TMI Blog2014 (9) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... Janpriya Roop Rai, Adv. For the Respondent : Nidhi Srivastava, Sr. DR ORDER Per A. T. Varkey, Judicial Member This is an appeal by the Department against the order dated 09.112012 of the CIT(A), XIII, New Delhi relevant to the assessment year 2007-08. 2. The grounds of appeal are as follows:- 1. That on the facts and circumstances of the case and in law, the CIT(A) has erred in upholding the order of the Deputy Commissioner of Income-tax, Circle 11(1), New Delhi, (hereinafter referred to as the AO ) assessing the income of the appellant for the relevant assessment year at ₹ 41,06,960/-, as against the returned income of ₹ 5,995/- . 2. That on the facts and circumstances of the case and in law, the CIT(A) has erred in upholding the action of the AO disallowing deduction claimed u/s 10A/10B of the Act holding that STPI was not an authority competent as per the provision of section 10A/10B of the Act to grant registration. 3. That the CIT(A) erred on facts and in law in upholding the order of the AO disallowing the deduction claimed by the appellant u/s 10A/10B of the Act, allowing that the appellant has made a fresh claim of deduction for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acceptable as the claim was not made by way of revised return of income. The case laws relied upon by the appellant in this regard are old one and the latest judgement of the Supreme Court in the case of Goetze India Ltd. Vs. CIT 284 ITR 323 (SC) has overruled such case laws, wherein it is held that the AO has no power to entertain any fresh claim without filing revised return of income. The power of CIT(A) are co-terminus with that of AO, therefore, CIT(A) also has no power to entertain fresh claims. 5. Brief facts of the case as emerging from the records is as follows: i. The Appellant is a private company incorporated in India and is, inter alia, engaged in the business of providing software solutions to associated enterprises. The Appellant is a 100 percent export oriented undertaking ( EOU ) and registered with Software Technology Park of India ( STPI ). ii. For the relevant assessment year, the Appellant furnished its return of income on October 31, 2007, and claimed tax holiday under section 10B of the Act. The Appellant had duly submitted the report issued by the Chartered Accountant in Form 56G in respect of exemption claimed under section 10B of the Act. ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor STPI is not an approval by the Board referred to in Clause (iv) of Explanation (2) below section 10B(8) of the Act. Therefore the finding of ld CIT(A) denying the claim of deduction of the appellant u/s 10B is correct. Now we proceed to consider the assessee s alternate claim u/s 10A of the Act. 7. We find that the appellant had filed Form 56F in compliance with the requirement of Section 10A of the Act during the course of assessment proceedings, pursuant to the revision order of the CIT(A). In such circumstance the benefit for which the assessee is eligible as per law cannot be denied and the ratio of Goetze (India) is not applicable to the facts of the instant case. 8. Now, it is seen that the assessee, on being pointed out by the Assessing officer in the de-novo proceedings that deduction u/s 10B was not available to it, changed its claim to one u/s 10A of the Act, by way of filing a report of the Chartered Accountant in the prescribed Form No.56F before the Assessing officer. 9. We find that the alternate claim of the assessee u/s 10A was denied by the ld CIT(A) relying upon the judgment of the Hon ble Supreme Court in Goetze India Ltd which was considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment. In fact, the Supreme Court made it clear that the issue in the case was limited to the power of the assessing authority and that the judgment does not impinge on the power of the Tribunal under section 254. 10. Goetze (India) (supra), to our mind, is not attracted to the facts of the present case, since therein, the claim made subsequently was an altogether fresh claim, whereby the returned income got changed. However, it is not so here. Undisputedly, in the present case though there is a change of claim from section 10B to 10A, neither the returned income, nor the assessed income of the assessee has undergone any change whatsoever. 11. In CIT vs. Jai Parabolic Springs Ltd. 306 ITR 42 (Del), it was held that the CIT (A) had the jurisdiction to entertain the additional claim not filed before the Assessing Officer. 12. In Deepak Nitrite Ltd. vs. CIT , 307 ITR 289 (Guj), in the original return deduction was claimed u/s 32A of the Act, whereas in the belated revised return, such claim was rectified and made u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 10B instead of under Section 10A. The provisions of Sections 10A and 10B are similar. The formats of Form No.56F 56G are same, therefore, this was a technical defect, if any and only on account of technicality and venial defect, the benefit allowable to the assessee should not have disallowed by the AO. This view of ours find further support from the decision of the Hon'ble Supreme Court in the case of Hindustan Steel, reported in 135 Taxman 461. In view of these facts and circumstances of the case and in view of the fact that on similar issue the Tribunal allowed the issue in favour of the assessee which has been followed by the learned CIT(A), we confirm the order of the learned CIT(A) in the appeals of both the assessee. In the result, appeals of the department are dismissed. 17. In view of the case-laws cited above we entertain the claim, however on merits since the AO has not examined the claim we think it appropriate to remit the matter back to the file of AO for his consideration. Therefore we set aside the impugned order back to the file of AO for fresh consideration; needless to say that adequate opportunity may be granted to the assessee. 18. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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