TaxTMI 
TaxTMI 
2016 (3) TMI 1020
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....isposed off by this consolidated order for the sake of convenience. 3. The revenue has raised the following grounds in both the appeals:- ITA No. 628/Kol/2011 A.Y 2007-08 (by the revenue) "1. That the ld. CIT(Appeals)-VIII, Kolkata has erred on facts and in law in deleting the disallowance made by the AO, of the exemption claimed by the assessee u/s. 10B, on the ground that the assessee company did not have any 'Certificate of Approval' from the Board of Approval appointed in that regard by the Central Government and also the A.R of the assessee, during the course of scrutiny proceedings, could not submit any ratification obtained from the 'Board of Approval' as required as per the clarification of the CBDT dated 09.03.09." ITA No. 65/Kol/2012 A.Y 2008-09 (by the revenue) "1. That on the facts and in circumstances of the case, the CIT(Appeals) has erred in law in holding that exemption u/s. 10B is allowable without ratification of the EOU scheme approved by S.T.P.I by the I.M.S.C of D.I.T Board of Approval as per provisions of law. 2. That, on the facts and in circumstances of the case and in law,, the CIT(A) has erred in holding that....
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....e operations from unit registered with STPI as Software Technology Park of India [ in short 'STPI'] as 100% export oriented unit [EOU]. 6. The brief facts of this issue are that the assessee claimed exemption u/s. 10B of the Act from its call centre operation in the return of income. The assessee started its call centre operation w.e.f 16-02-2006. The assessee claimed deduction u/s. 10B of the Act for the assessment year 2006-07 ( being the first year of its claim), which was accepted by the ld.AO u/s. 143(1) of the Act. Before the ld.AO the assessee produced the following documents in support of its claim for the assessment years under consideration:- "i) Copy of letter of permission as 100% Export Oriented Unit under STP Scheme for the I.T. Enabled Services issued by the Director, STPI, Kolkata (Sponsored by the Ministry of Communication & Information Technology, Govt. of India vide LoP No. STPK: DIR:441: 2005-06: 1548 dt.10.01.06. ii) Copy of legal agreement dt.20.01.06 made between M/s Wizard Enterprises Pvt. Ltd., a 100% Export Oriented Unit having its registered office at 3rd Floor, Anuj Chambers, 24 Park Street, Kolkata-16 (referred as "the unit") of the....
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....Ministerial Standing Committee(IMSC) instead of BOA (Board of Approval). He also stated that in the instant case approval under the STP Scheme is granted by the designated officer, Deptt. Of Information Technology and by the Inter Ministerial Standing Committee (IMSC). He further argued that the approval granted to the assessee under STP Scheme complies with all the requirements contemplated u/s. 10B of the Act when read with Industrial (Development) & Regulations) Act, 1951, Foreign Trade Policy 2004-2009, Hand Book procedure (vol.-1) and Appendix to the Hand Book. In other words, it was argued that as the unit of the assessee at Kolkata was approved as 100% Export Oriented Unit (EOU) under the STP Scheme, it must be held that it was so approved as 100% EOU by the Board referred to clause (i) of Explanation to section 10(B) of the Act. The ld. AO not being satisfied with the assessee's reply denied to grant benefit of deduction u/s. 10B of the Act. On 1st appeal, before the ld.CIT(A) the assessee reiterated its submissions as made before the ld.AO and also made an alternative claim that the assessee is also entitled for deduction u/s. 10A of the Act. All the conditions stipulated ....
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....to import the capital goods, raw materials, spares and consumables etc free of import duty for the execution of IT enabled services for export through satellite data link or in form of physical export. " 11. We find from page 47-48 of the paper book regarding copy of the green card issued by the designated officer, Govt. of India, Deptt. Of Information Technology and Chairman, Inter-ministerial standing Committee on software technology park scheme vide green card number STPK/233/06 dated 16th Feb., 2006 as an unit approved under the STP scheme of the Govt. of India as 100% export oriented unit to carry out IT enabled services (call centre). It would be pertinent to reproduce the same herein below:- " Sl No. 6047 Green Card No.STPK/233/06 Dated the February 16th 2006 SOFTWARE TECHNOLOGY PARK(STP) UNIT HAS BEEN APPROVED UNDER THE STP SCHEME OF THE GOVT. OF INDIA AS A 100% EXPORT ORIENTED UNIT FOR COMPUTER SOFTWARE. THIS UNIT IS ENTITLED TO TOP PRIORITY TREATMENT FROM ALL CONCERNED CENTRAL AND STATE GOVERNMENT DEPARTMENTS AND OTHER ORGANISATIONS IN ALL MATTERS RELATING TO THE PROJECT Sd/- DESIGNATED OFFICER FOR SECRETARY TO THE GOVT OF INDIA DEPARTMENT....
