TaxTMI 
TaxTMI 
2013 (9) TMI 883
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessee filed against the order of the Income Tax Appellate Tribunal rejecting the assessee's appeal filed as against the correctness of the order under Section 263 of the Income Tax Act, 1961 (hereinafter called as the "Act") passed by the Commissioner of Income Tax raising the following question of law :- "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in upholding the order under Section 263 of the Income Tax Act without going into the merits of the case on the issue deduction under Section 10A?" 3. The Tax Case (Appeals) filed by the Revenue, particularly Tax Case (Appeal).No.336 of 2013 relates to the assessment made consequent on the order passed under Section 263 of the Act. The issues raised in Tax Case (Appeal).No.168 of 2011 relates to assessment made consequent on the common order made under Section 263 of the Act. Hence, the same is taken along with the other Tax Case (Appeals) filed by the Revenue viz., TC (A). Nos.512 and 513 of 2011 and 336 and 337 of 2013. 4. The assessee herein is a Proprietory Concern engaged in Electronic Data Transmission (Data Processing). Admittedly, the assessee's Unit was in operation ever since....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the assessment year 2005-06. 7. As against this, the assessee went on appeal before the Income Tax Appellate Tribunal in ITA.No.656 of 2010. By order dated 28.02.2011, the Income Tax Appellate Tribunal dismissed the appeal. As against this, the assessee has preferred Tax Case (Appeal).No.168 of 2011. Consequent on the Commissioner's order, the assessment was made on the assessee. By referring to the reasoning of the Commissioner of Income Tax, the Assessing Officer held that since the assessee had used its old machinery, which was in existence from the assessment year 1999-2000, it was not entitled to the deduction under Section 10A of the Act. Thus, aggrieved by the assessment order, the assessee filed appeal before the Commissioner of Income Tax (Appeals), who agreed with the assessee. 8. As regards the assessment year 2005-06, aggrieved by the order of the Commissioner of Income Tax (Appeals), the Revenue went on appeal before the Income Tax Appellate Tribunal, which, in turn, followed its order for 2006-07 and 2007-08 and allowed the appeals. This is so in respect of assessment years 2008-09 too. Thus, the present appeals are preferred by the Revenue. 9. It may be noted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t has no relevance, because it operated on a different field; the relief under Section 10A of the Act has to be seen in the context of the provisions contained therein. 13. Reiterating the stand taken before the Income Tax Appellate Tribunal as well as the order passed against the assessee in the course of assessment proceedings, learned Standing counsel appearing for the Revenue submitted that the admitted fact is that the assessee commenced its business even before the date of registration i.e., on 27.03.2002 and when the Section contemplates deduction only in respect of industries which have commenced production after the dates mentioned in Section 10A(2) of the Act and registered as Technology Park from therein, the claim of the assessee could not be sustained as per the provisions contained in Section 10A of the Act. 14. In short, the contention of the Revenue is that the assessee, which is already in existence cannot take the benefit of Section 10A of the Act and only such of those assessees, who have commenced production with the registration as Software Technology Park as given therein under Section 10A(2) of the Act alone can claim to benefit of Section 10A of the Act. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce such articles or things or computer software. Section 10A(2) of the Act refers to the undertaking which are entitled to the benefit of Section 10A of the Act. The Section reads as under:- "Section 10A(2):- This Section applies to any undertaking which fulfils all the following conditions, namely :- (i) it has begun or begins to manufacture or produce articles or things or computer software during the previous year relevant to the assessment year - (a) commencing on or after the 1st day of April, 1981, in any free trade zone; or (b) commencing on or after the 1st day of April, 1994, in any electronic hardware technology park, or, as the case may be, software technology park; (c) commencing on or after the 1st day of April, 2001 in any special economic zone; (ii) it is not formed by the splitting up, or the reconstruction, of a business already in existence : Provided that this condition shall not apply in respect of any undertaking which is formed as a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o a new business and got registration even since 2002, the fact that it has been in existence ever since 1999, does not militate against the applicability of Section 10A of the Act. The case on hand falls under Section 10A(2)(b) of the Act. As already pointed out, even the cursory reading of Section 10A(2)(i) of the Act shows that it has relevance to industry that has begun to manufacture or produce articles or things or computer software on or after the 1st day of April, 1994. Thus, the moment the assessee satisfies this clause and it goes for the second requirement namely, registration as a Software Technology Park in accordance with the scheme of Government of India, the assessee stands benefited by the provisions of Section 10A of the Act. 19. Learned Standing counsel appearing for the Revenue however pointed out to the second proviso to Section 10A(1) of the Act and submitted that the Section will have relevance to the industry. 20. We do not think it so. The second proviso to Section 10A(1) of the Act states that where the undertaking located in any free trade zone or export processing zone is subsequently located in a special economic zone by reason of conversion of such f....