TMI Blog2017 (3) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Bhalla, CIT, DR, For The Respondent : Shri J. P. Shah, AR ORDER PER Manish Borad, Accountant Member . These two appeals of Revenue for Asst. Year 2008-09 2009- 10 are directed against the common order of ld. Commissioner of Income Tax(A)-VIII, Ahmedabad, dated 31.12.2013 vide appeal no.CIT(A)-VIII/ACIT/Cir-4/173 174/11-12 arising out of separate orders u/s 143(3) of the Income-tax Act, 1961 (in short the Act) framed by ACIT, Cir-4, Ahmedabad of even dated 8.11.2011. As the issues involved in these appeals are similar relating to the same assessee, they have been heard together and are being disposed of by this common order for the sake of convenience. 2. Briefly stated facts as culled out from records are that Assessee being a private limited company engaged in the business of providing of customized software for computer. It filed its return of income for Asst. Year 2008-09 on 28.09.2008 declaring total income at ₹ 13,35,346/- after claiming deduction u/s 10A of the Act at ₹ 11,97,44,182/-. Case was selected for scrutiny assessment and notice u/s 143(2) of the Act dated 27.7.2011 was duly served on the assessee. Necessary details were furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Authorised Representative also submitted that there is no dispute of the fact that business of the assessee company is 100% export oriented unit and deduction of profits is eligible in both the sections 10A and 10B of the Act. However, ld. Assessing Officer passed assessment order for Asst. Year 2008-09 and 2009-10 mechanically following the reasons in earlier years given in Asst. Year 2003-04 without considering its applicability in Asst. Year 2008-09 2009-10. 7. We have heard the rival contentions and perused the record placed before us. In Revenue s appeal for Asst. Year 2008-09 2009-10 the sole grievance is against the ld. Commissioner of Income Tax(A) s order allowing exemption u/s 10A of the Act to the assessee. We observe that during the course of assessment proceedings ld. Assessing Officer denied exemption u/s 10A of the Act by following his predecessor s order in previous Asst. Year 2004- 05 and ignoring the fact that in assessee s own case the Co-ordinate Bench has confirmed the ld. Commissioner of Income Tax(A) s order allowing assessee s claim of deduction u/s 10B of the Act for Asst. Year 2003-04 to 2007-08. We further observe that ld. Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10 A in form 56F is not correct. It has been mentioned that in point 8 of the report, the appellant mentioned that it was eighth year of deduction whereas as per the appellant's own submission and earlier record it was evident that it was the first year of deduction. Earlier the appellant was claiming deduction under section 10 B and now it has switched for deduction under section 10 A. The appellant has not established first year of claim. He has placed reliance on the judgement of honourable Delhi High Court in the case of Regency Creations 27 taxman.com 322. The first issue to be decided is whether the additional grounds raised by the appellant are admissible or not. In my considered opinion the grounds admissible as there is no new fact which has been brought on record. The claim of the appellant under section 10 A or 10 B is legal in nature and is also bona fide. It is a known fact that there is some confusion regarding the claims under section 10 A and 10B and there is considerable litigation in ITAT and High Court on the issue. Many conditions in section 10 A and 10B are overlapping. Honourable Bombay High Court in the case of the Prufhvi Brokers and Shareholde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er years and has been held to be valid formation. The earlier objection of having more than 20% old plant and machinery has also been examined by ITAT and it has been held that the disallowance was not proper. Further, the appellant has rightly written in form 56F that it was the eighth year of claim of deduction. Appellant is not making the claim for the next 10 years. Even the judgement mentioned by the AO in its report in the case of Sami Labs Ltd. 334 ITR 157 (Karnatak High Court) holds that the starting point for limitation for claiming benefit u/s.l0B would commence from the year of manufacture or production of undertaking. The assessee would not be liable to claim such deduction in subsequent years unless said initial test on date of starting point of limitation has been satisfied. The appellant claimed deduction for the first time under section 10 B for A.Y 2002 - 03. The appellant is not making the claim for the first time. It is observed that there is no change in the setup of the appellant company it is the same which claimed the deduction under section 10 B for the first time for A.Y 2002- 03. It has been held by honourable Madras High Court in the case of Nagesh Chundu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent year. As has been discussed in the preceding discussion the appellant satisfies all the conditions and is accordingly entitled for deduction under section 10 A. It has also submitted that it satisfies all the conditions related to the claim of deduction under section 10A and accordingly the same should be allowed. In view of the above discussion I am of the considered opinion that the appellant is entitled for deduction under section 10 A, which has been rightly claimed in the return of income. The additional grounds raised by the appellant have also been examined and it is noted that since the claim of the appellant under section 10 A has been allowed, there is no need to decide the additional grounds.The appellant is entitled for deduction under section 10A as it is a unit registered under STP and it fulfils all the conditions prescribed in the section. In my considered opinion the grounds now raised by the appellant are of academic nature and therefore, need not be decided. Even otherwise the claim of the appellant under section 10B has to be allowed by following the rules of consistency and the fact that the issue has been settled by the orders of the ITAT Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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