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2013 (7) TMI 515 - ITAT DELHIClaim of deduction u/s 10B disallowed - Held that:- The undertaking existed in the same place, form and substance and did carry on the same business before and after the change in the legal character and form of the organization. Formerly, it was a part of MSSL and presently it is an independent assessee. However, with the above change in organizational status, the same unit continued to function. Non export of 100% of turnover - Held that:- It is observed that clause (iv) of Explanation 2 to section 10B defines the expression 100% EOU so as to mean an undertaking which has been approved as 100% export oriented unit by the Board appointed in this behalf by the Central Govt. in exercise of the power conferred under section 14 of the Development Regulation Act, 1951 and rules made under that Act and in the present case the representation was made to the authorities and after verifying the documents and after being satisfied a certificate was granted of being 100% EOU to the undertaking under the name & style of M/s MSSL and subsequently when the unit was transferred to assessee the same was transferred in the name of the assessee. Therefore, the objection of the AO that some part of sale was affected in domestic area does not disentitle the assessee for claiming deduction u/s 10B unless the undertaking is deleted from the category of 100% EOU by the said Department. Transfer of assets which exceeded 20% of total value of plant & machinery - Held that:- As submitted that part assets were not transferred but the whole undertaking was transferred and there is no question of comparison of assets transferred with the total transfer of the assessee as it is a case of transfer of whole undertaking. All the case laws relied by DR relate to transfer of assets to an assessee and these cases do not relate to transfer of an undertaking in full. Therefore, assessee was entitled to the benefit of section u/s 10B for the years under consideration provided these years fall within 10 years from the date of availment of first deduction u/s 10B - appeals of the assessee are allowed.
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