TMI Blog2016 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income for assessment year 2003-04 01/12/2003 declaring income of ₹ 24,59,770/- after claiming deduction under section 10A of the Income Tax Act, 1961 ( in short the Act ) amounting to ₹ 31,89,63,929/-. The assessee, a part of the WNS Group and in May 2002, WNS (Mauritius) Ltd., a wholly owned subsidiary of WNS Holdings acquired the entire share capital of the assessee from M/s. British Airways. The assessee carries out its business from 4 Software Technology Parks through seven units located at Mumbai( 2 units), Pune (3 units) and Nasik (2 units). The deduction under section 10A of the Act was claimed in respect of Mumbai Unit-1 and Pune unit-1 only. Subsequently, the assessee filed a revised return of income on 23/03/2014 declaring total income at Nil after setting off the loss from Pune Unit-II against income from Mumbai Unit-I and Pune Unit-I and claiming deduction of ₹ 31,89,63,929/- under section 10A of the Act. The assessee had also put forth an alternate claim that it be granted deduction under section 80HHE of the Act in case the claim under section 10A of the Act was not allowed. The case was taken up for scrutiny and the assessment was compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut allowed the assessee s alternate claim for deduction under section 80HHE(4) of the Act amounting to ₹ 16,59,23,129/-. The assessment was accordingly completed under section 143(3) r.w.s. 254 of the Act vide order dated 23/12/2010. 2.5 On appeal by the assessee, the CIT(A) rejected the assessee s claim for deduction under section10A of the Act on the ground that sub-section (9) to section 10A of the Act being omitted by Finance Act, 2003 w.e.f. 1/4/2004, the provisions of Section 10A(9) of the Act were in the force for assessment year 2003-04. Holding thus, the CIT(A) dismissed the assessee s appeal vide the impugned order dated 1/3/2013 3.1 Aggrieved by the order of the CIT(Appeals)-22, Mumbai, the assessee is in appeal before the Tribunal raising the following ground:- 1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)-22, Mumbai has erred in upholding the order of the learned Income Tax Officer -10(2)(4), Mumbai and disallowing the claim of deduction under section 10A of the Act of INR 31,89,63,890/- in respect of the Appellant s STP Units in the light of the erstwhile provisions of section 10A(9) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said omission is different from repeal, the saving clause provided in section 6 of the General Clauses Act is not applicable. Therefore, section 10B of the Act should be read as though it never had sub-section(9) in it all in all the proceedings under the Act. It is submitted that since the facts of the case on hand are identical to those in the case of GE Thermometrics India Pvt. Ltd. (supra) rendered in the context of section 10B(9) of the Act, which is pari-materia to section 10A(9) of the Act, similarly, section 10A of the Act should also be read as if it never had sub-section(9). 3.2.4 The Ld. Representative for the assessee further submitted that the aforesaid decisions of the Co-ordinate bench in the case of GE Thermometrics India Pvt. Ltd. (supra) has been upheld by the Hon ble Karnataka High Court vide order in ITA No.876 877/2008 dated 25/11/2014, wherein Revenue s appeal against the aforesaid order was dismissed and the substantial question of law was answered in favour of the assessee. 3.2.5 The Ld. Representative for the assessee submits that in view of the facts and circumstances of the case on hand and the judicial pronouncements relied upon, the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2003-04(supra), the Ld. Representative for the assessee submitted that in this order also the submissions of the Ld. Departmental Representative are factually incorrect since the said order only upholds the assumption of jurisdiction by the CIT under section 263 of the Act and has not adjudicated on the assessee s claim for deduction under section 10A of the Act in the light of the provisions of sub-section (9) thereof. 3.5.1 We have heard the rival contentions and perused and carefully considered the material on record, including the judicial pronouncements cited. The issue before us for consideration and adjudication is whether the order of the authorities below were correct or not in disallowing the assessee s claim for deduction under section 10A of the Act amounting to ₹ 31,89,63,,890/- in respect of the assessee s STPI units in Mumbai and Pune in the light of the erstwhile provisions of sub-section(9) of section 10A of the Act. 3.5.2 In the year under consideration WNS(Mauritius) Ltd. a wholly owned subsidiary of WNS Holdings acquired the entire share capital of the assessee from British Airways Ltd., U.K. In the return of income the assessee for assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent from repeal, the saving clause provided in section 6 of the General Clauses Act is not applicable, therefore, section 10B of the Act is to be read as though it never had sub-section (9) in it at all in all proceedings of the Act. 3.5.4 In coming to this view we place reliance and draw support on the decision of the Hon ble Karnataka High Court in the case of GE Thermometrics India Pvt. Ltd. in ITA Nos. 876/2008 dated 25/11/2014 for assessment year 2003-04 on Revenue s appeal against the order of the Co-ordinate Bench of the ITAT(supra). In para 4 of this order the substantial question of law before the Hon ble High Court was: Whether the Tribunal was correct in holding that in view of the omission of sub-section 9 to Section 10B of the Act, w.e.f. 01.04.2004, it should be understood that the said section never existed in the statute book and therefore the benefit claimed by the assessee u/s. 10B should be allowed? Their Lordships at para 7 and 8 of their order (supra) have answered the question holding as under:- 7. The Apex Court in the case of KOLHAPUR CANESUGAR WORKS LTD. VS UNION OF INIDA reported in AIR 2000 SC 811 dealing with the effect of deletion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case and taking into account the legal precedents, we are of the considered opinion that the aforesaid finding rendered by the Hon ble Karnataka High Court in the case of GE Thermometrics India Pvt. Ltd. (supra) squarely applies to the case of the assessee; section 10B and 10A of the Act being pari-materia . Respectfully following the aforesaid decision of the Hon ble Karnataka High Court in the case of GE Thermometrics India Pvt. Ltd. (supra) we hold that there being no saving clause or any amendment while omitting sub-section (9) of section 10A of the Act, the result is that it is to be read as having never been passed and had never existed on the statute. In this view of the matter, we reverse the order of the CIT(A) on this issue and direct the Assessing Officer to allow the assessee s claim for deduction under section 10A of the Act for assessment year 2003-04. It is accordingly ordered. 3.5.6 Before parting, we record that we have carefully perused the orders of the Co-ordinate benches of ITAT in ITA No.2566/Mum/2009 for assessment year 2004-05 and ITA No.348/Mum/2008 dated 17/06/2008 cited by the Ld. Departmental Representative. We find that contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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