* THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 14.11.2008
+ ITA No. 1295/2008
COMMISSIONER OF INCOME
TAX-II ...... Appellant
-versus-
MANTEC CONSULTANTS
(P) LTD ...... Respondent
Advocates who appeared in this case:
For the Appellant : Mr N. P. Sahani & Mr Prakash Chand Yadav
For the Respondent : Mr B. B. Bhagat, Mr Amit Bhagat and Mr
Pulkit Gupta
CORAM :-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ?
2. To be referred to Reporters or not ?
3. Whether the judgment should be reported
in the Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. This appeal is directed against the order passed by the Income
Tax Appellate Tribunal on 15.02.2008 in ITA No. 888/Del/2006
pertaining to the assessment year 2001-02. This matter has had
ITA No. 1295 of 2008 Page 1 of 5
two rounds before the Tribunal. The issue pertains to the
allowability of deduction under Section 10A of the Income Tax
Act,1961 (hereinafter referred to as the said „Act‟). Although, no
claim under Section 10A had been made before the Assessing
Officer, the respondent/assessee had made such a claim before the
Commissioner of Income-tax (Appeals). In the first instance, the
assessee had claimed deduction under Section 80 HHE for which
purpose Form No. 10CCAF was filed. However, in the course of
appellate proceedings before the Commissioner of Income-tax
(Appeals), the assessee filed Form 56 F which is required to be filed
under Rule 16D of the Income Tax Rules, 1962 read with Section
10A (5) of the said Act for claiming deduction under Section 10A.
2. In the first round before the Tribunal, the issue whether the
assessee was entitled to have raised a claim under Section 10A
before the Commissioner of Income-tax (Appeals), for the first time,
without having raised such a claim before the Assessing Officer, was
considered. The Tribunal has, inter alia, held as under :-
“…… It had filed report on prescribed form 10
CCAF along with the return. The report on form
56F required as per sec.10A of the Income-tax
Act, was submitted before the learned CIT (A)ITA No. 1295 of 2008 Page 2 of 5
who sent the claim of the assessee to the AO. The
AO verified the claim and sent a detailed report.
It is not shown that any condition of section 10A
was held to be not fulfilled in the case except
failure to file audit report on form 56F “along with
the return”. It has now been accepted by several
High Court that provision relating to submission
of audit report along with return are not mandatory
but directory. In this connection, useful reference
may be made to the decision of the Hon‟ble
Calcutta High Court in the case of CIT vs. Berger
Paints (India) Ltd. (No.2) (2002) 254 ITR 503 as
also the decision of the Hon‟ble Kerala High
Court in the case of CIT Vs. G Krishnan Nair, 259
ITR 727. This objection is not very material.”
3. The Tribunal, by virtue of its order dated 10.06.2004, in the
first round, also held :-
“…… It is not the claim of the revenue that
conditions of sec.10A were not satisfied in this
case. The learned CIT (A) refused to entertain the
claim of the assessee as an objection to the
entertainment of above claim was raised by the
AO. On a very technical ground, the plea of the
assessee relating to the claim of Rs. 1,11,24,443/-
was not admitted. On the facts and circumstances
of the case, we are of the view that the learned
CIT (A) failed to exercise jurisdiction duly vested
in her, more particularly when all the material
relating to the claim was available on record and
was duly examined by the AO.”
4. Consequently, the Tribunal was of the view that the assessee
was fully justified in raising the claim under Section 10A of the said
ITA No. 1295 of 2008 Page 3 of 5
Act, for the first time, before the Commissioner of Income-tax
(Appeals), who ought to have entertained it and decided on merits as
to whether the assessee was entitled to such a deductions.
Consequently, the Tribunal set aside the impugned order and
restored the matter to the file of the Commissioner of Income-tax
(Appeals) for recording a finding relating to deductions claimed by
the assessee under Section 10A of the said Act in accordance with
law.
5. Thereafter, the Commissioner of Income-tax (Appeals)
considered the matter and found that the assessee was entitled to the
deductions claimed by it under Section 10A of the said Act. In the
second round before the Tribunal, the issues which had been settled
in the first round were sought to be re-agitated. In this regard, the
Tribunal noted that it had entertained the fresh ground claiming 100
per cent deductions under Section 10A of the said Act and had
remitted the matter to the Commissioner of Income-tax (Appeals) for
adjudication. Consequently, the Tribunal held that the revenue
could not re-agitate the issue after the Tribunal had already decided
the same in the first round. The Tribunal also noted that there is no
ITA No. 1295 of 2008 Page 4 of 5
dispute that the entire material was available on record and Form
No. 56 F which had been filed, in the first round, had been admitted
before the Commissioner of Income-tax (Appeals). Consequently,
the Tribunal was of the view that the revenue, having accepted the
order of the Tribunal in the first round, cannot raise those objections
in the second round.
6. We see no infirmity in the order passed by the Tribunal, which
is impugned before us. No question of law arises for our
consideration. The appeal is dismissed.
BADAR DURREZ AHMED, J
RAJIV SHAKDHER, J
November 14, 2008
mk
ITA No. 1295 of 2008 Page 5 of 5