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2009 (6) TMI 677 - AT - Income TaxDeduction u/s 10A - export proceeds - convertible foreign exchange within six months of the date of invoice - relayed receipt of realization of computer software export - HELD THAT:- The Regulation by itself not only speaks of this deeming date of export, but also mention, various periods for realization of export value of goods or software as 12 and 15 months. In fact, there is no mention of any six months in such regulation and this only clearly implies that Regulation 9 was only for the purpose of Foreign Exchange Management and not for the purpose of application of tax provisions. It is clear from paper book page No. 21 that on account of half yearly closing of accounts, there was no conduct of normal business in banks on 30-9-2004. There is also no dispute that sum as received on 1-10-2004 by the assessee, as clear from the certificate of M/s. J.P. Morgan dated 8-5-2007 (placed at paper book page 19). The period of six months from the end of the previous year comes to 30-9-2009. Application of General Clauses Act when a date prescribed is a holiday has been succinctly summarized by Hon’ble Kerala High Court in the decision of Kerala State Industrial Development Corpn. Ltd. v. Addl. CIT [2006 (10) TMI 91 - KERALA HIGH COURT]. Therefore, remittance received by the assessee on 1-10-2004 has to be deemed as received within six months period from the end of the relevant previous year. Therefore, insofar as the sum as received above has to be allowed. However, the balance amount which was received on 26-11-2004 would not be eligible for the purpose of computing deduction u/s 10A. Ground partly assessee is allowed. Treating the interest from fixed deposit and interest on staff loan as income falling under the head ‘Profits and gains from business or profession’ eligible for deduction under section 10A - HELD THAT:- The Hon’ble Delhi High Court in the case of Eltek SGS (P.) Ltd. [2008 (2) TMI 17 - DELHI HIGH COURT] has held that the term "derived by an undertaking from export of articles or things or computer software" used in section 10A was neither as broad as "attributable to" nor as narrow as "derived from". Though section 80HHC used the term "derived from", Hon’ble jurisdictional High Court in the case of Punit Commercial Ltd. [2000 (8) TMI 71 - BOMBAY HIGH COURT] held that the whole of the business income was eligible for deduction u/s 80HHC. Further to this, we also find that Hon’ble jurisdictional High Court in the case of Lok Holding[2008 (1) TMI 365 - BOMBAY HIGH COURT] has clearly held that if surpluses were deposited by the assessee out of its business proceeds, interest therefrom could only be considered as part of profits and gains of business of the assessee. Therefore, we are inclined to allow the claim of the assessee for treating the interest from fixed deposit and interest on staff loan as income falling under the head ‘Profits and gains from business or profession’ eligible for deduction u/s 10A. As far as the contention of the learned DR that section 10A was an exemption provision whereas section 80HHC is a deduction provision, we find that section 10A as substituted by Finance Act, 2000, with effect from 1-4-2000 clearly mentions it to be a deduction from profits and gains derived by an undertaking from export of articles or things or computer software. Therefore, it cannot be deemed as an exemption provision for the impugned assessment year. Ground No. 2 of the assessee is, therefore, partly allowed.
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