TMI Blog2017 (10) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961 is not correct. In the Paper Book filed by assessee the certificate of the Chartered Accountant filed in Form 56F for the financial years 2009-10, and 2010-11 corresponding to assessment years 2010-11 and 2011-12 respectively certifying the compliance of the claim made for deduction under section 10A of the Income Tax Act, 1961 has been enclosed. The certificate of registration issued by Electronic Software Technology Park of India, Thiruvananthapuram in the name of the assessee has been enclosed . The eligibility of the unit registered with STPI to claim deduction u/s. 10A of the Act has been discussed at length in the order of the Hon ble Co-ordinate Bench of this Tribunal in the case of M/s. QBurst Technologies Pvt. Ltd. [ 2015 (11) TMI 1755 - ITAT COCHIN] - we hold that the CIT(A) is justified in allowing the alternative plea of the assessee u/s. 10A of the I.T. Act. - Decided against revenue. - ITA Nos 249 & 334/Coch/2016 (Asst Years 2010-11 & 2011-12), ITA No 297/Coch/2016 (Asst Year : 2010-11) - - - Dated:- 4-10-2017 - S/SHRI P B BANSAL, VICE PRESIDENT GEORGE GEORGE K, JM Revenue By : Sh A Dhanaraj, Sr. DR Revenue By : Sh Pankajakshan C. Govind, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is entitled and to allow the same as pleaded. While allowing the alternative plea of the assessee, the CIT(A) relied on the order of the Tribunal in the case of C.W.P. Taylor vs. DCIT in I.T.A. No. 695/Coch/2008 dated 28/07/2009. Further the CIT(A) relied on the judicial pronouncements which are listed at para 4.3 of the impugned order for the proposition that the powers of the Commissioner of Income-tax are co-terminus with that of the Assessing Officer. 4.3 The Revenue, being aggrieved by the order of the CIT(A) for the assessment years 2010-11 and 2011-12 has filed the appeals in I.T.A. Nos. 249/Coch/2016 and 334/Coch/2016. The Ld. DR submitted that the assessee s unit is not eligible for 10A deduction as it is not situated in Free Trade Zone. 4.4 The Ld. AR on the other hand submitted that the issue in question is directly covered in favour of the assessee by the following orders of the Tribunal: 1. CWP Taylor vs. DCIT in ITA No.695/Coch/2008 dated 28.07.2009 2. ITO vs. Travancore Analytics Pvt. Ltd. in ITA No. 69/Coch/2014 dated 28/08/2014. 3. ACIT vs. QBurst Technologies Pvt. Ltd. in ITA Nos.172 173/Coch/2015 dated 17/11/2015. 4. ITO vs. Device Driven (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellate authority has allow the alternative claim for deduction under section 10A of the Act based on the order of the coordinate Bench of the Tribunal in the case of CWP Taylor in ITA No.695/Coch/2008 (order dated 28.7.2009). The CIT(A) has also verified the facts relating to the compliance of all the conditions prescribed under section 10A of the Act (in para 3.6.8 for A.Y. 2010-11). Based on the verification of facts, the CIT(A) directed the Assessing Officer to allow deduction under section 10A of the Act. The following judgment of the Hon ble Delhi High Court and orders of the ITAT have held that when deduction u/s 10B is denied, it is the duty of the revenue to examine whether the alternative claim of deduction u/s 10A can be granted on facts and circumstances of the case: i) Fast Booking (I) Pvt Ltd vs. DCIT in ITA 334/2015 judgment dated 2.9.2015 (Delhi High Court judgment) ii) M/s. Device Driven (India) P. Ltd. (ITA No. 282/Coch/2013 (order dt 6.6.2014) iii) Cronos Consulting India P Ltd vs. ACIT (ITA No.15/Coch/2014. 9. Further, we notice that the Assessing Officer in the remand report has not state that the assessee has not satisfied the conditions prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion petition, we are satisfied that the delay in filing the appeal cannot be attributable to any latches on the part of the assessee. Hence we condone the delay in filing the assessee s appeal and proceed to dispose of the matter on merits. 6.2 Briefly stated the facts of the case are as follows: The assessee is a wholly owned subsidiary of its parent company. It is 100% EOU and has no domestic sales. During the financial year relevant to the assessment year 2010-11, an amount of ₹ 4,91,26,013/-, being the amount payable to the parent company on account of management fee charges expensed and claimed deduction for tax purposes in the earlier years was treated as no longer payable on the basis of waiver of liability by the parent company. This amount was credited to income in the P L account for the relevant assessment year. The amount was claimed as deduction u/s. 10B of the Act. However, while completing the assessments, the Assessing Officer did not consider the above income as part of the export turnover but included the same in the total turnover while computing deduction u/s. 10B of the Act. The Assessing Officer however did not allow the claim of deduction u/s. 10B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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