TaxTMI 
TaxTMI 
2013 (7) TMI 515
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng which was engaged in manufacturing metal and plastic from rubber was split from the rest of the business of M/s MSSL and was sold to a newly incorporated company by the name of M/s Woco Motherson Elastomer Limited (for short WMEL) which is assessee in the present case. The new company i.e. the assessee was incorporated on 16.3.2004 and was given a certificate of commencement of business by Registrar of Companies w.e.f. 30.4.2004. The assessee company took over the business of said undertaking sold by M/s MSSL on slump sale basis. The said undertaking was already registered as 100% Export Oriented Unit (EOU) was eligible for benefit u/s 10B of the Act and even was availing benefit of deduction u/s 10B of the Act. The assessee while filing the returns of income for the years under consideration continued to claim benefit of section 10B as in its opinion the assessee was eligible for benefit u/s 10B of the Act as the whole undertaking which was eligible for such benefit was taken over. 3. The Assessing Officer however held that deduction u/s 10B(1) was allowable only to a newly established 100% EOU whereas in his opinion the business was set up by splitting the existing business....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... where during any previous year the ownership or beneficial interest in the undertaking is transferred by any means, the deduction under sub section (1) shall not be allowed to the assessee for the assessment year relevant to such previous year and the subsequent year. Highlighting the above said section, the Ld AR submitted that before 1.4.2004 such provision was applicable which has been omitted by Finance Act, 2003 w.e.f. 1.4.2004. Therefore, in view of the fact that before 1.4.2004, there was a special sub section (9) which disentitled the deduction u/s 10B of the Act in case of transfer of beneficial ownership, the Ld AR argued that legislature intention was made clear with the omission of sub section that after 1.4.2004 no such deduction will be disallowed even in the case of change of ownership of the undertaking. Reliance in this respect was placed on the case law of Samsung India Software Pvt. Ltd. v. ACIT, Bangalore decided by ITAT 'A' Bench Bangalore in I.T.A./ No.399/Bang./2012. Our attention was also invited to para 14 of the said order placed at paper book page 35. In view of findings of Hon'ble ITAT it was argued that the facts of the case of the assessee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....placed at pages 105 to 111 of paper book dated 10.3.2011. Under similar circumstances, the ITAT Delhi Bench in the case of ITO v. Heartland Delhi Transcription & Services Pvt. Ltd. in I.T.A. Nos. 1551 to 1553/Del/2008 had dealt with the same situation. In that case the dispute were for assessment year 2002-03 to 2004-05. The Hon'ble Tribunbal relying upon the provisions of sub section (9) which existed up to 31.3.2004 did not allow the claim of assessee u/s 10B whereas for assessment year 2004-05, it allowed the same as sub clause (9) was deleted w.e.f. 1.4.2004. The findings of the Tribunal are summarized below:- "We have considered the facts of the case and submissions made before us. The facts are that the STPI set up an undertaking on the basis of the letter of intent issued by ISTP in financial year 1998-99. The business of the undertaking is to digitize medical prescription and export it. This business has been transferred to the assessee in financial year 2000-01. The HICS set up the business with new machinery and it fulfilled all the conditions mentioned in sub section (2) of sec.10B. The case of the assessee is that deduction u/s 10B(1) is granted to an under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9;ble Tribunal held as under:- "Coming to the facts of this case, there is no impediment in giving the finding that for assessment year 2004-05, the assessee is entitled to deduct the profits and gains of the undertaking from its total income. The decision in the case of Heartland KG Information Ltd. (supra) supports the case of the assessee. This decision pertain to assessment year 2004-05 for which the provision contained in sec. 10B(9) does not exist on the statute book. Therefore, following this decision, it is held that the assessee is entitled to the deduction u/s 10B for this year. 10. Similarly, in the case of Samsung Software India Pvt. Ltd (supra) the issue was decided by 'A' Bench of the Bangalore Bench in I.T.A. No.399/Bang/2012 wherein the Hon'ble Tribunal held as under:- "We have considered the submissions of both the parties and carefully gone through the material available on record. It is noticed that a similar issue having identical facts has been decided by the ITAT Bench 'B' Bangalore in ITA No.623 & 847/Bang/2010 for the ssessment years 2004-05 & 2005-06 respectively in the case of DCIT v. M/s. LG Soft India Pvt. Ltd., o....