TMI Blog2011 (3) TMI 1813X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessment was completed but the Assessing Officer denied the deduction claimed under Section 10B of the Act on the ground that the assessee had commenced production during the assessment year 1993-94 and the ten years holiday period lapsed in the year 2003-04 itself. Aggrieved by the said order, the assessee preferred an appeal to the Commissioner of Income Tax (A). In the appeal, the assessee fairly conceded that they are ineligible to claim exemption under Section 10B in view of the laps of 10 assessment years but they claimed the benefit of deduction under Section 80HHE for the assessment year 2004-05 for the first time. In support of the said claim, they produced the audit report in Form 10CCAF as prescribed under Section 80HHE(4) as well as the certificate duly certified by its auditors that the assessee/company had realised the entire consideration towards exports in convertible foreign exchange within the stipulated period as contemplated by the provisions of Section 80HHE(2). Since, this being additional evidence, the Commissioner-Appeals forwarded this additional evidence to the file of the Assessing Officer and called a remand report specially on the issue regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars as may be prescribed and only then his claim for deduction would be considered by the authorities. Further, he contended that the deductions under Section 80HHE falls within Chapter 6(A) of the Act. Section 80A deals with deductions to be made in computing total income and Section 80A(5) mandates that if the assessee fails to make a claim in his return of income for any deduction under any of the provisions of this chapter, no deduction shall be allowed to him thereunder. Therefore, he contends, when admittedly in the returns filed by the assessee, there was no claim for deduction under Section 80HHE and as the legal requirement of sub-section (4) of Section 80HHE was not complied with, both the appellate authority as well as the Tribunal were in error in considering the said claim and in allowing the same. Therefore, he submits the impugned order requires interference. 4. Per contra, learned counsel appearing for the assessee contended that the requirement in law is that there should be a claim for deduction. The said claim need not be specific and insofar as compliance of sub-section 4 of Section 80HHER is concerned, it is held to be directly and in fact before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any means; (ii) providing technical services outside Indian in connection with the development or production of computer software. There shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee. (a deduction to be extent of the profits, referred to in sub-section (1B)), derived by the assessee from such business. Provided that if the assessee, being a company, engaged in the export out of India of computer software, issues a certificate referred to in clause (b) of sub-section (1A), that in respect of the amount of the export specified therein, the deduction under this sub-section is to be allowed to a supporting software developer, then the amount of deduction in the case of an assessee shall be reduced by such amount which bears to the total profits derived by the assessee from the export, the same proportion as the amount of the export turnover specified in such certificate bears to the total export turnover of the assessee. 90HHE(4): The deduction under sub-section (1) shall not be admissible unless the assesee furnishes in the prescribed form, along with the return of income, the report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computing the total income under Chapter 6A of the Ac, first he must put forth his claim in the returns filed, then he must satisfy the requirement of sub-section 4 of Section 80HHE. If this requirement is not complied with, the authorities are precluded from allowing the deduction. Therefore, in the instant case both the appellate authority as we;; as the Tribunal acted contrary to sub-section (5) of Section 80A in granting deduction when admittedly no claim for deduction was made in the returns. 8. It was submitted on behalf of the assessee that there was a claim for deduction but it was not specifically claimed under which provision of law they are entitled to the deduction. In view of the language used in the aforesaid provision, the requirement is not a mere claim for deduction. The entire chapter deals with deductions. Therefore, if the assessees wants to avail the benefit of deduction in the returns, he must specifically mention under which provision of law he is claiming deduction. May be if he is entitled to deduction under more than one provision, it is open to him to make such a claim under special provision. Similarly, it is always open to him to put forth the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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