9911796707
TMI Blog2022 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.50/CTK/2015 for the Assessment Year (AY) 2011-12. 2. While admitting the present appeal on 27th November, 2017 the following questions were framed for consideration by this Court: "(i) Whether under the facts and circumstances of the case, the appellant even being under Software Technology Part (defined in Section 10(A)(2) (6) of I.T. Act, the learned Tribunal was justified to reject the Tax Exemption claimed U/s.10(A) of the Act stating the reason that the appellant is not a unit under Special Economic Zone. (ii) Whether under the facts and circumstances there exists any issues to be decided by the Appellant Tribunal when the respondent himself settles the issue revising the Original assessment and original demand (U/s.156 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporated in the financial year 2003-04 and had not claimed deduction under Section 10A since then. According to the AO, it could not claim deduction under Section 10A "all of a sudden after 5-6 years of its incorporation". Therefore, the amount of Rs.3,67,15,136.09 claimed by the Assessee under Section 10A of the Act was disallowed and added back. 6. The appeal filed by the Assessee against the above assessment order was allowed by the Commissioner of Income Tax (CIT) (Appeals) by an order dated 13th November, 2014. According to the CIT(A), the Assessee, which had initially claimed deduction under Section 10A of the Act was "forced to change tack" and claimed exemption under Section 10B of the Act since Software Technology Park (STP) Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessee would not be entitled for deduction under Section 10A of the Act since it is not a unit established under the Special Economic Zone (SEZ). 8. This Court has heard the submissions of Mr. Sidhartha Ray, learned counsel appearing for the Appellant/Assessee and Mr. T.K. Satapathy, learned Senior Standing Counsel appearing for the Respondent/Department. 9. It must be noted at the outset that even before the AO, there was considerable confusion whether the Assessee was in fact claiming deduction under Section 10A of the Act or Section 10B of the Act. Apparently, in the earlier AYs, the Assessee had claimed exemption only under Section 10B of the Act. However, for the AY in question, according to the Appellant, its Auditor wrongly fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction, the assessee-company has not committed any mistake, rather the mistake has been committed by the auditor, who instead of issuing certificate in form 56G, has been issued certificate in form 56F leading to filling of ITR under different heads. Madam, for technical mistake committed by the auditor and at the time of filling ITR which was done by outsider, the assessee company or its promoters/directors are not supposed to be penalized. Therefore, the assessee company sincerely requesting you to kindly considers the deduction/exemption u/s. 10B on the basis of the facts and objective of the company and not on the basis of technical mistake committed at the time filling of ITR and auditor certificate." 13. In other words, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained that its claim for deduction only under Section 10B of the Act, it cannot be allowed now to turn around and ask that its claim for deduction should be considered under Section 10A of the Act. 18. Therefore, the Question No.(i) framed by this Court which proceeds on the basis of the Assessee's claim under Section 10A of the Act has not been correctly framed. In terms of the Proviso to Section 260A of the Act, this Court considers it necessary to reformulate Question No.(i) as under: "Whether the Assessee was entitled to exemption under Section 10B of the Act as claimed by it?" 19. As far as the above question is concerned, there can be no doubt that with the Assessee not having satisfied the mandatory requirement under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
