TMI Blog2015 (2) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable".- Decided against assessee. - ITA No. 116/Del/2013, ITA No.315/Del/2012 - - - Dated:- 10-12-2014 - SHRI J. SUDHAKAR REDDY AND SHRI C.M. GARG, JJ. For the Appellant : Shri Rupesh Jain, Adv. Ms.Shikha Sharma, C.A. For the Respondent : Smt. Parwinder Kaur, Sr.D.R. ORDER Per: J Sudhakar Reddy: Both these appeals are filed by the Revenue and are directed against separate orders of the Ld.CIT(A)-XIII, New Delhi dt. 26.10.2012 pertaining to the Assessment Years 2008-09 and 2009-10. The Cross Objections are filed by the assessee. 1.1. There is a delay of 179 days in filing the Cross Objections for the AY 2009-10. The assessee submits that the issue in question i.e. whether the assessee is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patil reported in 253 ITR 798 and (b) Collector, Land Acquisition vs. Mst. Katiji 167 ITR 471 and it was prayed that the delay be condoned and the Cross Objections be admitted. 2. Facts in brief:- The assessee company is a subsidiary company of Fast Booking, France. It is a 100% export oriented unit (EOU) and engaged in the business of development of software and registered with Software Technology Park of India, Noida. In the assessment order, the AO has disallowed deduction u/s 10B claimed by the assessee and also disallowed the claim of the assessee that deduction u/s 10B is to be given first without setting off brought forward losses and unabsorbed depreciation. 2.1. On appeal the First Appellate Authority applied the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and in law, without prejudice to the claim of deduction u/s 10B of the Act, the profits derived from the export of computer software by the unit set up under Software Technology Park were, in the alternative, eligible for deduction u/s 10A of the Act and deduction ought to have been allowed under that section. (I) Grounds of Cross Objection for the AY 2008-09:- That on the facts and circumstances of the case and in law, without prejudice to the claim of deduction u/s 10B of the Act, the profits derived from the export of computer software by the unit set up under Software Technology Park were, in the alternative, eligible for deduction u/s 10A of the Act and deduction ought to have been allowed under that section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the AY 2008-09 is also allowed. 7. On the issue of delay in filing the Cross Objections, we are of the considered opinion that the delay has to be condoned as in our view, the sequence of events and facts demonstrate that the assessee was prevented by sufficient cause in filing the Cross Objections in time. Hence we condone the delay and admit the Cross Objections. 7.1. In the Cross Objections the assessee made a plea that it is eligible for deduction u/s 10A of the Act and the issue is to be set aside to the file of AO to examine this claim. 7.2. Smt.Parwinder Kaur, Ld.Sr.D.R. relies on the decision of Delhi A Bench of the Tribunal in the case of ITO vs. Neetee Clothing (P) Ltd. In ITA no.1123/Del/2007 and C.O.No.98/Del/2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been decided against the cross objector. In the case before us the assessee has not challenged the reopening of assessment before CIT(A). Ld.CIT(A) has also not adjudicated upon the issue of assumption of jurisdiction as the issue was not before him. Therefore the issue relating to assumption of jurisdiction raised in the cross objection by the assessee is not subject matter of appeal before this Tribunal and hence assessee can neither file appeal before the Tribunal nor memorandum of cross objection raising the issue relating to assumption of jurisdiction even when the assessee has right to file cross objection against the whole order of CIT(A). 18. We are also aware of decision of Hon'ble Supreme Court in the case of Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) the profits in respect of which the deduction u/s 80IB has been allowed, is to be reduced from eligible business profits for the purposes of deduction u/s 80HHC of the Act. The assessee by way of cross objection is not seeking relief to which it is entitled to but seeking cancellation of reassessment proceeding so that additional tax relating to escaped income may not be fastened on him and hence the assessee attempting to avoid payment of due tax to Revenue. Under these circumstances assessee cannot be permitted to raise a ground not arising from the order of CIT(A) that too by way of cross-objections. Consequently the decision of NTPC Ltd (supra) cannot be pressed into service for getting the assessment annulled in appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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