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TMI Blog2016 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance of the deduction u/s.10B of the I.T Act amounting to Rs. 50,10,459/- 2. The Ld. CIT(A) has erred in allowing the deduction u/s.10B even though the assessee did not have approval of prescribed authority as required in CBDT's letter F.No.178/19/2008-ITA-J dated 18.10.2010 3. The Learned CIT(A) has failed to appreciate that the green card issued by the Chairman inter Ministerial Standing Committee(IMSC),as software Technology Park Scheme is merely a concession provided by the government to the units set up in STP zones to avail certain facilities on priority basis, it does not have any bearing with the allowance and/or disallowance of deduction u/s. 10B of the Act." 2. At the outset, the ld. Counsel for the Assessee su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said approval should be given by the proper authority. The ld. CIT(A), following the decision of the Tribunal in the case of M/s. Regency Creations Ltd. decided the issue in favour of the Assessee. 4. Alternately, the ld. Counsel submitted that the Assessee is otherwise eligible for claim of deduction u/s 10A as all the conditions laid down for the eligibility criteria for Sec. 10A stands fulfilled. In support of his contention he filed a copy of the audit report certified by the Auditor in Form 56F for the claim dt. 11.1.2016 for which it has necessary approval. Thus, he submitted that alternately, the Assessee's claim u/s 10A should be entertained and same can be examined by the Assessing Officer afresh. 5. The ld. DR submitted that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TPI issued by the Director, STPI working under the Ministry of Communication and Information Technology, therefore, it is entitled for claim of deduction as 100% EOU. The ld. CIT(A) had allowed the claim following the decision of the Delhi Tribunal in the case of M/s. Regency Creations Ltd. Now the said decision stands reversed by the Hon'ble Delhi High Court as stated above, wherein the Hon'ble High Court held that approval under STP scheme cannot be deemed approval for the purpose of Sec. 10B and it must be approved by the Board appointed by the Central Government. Respectfully following the decision of the Hon'ble Delhi High Court, we hold that the Assessee is not eligible for claim of deduction u/s 10B and accordingly, the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those incorporated in the memorandum of appeal and this view has been laid down by the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. reported in 229 ITR 383 which has further explained and reiterated by the Hon'ble Gauhati High Court in the case of Assam Company (India) Ltd. reported in 256 ITR 423. The relevant observation of the Hon'ble High Court reads as under : "Whether or not the applicant-company can be permitted to raise that plea only on the ground that it had not preferred any appeal or cross-objection against the order of the Commissioner of Income-tax (Appeals) is the question which now engages the attention of this court. It need not be overemphasised that the Appellate Tribunal Rules framed by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of an assessee in accordance with law. We consider it to be a solemn duty of the taxing authorities to correctly assess the tax liability of an assessee by duly following the relevant provision of law and therefore do not countenance an inflexible and mechanical adherence to the law of procedure and, in the process deny an assessee a benefit to which it is otherwise entitled in law. In our considered opinion, that could not have been the purpose of framing the Appellate Tribunal Rules. There cannot be any estoppel against law. We are therefore not in favour of granting such a primacy to the rules of procedure so as to wipe off a substantial right otherwise available to the assessee in law. We find this view of ours also reinforced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection seeks to urge a ground other than the grounds incorporated in the memorandum of appeal filed by the other side, the evidentiary facts in support of new ground must be available on record. For the view that we have taken as above, we hold that the Tribunal erred in not considering the contention of the assessee-applicant company that the warehouse charges was covered by sub-clause (iv) of section 35B(1)(b) of the Act only on the ground that the applicant-company had not filed any appeal or cross-objection. We therefore answer the question referred, in the affirmative and remand the proceeding to the Tribunal for consideration of the said contention of the applicant-assessee on merits." Accordingly, we are inclined to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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