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....section 10A has been disallowed only on the ground that the approval to the STP has not been granted by the Inter-Ministerial Standing Committee in accordance with the Scheme, the demand so arising should be kept in abeyance until further orders." 13. It is not in dispute that a call centre operation has been duly notified as IT enabled services and thereby eligible for deduction for 100% export oriented unit contemplated u/s. 10A/10B of the Act. 14. We also find from page 51 of the paper book containing a letter dt. 02-09-2011 addressed to the assessee by Software Technology Parks of India (STPI), Ministry of Communication & Information Technology, Dept of IT, Govt. of India, Kolkata regarding registration for setting up STP unit ( 100% Export Oriented Unit under STP scheme). The same is reproduced here in below for the sake of convenience:- "Software Technology Parks of India Ministry of Communication & Information Technology, Dept of IT, Govt. of India Plot No.5/1 DP Sector-V, Salt Lake, Kolkata-700 091 Ph: 91-33-2367-3598/99-2367 3798/99, Fax 91-33- 2367-3597 Email:[email protected]/URLhttp://www.kol.stp.in To The Director Wi....
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.... of ARB Software (India) Ltd for the assessment year 2003-04 has not been appealed by the revenue before the tribunal. We find force in the case law as relied upon by the assessee on the decision of the co-ordinate bench of the ITAT Chandigarh (supra) in the case of Bebo Technologies P.Ltd Vs. JCIT (supra), wherein the Learned AO denied deduction u/s. 10B to the assessee on the ground that no approval was obtained from the Board appointed by the Central Govt. in exercise of power conferred by section 14 of Industrial (Development & Regulation) Act 1951 & Rules made under that Act. It was ultimately held in that case as under:- " 39. The Ld. DR for the Revenue before us has failed to point out any contrary evidence to the same. The Ld. counsel for the assessee drew our attention to the gazetted notification in this regard placed at page 16 of the paper book-II under which the powers had been given to consider the application for setting up of units under STP Scheme operated vide custom notification No. 138 and 140 dated 22.10.1991. The said committee was also empowered to consider the proposals for industrial license, foreign technical collaboration, agreement and import of....
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....ion 80A(5) is applicable only when the assessee fails to make a claim in his return of income for any deduction whereas in the instant case the assessee did make the claim though, because of a technical error, the claim was made under section 10B instead of 10A. In his opinion, quoting of wrong section should not deprive the assessee from claiming deduction so long as the other conditions for making such claim are satisfied. He relied upon the circular issued by the CBDT dated 11.04.1955 wherein it was observed that it is the duty of the AO to guide the assessee with regard to eligibility to claim deduction; in the instant case when the assessee claimed deduction under section 10 B the AO ought to have guided the assessee with regard to eligibility to claim deduction under section 10A of the Act." 18. We also find that the contents of audit report in form no. 56F and 56G together with the computation mechanism remains the same for claiming the deduction u/s. 10A/10B of the Act. It was argued alternatively by the ld.AR that the decision of the ld.AO is to educate the assessee of its rights and entitlements as per law and cannot take advantage of ignorance of assessee. In this reg....
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....ed. 21. In view of aforesaid facts and circumstances and judicial precedents as relied upon by the ld.AR before us, the grounds of cross objections as filed by the assessee before us are allowed. 22. In the result, the appeals of the revenue are dismissed and cross objections of the assessee are allowed as stated above. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 04 - 03 - 2016 ============= Document 1 Whether applies Whether applies Section 10A/ Relevant sub- to Section 10B Relevant sub- or explanation section, proviso or section, proviso explanation Sl.No. Proposition 1. Benefit of deduction for export of articles/ computer software Benefit is available for a period of 10 consecutive A.Ys. beginning with the year in which undertaking begins to produce/manufacture such article/ computer software 3. Definition of" computer software" is Any product or service of the similar nature as may be notified by CBDT. CBDT vide Notification No.SO 890(E) dated 26.09.2000 has notified the list of Information Technology enabled products or services eligible for benefit of exemption "Call Centre" activity fi....