TMI Blog2015 (11) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountant Member. This appeal of the assessee is filed against the order of CIT(A)- XI, Ahmedabad dated 18.11.2011 in appeal No.CIT(A)-XI(362/10-11. Assessment for Asst. Year 2008-09 was completed on 6.12.2010 u/s 143(3) of the Income-Tax Act, 1961 (hereinafter referred to as the Act). Assessee has raised following grounds in its appeal:- 1. Ld. CIT(A) erred in law and on facts in confirming disallowance of deduction of ₹ 67,08,733/- u/s 10B of the Act. Both the lower authorities erred in holding that the failure to obtain approval from Board despite fulfilling all the conditions makes the appellant ineligible to claim deduction u/s 10B of the Act. Ld. CIT(A) ought to have appreciated ratio of the decisions relied upon that units approved under Software Technology Parks of India (STPI) entitles the appellant to claim benefits under 100% EOU Scheme and hence ought to have granted claim of deduction made by the appellant. 2. Ld. CIT(A) erred in law and on facts in dismissing the additional ground taken by the appellant to alternatively grant deduction u/s 10A of the Act. Ld. CIT(A) gravely erred in rejecting to adjudicate additional ground that goes to the root of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1951 and 100% export oriented unit under Software Technology Park Scheme cannot be equated with 100% exported oriented unit approved by board u/s 14 of the IDAR Act. The assessee was not therefore, entitled to exemption u/s 10B in the absence of such approval. In the instant case also, the appellant is having approval from Director (IT) Software Technology Park of India and not from Board constituted u/s 14 of IDAR Act, 1951. This respectfully following the CBDT clarification bearing DOF No. 178/30/09-ITA(1) dated 6.5.2009 and ITAT order in the case of Infotech Enterprise Ltd. (supra). I am inclined to agree with the AO on this point. Even the appellant is also not very sure for mantainability of deduction u/s 10B of the IT Act and moved on additional ground of appeal on 17.11.2011, contending that it is eligible for deduction u/s 10A of the IT Act and deduction may be allowed u/s 10A of the IT Act to it. 2.4 In view of above fact, I hold that the appellant had not fulfilled eligibility condition as laid down in sub-clause IV to explanation 2 to section 10B of the IT Act and accordingly, it is not eligible for deduction u/s 10B of the I.T. Act. This way, disallowance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority as per the provisions of section 10B which reads as below :- hundred per cent export oriented undertaking means an undertaking which has been approved as a hundred per cent export oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers conferred by section 14 of the Industries (Development and Regulation) Act, 1951 )65 of 1951) and the rules made under that Act. 4. However, the ld. AR submitted that the assessee received letter of permission dated 28.6.2006 from Software Technology Parks of India (An autonomous Society under the Department of Information Technology, Ministry of Communication Information Technology, Government of India) which fulfills the requirement of being approved as 100% export oriented undertaking by the Board appointed in this behalf by the Central Government, as Software Technology Parks of India (STPL), comes under the Ministry of Communication and Information Technology, Government of India. In support of its claim under section 10B of the Act being holding of letter of approval from STPL the ld. AR relied on the judgment of ITAT, Delhi Bench in the case of Regency Creators Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas Press Note No.1993 Series), was issued on 9.3.93 by the Deputy Economic Adviser. Further, vide the aforesaid communication dated 31.3.2011, it has been stated by the CPIO and Director under the RTI, as follows : Subject: RTI application received from Shri Mahesh Shrivastaa, Keshavpuram, Delhi, regarding approval or ratification of STPL, approval by BOA formed by MOC to claim benefits of 100% EOU Scheme. Please refer to your RTI application dated March 10,2011 received on 17.03.2011 on the subject mentioned above and to inform that no approval/ratification of STPI approval is required from BOA formed by Ministry of Commerce by power conferred under section 14 of IDR Act, 1951. Inter-Ministerial Standing Committee for EHTPs and ESTPs (IMSC) is competent in grant approval for STPI unit to claim all benefits under 100% EOU Scheme as per Press Note 2 of 1993 (copy enclosed) . 8. In view of the above, we find the grievance of the assessee to be justified and it is accepted as such. We hold that the assessee is entitled to claim of deduction u/s 10B of the Act. In the case of ITO vs. E-Infochip Ltd. in ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 263 of the Act cannot be exercised by the CIT. Our view is fortified by the judgment of Delhi High Court in the case of CIT vs. Honda Siel Power Products Pvt. Ltd. in ITA Nos.1376/2009 and 1382/2009 dated 5.7.2010. In view of the above, we reverse the order of the CIT and allow the appeal filed by the assessee. 7. In the light of decisions of Co-ordinate Bench as well as other Benches of the Tribunal, wherein it has been categorically held that approval by Software Technology Parks of India comes under the Ministry of Communication Information Technology is a competent authority to grant approval to such units for claiming benefits u/s 10B as 100% Export Oriented Undertaking and the same is possessed by assessee and also looking to the facts of the case of assessee wherein assessee has been allowed deductions u/s 10B in Asst. Years 2007-08, 2010-11 2011-12 consistently, we are of the considered view that the assessee s claim of deduction under section 10B at ₹ 67,08,733/- is justified and accordingly the order of CIT(A) is quashed and the appeal of assessee is allowed. 8. Ground No.3 relates to interest u/s 234B 234C of the Act. This is consequential. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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