony, New Delhi.
New Delhi.
PAN: AAACF 9909 L
( Appellant ) (Respondent)
Appellant by : Shri Ved Jain CA
Respondent by : Shri Amrit Lal Sr. DR
Date of hearing : 11/12/2015.
Date of order : 14/01/2016.
ORDER
PER S.V. MEHROTRA, A.M:
These cross objections are being heard in pursuance to the order dated
02-09-2015 of The Hon'ble Delhi High Court in ITA no. 334 of 2015, 338
of 2015, 339 of 2015 and 342 of 2015.
2. Brief facts of the case are that the assessee, a 100% export oriented
unit, in the relevant assessment year was engaged in the business of
software development and was registered with the Software Technology
Park of India ("STPI"), Noida. The assessee was duly approved by the Joint
Director, TPI, Ministry of Communication and Information Technology,
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CO 105 & 145/Del/2013
Govt. of India. It filed its return of income for AY 2008-09 and 2009-10,
declaring nil income and claiming deduction u/s 10B of the Act in respect of
the profit derived from export of computer software. The AO had denied the
assessee's claim u/s 10B.
3. The assessee carried the matter before ld. CIT(A). Ld. CIT(A)
following the decision of ITAT, Delhi Bench in the case of Valiant
Communication Ltd. Vs. DCIT (order dated 23.4.2010 in ITA no.
2706/Del/2008), allowed the claim of the assessee therein u/s 10B by
holding that approval by the Joint Director, STPI was sufficient to claim the
deduction. While the department's appeals were pending, the order of the
Tribunal in Valiant Communication Ltd. (supra) was carried in appeal before
the Hon'ble Delhi High court, wherein it was held that for the purpose of
availing the benefit of section 10B of the Act, the clarification by the Board
was mandatory and that such exemption could not be granted on the basis of
the certificate issued by the Joint Director. The decision in the case of
Valiant Communications Ltd. was rendered along with similar cases
including Regency Creations Ltd. (2013) 353 ITR 326 (Del.). Thereafter
assessee filed review petition in these cases on the ground that they may not
be entitled to the benefit u/s 10B, but they should not be denied the benefit
u/s 10A as they satisfied the requirements for availing the benefit u/s 10A.
The Hon'ble Delhi High Court accepted the contention of assessee and held
that he claim of the assessee u/s 10A was to be considered.
4. On the basis of this decision, the assessee filed two cross objections
before the ITAT in the two pending appeals of the department. The Tribunal
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CO 105 & 145/Del/2013
condoned the delay in filing the cross objections but declined to permit the
assessee to maintain the cross objections by following the decision of the
coordinate Bench of the ITAT in ITO v. Neetee Clothing (P) Ltd. [2010] 129
TTJ 342 (ITAT [Del.]), on the ground that since the assessee had not urged
the plea of being entitled to the benefit u/s 10A of the Act before the
CIT(A), it could not be permitted to urge such plea for the first time before
the ITAT. The Hon'ble Delhi High Court held that the Tribunal was in error
in declining to examine the cross objection filed by the assessee.
5. In view of the decision in the case of CIT Vs. Edward Keventer
(Successors) Pvt. Ltd. 123 ITR 200 and decision of Hon'ble Supreme Court
in NTPC Vs. CIT 229 ITR 383, the Hon'ble Delhi High Court in para 17
observed as under:
"17. The basis of this Court remanding the matters in Valiant
Communications Ltd. cases to the ITAT was precisely to
consider whether the benefit under Section 10A could be
granted to those Assessees notwithstanding that they may not be
entitled to the benefit under Section 10B. It was, therefore, open
to the Appellant Assessee herein to seek support of the order of
the CIT(A) on the ground which was not urged before the err
(A) as long as it was not going to be ad verse to the case or the
Appellant i.e. the Revenue before the ITAT. The ITAT in
considering such plea was not going to be persuaded to come to
a different conclusion as far as the appeal of the Revenue
pertaining to the benefit under Section 1013 or the Act was
concerned. Particularly in the light of the order passed by 'this
January 2013 in the applications filed by Valiant
Communications Ltd., there should have been no difficulty for
the ITAT to have examined the Appellant Assessee's cross
objections."
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CO 105 & 145/Del/2013
6. Ld. counsel submitted that the matter may be restored back to the file
of AO to examine the assessee's claim u/s 10A.Ld. DR agreed for the same.
7. As agreed by both the parties, the issue is restored back to the file of
AO to examine the assessee's claim u/s 10A.
8. In the result, the cross-objections are allowed for statistical purposes.
Order pronouncement in open court on 14/01/2016.
Sd/- Sd/-
(SUCHITRA KAMBLE ) (S.V. MEHROTRA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 14/01/2016.
*MP*
Copy of order to:
1. Assessee
2. AO
3. CIT
4. CIT(A)
5. DR, ITAT, New Delhi.
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