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2020 (7) TMI 625 - ITAT COCHINDeduction u/s 10B denied - alternative claim of deduction u/s 10A was not entertained by the CIT(A) primarily for the reason that the assessee had not claimed the same in original returns filed - audit report is not filed in Form No.56F along with the original return - HELD THAT:- The basis of denying the claim of deduction u/s 10B of the I.T.Act is on account of the dictum laid down by the Hon’ble Delhi High Court in the case of CIT v. Regency Creations Limited [2012 (9) TMI 627 - DELHI HIGH COURT] wherein it was held that the assessee not having got the necessary approval from the appropriate authority under the statute, was not entitled to deduction u/s 10B of the I.T.Act. However, the above said judgment of the Hon’ble Delhi High Court was modified in the Review Petition in the case of CIT v. Valiant Communications Ltd. [2012 (9) TMI 627 - DELHI HIGH COURT]wherein the matter was remitted to the Tribunal to consider the assessee’s alternative claim u/s 10A of the I.T.Act. In the instant case, the registration obtained by the assessee from the Director, STPI, Thiruvananthapuram constitutes as a valid approval for the purpose of deduction u/s 10A of the I.T.Act.The Delhi High Court in the case of CIT v. Technovate E Solutions P.Ltd. [2013 (3) TMI 372 - DELHI HIGH COURT] after considering the CBDT Instruction No.1 of 2006 dated 13.03.2006 and the letter issued by the Board dated 06.05.2009, held that when the EOU has obtained registration from the Director of STPI, the same is entitled to deduction u/s 10A of the I.T.Act. Therefore, the registration dated 23.03.2006 obtained by the assessee from the Director of STPI, Thiruvananthapuram is sufficient compliance for the purpose of claiming deduction u/s 10A of the I.T.Act. Deduction u/s 10B and 10A of the I.T.Act is pari materia. When claim u/s 10B of the I.T.Act was denied, the assessee made alternative claim u/s 10A of the I.T.Act. The alternative claim of deduction u/s 10A of the I.T.Act was not considered by the A.O. nor the CIT(A). In the interest of justice and equity, the issue of claim of deduction u/s 10A of the I.T.Act is restored to the A.O. The A.O. shall examine whether the assessee has satisfied the conditions mentioned for claiming deduction u/s 10A of the I.T.Act and accordingly grant deduction. The assessee had filed audit report in Form No.56F for claiming alternative claim of deduction u/s 10A of the I.T.Act. The provision regarding the filing of audit report along with the return of income is only directory and not mandatory. The audit report can be filed either during the course of assessment proceedings or during the appellate proceedings. We rely on the judgment of the Hon’ble Delhi High Court in the case of CIT v. Web Commerce (India) Private Limited [2008 (12) TMI 13 - HIGH DELHI COURT]. Therefore, even if the audit report is not filed in Form No.56F along with the original return, it is not fatal, provided the assessee subsequently files the same and satisfy all other conditions mentioned for claiming deduction u/s 10A of the I.T.Act. Appeals filed by the assessee are partly allowed for statistical purposes.
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