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TMI Blog2011 (1) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... vance in the assessee appeal in ITA No.1057/H/2010 is with regard to denial of exemption u/s 10B of the IT Act. 3. Brief facts of the issue are that the assessee is engaged in the business of software development. It claimed deduction u/s 10B of the Act at Rs. 2,87,03,825/-. It was noticed by the assessing officer that the assessee was registered with the STPI as 100% EOU. For availing the exemption u/s 10B, the undertaking is required to be 100% EOU and it has to be approved by Board appointed in this behalf by the Central Govt. u/s 14 of the Industries (development and Regulation Act 1951). Since the assessee has not got the approval from the Board as 100% EOU instead it was approved under STPI Scheme that itself cannot be equated with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta in CIT Vs. Shri Bajrang Electric Steel Company (P) Ltd. (181 ITR 427) to claim that the special deduction u/s 80J can be claimed for the first time in the reassessment proceedings in pursuance of an assessee order, even if it was not claimed in the original assessment order. 6. He submitted that in view of the decision in the case of CIT Vs, Kanpur Coal Syndicate (53 ITR 225), the powers of the Appellate Authority are co terminus with that of the assessing officer. He averred that there was no dispute with regard to export turnover, which is an eligible deduction, both u/s 10B and 10A, and therefore, the assessing officer should have allowed the claim u/s 10A even though the claim had been made by the assessee u/s 10B. 7. Further, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B and section 10A & B are operated in a different regulatory context and as such the assessing officer denied exemption claimed by the assessee. There is no merit in the contention of the assessee that both the claims are substantial and that omission to make the correct claim is only technical breach will be apparent from record. According to learned departmental representative the Appellate Authority cannot use plenary power to substitute Form 56F in the place of 56G when the assessee has not obtained the concerned approvals from the Central Govt. Failure to obtain the prescribed rectification of the govt. or obtaining from wrong authority is not a mere technical breach, but an omission to meet basic condition. He submitted that even it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority has its separate mandate. As noticed in the case of Infotech Enterprises Ltd. (85 ITD 325) the respective approving authorities are not interchangeable. To overlook this aspect would not be a mere interpretation of the statute, rather it would amount to going beyond the statute. It is also been noticed in the above decision that although some conditionalities were common and overlapping between 10A and 10B units, other conditionalities like satisfaction of employment criteria, foreign exchange etc. are apparently different. Under the circumstances, it has been held that to hold two approvals as substitutable would amount to holding that there was an amount of redundancy or suerfluousness in the respective sections. There is nothing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the considered opinion that it shall be in the interest of justice to set aside the issue in the grounds of appeal of the assessee to the file of assessing officer with a direction to decide the issue in accordance with law after providing reasonable opportunity to the assessee, and also to give a specific finding whether the assessee is entitled to deduction u/s 10A of the Act or not. The assessee may file any evidence in support of its claim for deduction before the assessing officer. We make it clear that our observations herein above shall not have any bearing on the decision of the assessing officer with regard to the merits of the claim of the assessee for deduction u/s 10A of the Act. We direct accordingly. 11. Coming to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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