TaxTMI 
TaxTMI 
2015 (7) TMI 108
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....t.30.11.2012 wherein the income of the assessee was determined at Rs. 2,84,84,413. This was in view of the disallowance of the deduction of Rs. 1,72,07,475 claimed by the assessee under Section 10B of the Act. 2.2 Aggrieved by the order of assessment for Assessment Year 2010-11 dt.30.11.2012, the assessee preferred an appeal before the CIT (Appeals) - I, Bangalore. The learned CIT (Appeals) dismissed the assessee's appeal by order dt.31.7.2013, wherein the learned CIT (Appeals) upheld the action of the Assessing Officer in denying the assessee's claim for deduction under Section 10B of the Act. Further, on a miscellaneous application by the assessee, seeking alternate claim of deduction under Section 10A of the Act, which was not considered in the impugned order dt31.7.2013, the learned CIT (Appeals) by order under Section 154 of the Act dt.11.9.2013, rejected the assessee's alternate claim for deduction to be granted under Section 10A of the Act also. 3. Aggrieved by the order of the CIT (Appeals) - I, Bangalore for Assessment Year 2010-11 dt.31.7.2013, the assessee has preferred this appeal before this Tribunal raising the following grounds :- "1). The order ....
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....e Act. Grounds at S.Nos.7 to 10 - Deduction u/s.10A of the Act (Assessee's alternate claim) 5.1.1 The learned Authorised Representative was heard in respect of the grounds raised (supra). In written submissions filed by the learned Authorised Representative on 6.2.2015, the assessee submits and contends as under :- " I. Non consideration of EOU circular No.68, dt.14.05.2009 in proper prospective : The EOU circular dt.14.05.2009 clearly mentioned why the above circular was issued by referring to the board circular dt.09.03.2009. Hence, the conclusion of both the assessing officer and Commissioner of Income Tax (Appeals), Bangalore that even after clarification on 14.05.2009 only the circular issued on 09.03.2009 is applicable has not appreciated the circular in proper perspective. The EOU circular which is subsequence to boards circular clarifying the difficulties in circular dt.09.03.2009 should be applicable. Hence, as per circular the approval granted by development commissioner is under delegated power of the board of approval. Hence, the assessing officer conclusion that the approval granted by Development Commission is not approved by Board of Approval is no....
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....peals) in the order passed dt.31.07.2013 failed to consider this ground. The appellant filed a misc. application dt.02.09.2013 to consider the alternative ground and pass the order. The Commissioner of Income Tax (Appeals) in the order U/s 154, dt.07.09.2013 to his order dt.31.07.2013 dismissed the grounds on the following reason : "In the instant case Form No.56F has been filed on 30/07/2013 i.e., after completion of assessment. Moreover, originally deduction has been claimed u/s 10B of the Act and if claim deduction u/s 10A of the Act, the appellant should have filed revised return of income within permissible period and claimed deduction accordingly. In this, matter I relying upon the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd Vs CIT (2006) 284 ITR 323(SC). In absence of such remedial procedure, shifting of deduction u/s 10B to 10A of the Act is rejected". The Commissioner of Income Tax (Appeals) reliance on the decision of Hon'ble Supreme Court in Goetze India Ltd. v/s CIT (2006) 284 ITR 323 to hold that the appellant is not entitled to alternative claim U/s 10A of the Act. The appellant in the written submission relied on the board circula....
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....f the Hon'ble Apex Court in the case of State of Kerala and others Vs. Kurian Abraham Private limited and another (2008) 303 ITR 284 (SC) ". In this connection the appellant relies on the decision of Hon'ble Bombay High Court in the case of CIT Vs. M/s Pruthvi Brokers & Shareholders (P) Ltd., in ITA No.3908 of 2010 dt.21.06.2012 (2012) 208 Taxman 498 (Bom) (copy enclosed), wherein at para 23 held as under : "It is clear to us that the Supreme Court did not hold anything contrary to what was held in the previous judgment to the effect that even if a claim is not made before the assessing officer, it can be made before appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment. In fact, the Supreme Court made it clear that the issue in the case was limited to the power of the assessing authority and that the judgment does not impinge of the power of the Tribunal U/s 254". In this circumstances the appellant relies on the decision of Hon'ble Madras High Court decision in CIT Vs M/s. Heartland KG information Ltd (2013) 39 Taxman.com 132 which is at para 6 held as under : "Thus a S....
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....f Income Tax (Appeals) which was later modified on C/M application before the Hon'ble Delhi High Court set aside to tribunal to allow alterative claim U/s 10A, the appellant is eligible for deduction U/s 10A which was claimed before Commissioner of Income Tax (Appeals) may kindly be allowed." 5.1.2 In addition to the above, the learned Authorised Representative submitted that there was no dispute with regard to the fact that the assessee had been claiming and was being allowed deduction under Section 10B of the Act. In this context, the learned Authorised Representative placed on record copies of the order of assessment for Assessment Year 2008- 09; the statement of computation of income thereof and Form No.564, which are placed at pages 35 to 41 of the assessee's paper book filed on 6.2.2015, to show that the deduction claimed by the assessee under Section 10B of the Act was allowed. According to the learned Authorised Representative, the assessee had wrongly claimed the deduction under Section 10B of the Act instead of under Section 10A of the Act. The learned Authorised Representative submitted that even in the cases of CIT V Regency Creations Ltd. / Valiant Communication....
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....hat decision has been confirmed by the Hon'ble High Court of Madras in its order reported in (2013) 39 Taxmann.com 132 (Madras), the assessee's alternate claim for deduction under Section 10A of the Act ought to be restored to the authorities below for fresh examination in accordance with law. 5.2 Per contra, the learned Departmental Representative supported and relied on the decisions of the orders of the authorities below. 5.3.1 We have heard the rival contentions and perused and carefully considered the material on record, including the judicial pronouncements cited and placed reliance upon. 5.3.2 The facts of the matter, as emanate from the record are that, in the period relevant to Assessment Year 2010-11 the assessee in its return of income had claimed deduction of Rs. 1,72,07,475 under Section 10B of the Act in respect of export of computer software in its STPI unit since it is registered as a 100% EOU exporting software products. The Assessing Officer required the assessee, inter alia, to substantiate its claim as to whether the necessary certificate of approval by the Development Commissioner as ratified by the Board for approval of the EOU scheme had been....
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.... been claimed under Section 10B of the Act and if claim deduction under Section 10A of the Act, the appellant should have filed revised return of income within permissible period and claimed deduction accordingly. In this, matter I relying upon the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. Vs. CIT (2006) 284 ITR 323 (SC). In absence of such remedial procedure, shifting of deduction under Section 10B of the Act is rejected." 5.3.4 From a perusal of the order of assessment, it is seen that the question for consideration before the Assessing Officer was whether the assessee is eligible for deduction under Section 10B of the Act in the absence of requisite approval from the Board of Approval ratifying the permission granted by the Development Commissioner. Admittedly, the assessee had not obtained the required approval envisaged under Section 10B of the Act. The assessee's alternate claim raised in appellate proceedings before the learned CIT(A) was that it be allowed deduction under Section 10A of the Act, for which it had the required approvals, which was not accepted. With regard to the question as to whether the assessee can be allowed to s....