2015 (6) TMI 445

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....ess of software development and e-learning. The return of income for the A.Y. 2010-2011 was filed by it on 09.07.2010 declaring total income of Rs. 6,53,510 after claiming deduction of Rs. 34,95,030 under section 10B of the Act and for A.Y. 2011-2012 the return of income was filed on 19.07.2011 declaring total income of Rs. 6,79,147 after claim deduction of Rs. 1,63,20,501 under section 10B of the Act. During the course of assessment proceedings the claim of the assessee for deduction under section 10B was examined by the A.O. and on such examination, he held that the assessee was not entitled for deduction under section 10B for the following reasons: 1. "The assessee has not been recognized as 100% Export Oriented Undertaking (EOU) by the....

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....extending the benefit U/s.10A to the STP unit is otherwise eligible for exemption U/s.10B on the ground of its being 100% EOU, there was possibly no reason for the Legislature to bring about an amendment extending the benefits of Sec.10A to the units under STP Scheme. Reliance in this regard is placed on the decision of the Hon'ble Jurisdictional Tribunal in the case of Infotech Enterprises Ltd (85 ITD 325). 4. Reference in this regard may be made to the CBDT's Instruction (No.2 F.No.178/ 19/2008-ITAT, dt.09.03.2009 and corrigendum dt.08.05.2009) which clarified as under :- "The matter regarding validity of approvals given by the Development Commissioner has been examined in the Board. It has been decided that an approval granted ....

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....he A.O. in the assessment completed under section 143(3) vide order dated 30.03.2013 and 27.02.2014 for both the assessment years under consideration. 3. Against the orders passed by the A.O. under section 143(3), appeals were preferred by the assessee before the Ld. CIT(A). During the course of appeal proceedings before the Ld. CIT(A), additional ground was filed by the assessee for both the assessment years under consideration raising an alternative claim that it is entitled for deduction under section 10A. The additional evidence in the form of certificate in the prescribed Form 56F was also filed by the assessee in support of its claim for deduction under section 10A. Keeping in view this new alternative claim raised by the assessee fo....

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....er of the Ld. CIT(A), the Revenue has preferred the present appeals before the Tribunal. 4. We have heard both the parties and also perused the relevant material on record. It is observed that the issue involved in the present case is squarely covered by the decision of the Tribunal rendered in the case of M/s. Vivera IT Applications Consulting (P) Ltd., Hyderabad vs. ITO, Ward 3 (2), Hyderabad vide its order dated 10.10.2014 passed in ITA.No.129/Hyd/2014. In the said case, a similar alternative claim made by the assessee for deduction under section 10A instead of deduction under section 10B for the first time before him was not entertained by the Ld. CIT(A) on the ground that the required report of the auditor in Form 56F for claiming ded....