TMI Blog2014 (7) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate issued by the Government of India, Department of Electronics, Electronics Hardware Technology Park Secretariat dated 16th November, 1998 - on the assessee’s application for setting up 100% export oriented unit in EHTP scheme, the Government of India was pleased to extend all facilities and privileges admissible under the EHTP scheme for conversion of assessee’s DTA unit into EHTP unit - assessee has claimed to have filed the above letter before the AO – the letter has not been considered by the AO - the matter needs re-examination in the light of the letter issued by the Government of India wherein the assessee was permitted to convert its DTA unit into EHTP unit – thus, the matter is remitted back to the AO for re-examination of the assessee’s eligibility for deduction u/s 10A in the light of letter of the Government of India. Non-receipt of sale proceeds in convertible foreign exchange – Held that:- Assessee contended that all the sale proceeds were received in convertible foreign exchange and assessee had duly furnished the evidence - The auditor’s certificate was also furnished certifying the details - as the matter is remitted back to the AO for examination of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Regency Creations Ltd. (supra) is directly applicable in the present case and respectfully following this Tribunal decision, we hold that the STIP registration granted to the assessee on 16.11.1998 is valid for allowing deduction to the assessee u/s 10B and hence we do not find any reason to interfere in the order of the ld.CIT(A) on this issue. We would also like to point out that in an earlier year i.e. assessment year 2004-05, the Assessing Officer himself has allowed deduction u/s 10B to the assessee in a scrutiny assessment. It is also not brought on record by the revenue that this order is revised u/s 263 or reopened u/s 147. Under these facts, we feel that having decided in assessment year 2004-05 that the assessee is eligible for deduction u/s 10B, it cannot be denied in this subsequent year on the basis that the assessee is not an 100% EOU for the reason that necessary approval is not with the assessee. This is against the rule of consistency. For this reason also, we decline to interfere in the order of ld.CIT(A). 8. In the result, the appeal of the revenue is dismissed. 4. The cross-objection of the assessee was not adjudicated with the following find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone into the merits of the alternative claim for entitlement under Section 10A. This fact is apparent from a reading of the order of CIT(A) as well as that of the Tribunal in the order impugned. In the circumstances, the Tribunal shall consider the relevant documents on the basis of the claims and ascertain whether the applicant is entitled to the benefit of Section 10A, as claimed. The judgment and order of this Court dated 17.09.2012 is accordingly modified; the Tribunal shall proceed to pass appropriate orders after hearing both parties. 7. In view of the above order of Hon'ble Jurisdictional High Court in the review petition directing the ITAT to consider the assessee s claim under Section 10A, these appeals were re-listed for hearing. From these facts, it is evident that the limited issue before us now is whether the assessee is entitled for deduction under Section 10A in the year under appeal. 8. At the time of hearing before us, it is submitted by the learned counsel that the Assessing Officer had rejected the assessee s alternative claim for deduction under Section 10A on three grounds :- (i) The assessee did not claim the deduction in the return of income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually applicable for allowability of deduction under Section 10B. That when the CIT(A) held that the assessee is entitled to deduction under Section 10B in the appeal filed before the ITAT, the only ground raised in the grounds of appeal as well as argued by the Revenue before the ITAT was that the assessee is not approved by the Board as required by Section 10B. Thus, impliedly, the Revenue had also accepted receipt of sale proceed in convertible foreign exchange. He, therefore, submitted that Assessing Officer may be directed to allow the deduction under Section 10A. 10. Learned DR, on the other hand, relied upon the order of the Assessing Officer and he stated that the assessee started domestic operation in the year 1994. Ten years from the year 1994 are already complete and therefore, the assessee cannot be entitled to deduction under Section 10A in AY 2005-06. He further submitted that the issue of non-remittance of sale consideration in a convertible foreign exchange was not raised by the Assessing Officer for disallowing deduction under Section 10B. Deduction under Section 10B was disallowed because the assessee was not approved by the Board which is a mandatory requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the review petition, has directed to consider the assessee s claim under Section 10A on the basis of relevant documents. In view of the above, we hold that the Revenue s objection, that the assessee is not entitled to deduction under Section 10A only because the same was not claimed in the return of income, is untenable and is rejected as such. 13. Now, we come to another ground on which the Assessing Officer rejected the assessee s claim of deduction under Section 10A. The second ground on which the Assessing Officer rejected the assessee s claim under Section 10A was that the assessee did not begin to manufacture or produce article or things in any EHTP or in any STP but started manufacturing in DTA. However, at the time of hearing before us, the assessee produced the certificate issued by the Government of India, Department of Electronics, Electronics Hardware Technology Park Secretariat dated 16th November, 1998. The relevant portion of the letter reads as under:- Sub : Your application for setting up 100% Export Oriented unit under Electronic Hardware Technology Park (EHTP) scheme for the manufacture of Telecom Transmission Equipment:. Ref : Your application sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and capital goods shall be permitted in accordance with Import Export policy. viii) Separate accounts shall be maintained for EHTP units. ix) The unit shall be custom bonded. 15. The assessee has claimed to have filed the above letter before the Assessing Officer. However, we find that this letter has not been considered by the Assessing Officer in the assessment order. In our opinion, the matter needs re-examination in the light of the above letter issued by the Government of India wherein the assessee was permitted to convert its DTA unit into EHTP unit. In view of the above, we set aside the orders of authorities below on this point and restore the matter to the file of the Assessing Officer to re-examine the assessee s eligibility for deduction under Section 10A in the light of above letter of the Government of India. 16. The third ground raised by the Assessing Officer was against the non-receipt of sale proceeds in convertible foreign exchange in India. The assessee had contended that all the sale proceeds were received in convertible foreign exchange and assessee had duly furnished the evidence in this regard. The auditor s certificate was also furnished certify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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