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TMI Blog2010 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Ground of appeal of cross-objection of the assessee reads as under:- "On the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals)-XIII, New Delhi, while passing order under section 250 of the Income Tax Act 1961 ('Act'), ought to have further held that the finding of the Assistant Commissioner of Income-tax, Circle-11(1), New Delhi ('hereinafter referred to as learned Assessing Officer') that the appellant had claimed deduction under section 80HHE of the Act in any of the preceding year, is factually incorrect as no such claim has actually been made or even allowed by the learned Assessing Officer while computing the taxable income of the appellant." 4. The impugned assessment is an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that no report of a Chartered Accountant was furnished which is mandatory requirement to avail deduction u/s 80HHE. It is only for computing minimum alternative tax the assessee had reduced the amount to profits eligible for deduction u/s 80HHE in accordance with requirement u/s 115JA(2)(ix). It was submitted that such reduction does not amount to claiming deduction u/s 80HHE. In respect of AY 2001-02, it was submitted that assessee had claimed deduction u/s 10A on account of amendment in the definition of computer software w.e.f. AY 2001-02 and since all the conditions were fulfilled, the assessee started claiming deduction u/s 10A for the profits arising to SSC for AY 2001-02 and for balance unexpired period of eight years. Duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal wherein assessee has been held eligible for deduction u/s 10A. Therefore, he submitted that to the extent the issue relates to allowability or otherwise of deduction u/s 10A, learned CIT(A) has rightly decided the issue in favour of the assessee. 6. So far as it relates to issue raised by the assessee in the crossobjections, learned Senior Counsel submitted that it has been categorically stated before the AO that deduction u/s 80HHE was never claimed by the assessee. It was only an alternative claim put during the course of assessment proceedings in the eventuality of disallowance of deduction u/s 10A. The issue that 80HHE deduction was not granted to the assessee was canvassed before the CIT(A) and the CIT(A) though has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of law and facts on the issue. The finding of ld.First Appellate Authority is worth to note:- "2.3.2 The provisions of section 10A(2) of the Act are noted below: (2) This section applies to any undertaking which fulfills all the following conditions, namely:- (i) it has begun or begins to manufacture or produce articles or things or computer software during the previous year relevant to the assessment year - (a) commencing on or after the 1st day of April, 1981, in any free trade zone; or (b) commencing on or after the 1st day of April, 1994, in any electronic hardware technology park or, as the case may be, software technology park; (c) commencing on or after the 1st day of April, 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to claim the deduction u/s 10A of the Act. 2.3.3 The argument of the Assessing Officer that the exemption has to be claimed from the initial year of start of manufacture or produce articles or things or compute software itself as per section 10A(1) is again misplaced. In fact, when the section was amended by the Finance Act, 1986 as per sub-section (3) of Section 10A of the Act, the exemption was allowable only for any five consecutive assessment years falling within a period of eight years beginning with the A.Y. relevant to the previous year in which the undertaking begins to manufacture or produce articles or things specified by the assessee at his option. It is clear from the above sub-section, it was not must that exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and it is rejected. 9. In the result, appeal of the Revenue is dismissed." 9. Learned CIT(A) has already recorded a finding that facts of the present year are identical to the facts of AY 2001-02 and 2004-05 and no material has been brought on record to suggest that such findings of the CIT(A) are incorrect. Therefore, we find that learned CIT(A) has rightly accepted the claim of the assessee u/s 10A on the basis of earlier orders of the Tribunal, therefore we decline to interfere in the order of CIT(A) so as it relates to claim of deduction u/s 10A and the appeal filed by the Revenue is dismissed. 10. Now coming to the cross-objection filed by the assessee, it was specifically stated by the assessee before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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