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2016 (5) TMI 1327
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....ssee claims that it started a "new export unit" after getting the same registered with STPI on 28/03/2000. The assessee has given the chronology of events in support of his contention. This is extracted herein below for ready reference. (1) 06.07.1995 Assessee company incorporated and started domestic unit engaged in local sale of various computer software. (2) F.Y. 1999-2000 : Assessee company started export unit for rendering software development services and for that purpose undertook various activities as under: 06.08.1999: Board resolution for registering the export oriented unit with STPI. 23.09.1999: Agreement with M/s Direct Credit Exchange Ltd., UK for manufacturing and export of software. 11.12.1999: Premises of ground floor of the same building taken on lease to shift existing domestic unit. 03.02.2000: Advance received from M/s Direct Credit Exchange Ltd. UK. This was first ever foreign exchange remittance in respect of export received by assessee. 07.02.2000: New EEFC account opened. 14.3.2000: Board resolution permitting authorized people to sign documents in connection with registration of export....
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.... filed a number of documents, which were not before the Assessing Officer or the Ld.CIT(A) or before the ITAT in the earlier round of proceedings. He submitted that the assessee was not guided properly by its counsel with regard to filing of evidences, to establish its claim for deduction u/s 10A of the Act. He submitted that the assessee had approached the present Counsel and it came to know that vital evidences that would go to prove the correctness of the claim of the assessee, were not placed before the authorities till date though they were part of government records. In view of the above advice, the assessee seeks permission under Rule 29 of ITAT Rules to file additional evidences in the form of paper book. Mr.Vijay Mehta pleaded that the documents placed in the paper book are crucial and necessary to decide the issue of eligibility of deduction u/s 10A of the Act. He further submitted that these evidences are contemporary in nature and that these documents were already on the file of the respective statutory authorities and hence are not new documents and that the same are beyond the scope of tampering. He prayed that the same should be admitted and that the issue should be ....
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.... of the Act will not apply to its case. In support of this contention he relied on the decision of the Hon'ble Bombay High Court in the case of Zycas Infotech P.Ltd. vs. CIT, 331 ITR 72. 4.3. The Ld.D.R. on the other hand strongly objected to the admission of additional evidences. He submitted that the evidences in question were not filed by the assessee, either before the AO or before the Ld.CIT(A), or before the ITAT for the A.Y. 2002-03, or before the AO or Ld.CIT(A) during the course of proceedings for the impugned A.Ys. It was submitted that no valid reason is given by the assessee for non submission of these documents before the authorities on earlier occasion. It was submitted that no reasonable cause whatsoever was given by the Counsel as to justify the non production of documents. Ld.D.R. relied on the order of the ITAT in the assessee's own case for the A.Y. 2002-03 and submitted that deduction u/s 10'A' of the Act cannot be granted to the assessee. He argued that there are no change in facts and circumstances of the case and the assessee is trying to distinguish this order of the ITAT by bringing in fresh documents. On the issue of applicability of S.10A(9) of the Act....
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....e the benefit claimed by the assessee u/s 10B should be allowed?" 5. The learned. Counsel for the revenue assailing the impugned order contends that it is well settled that the Income Tax Act as it stands amended on the first day of April of any financial year must apply to the assessment of that year. Any amendments in the Act which come into force after first day of April of a financial year would not apply to the assessment for that year, even if the assessment is actually made after the amendments come into force. In support of his contention, he relies on the judgment of the Apex Court In the case of KARIMTHARUVI TEA ESTATE LTD vs. . STATE OF KERALA reported in [1966J 060 ITR 0262. On the same analogy, though sub-section (9) .of Section 10 B was omitted with effect from 01.04.2004, on the day the beneficial interest was transferred and for subsequent period, till the said omission took place, the said omitted provision 'is' applicable -and he submits that the approach or' of the Tribunal is erroneous and requires to be set aside. 6. Per contra, the learned Counsel for the assessee relying on the judgment of the Constitution Bench of the Apex Court....
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....r Section l10B of the Act irrespective of the fact whether during the period to which they are entitled to the benefit, the ownership continues with the original assessee or it is transferred to another person. Benefit is to the undertaking and not to the person who is running the business. We do not see any merit in these appeals. The substantial question of law is answered in favour of the assessee and against the revenue. Accordingly, the appeals are dismissed." 6.2. Respectfully following the same, we uphold the contention of the assessee. This decision was not brought to the notice of the Bench of the ITAT when it was adjudicating the assessee's case for the A.Y. 2002-03 and hence the Bench had no occasion to consider the same. 6.3. Even otherwise the Hon'ble Bombay High Court in the case of Zycus Infotech Pvt.Ltd. reported in 331 ITR 72 (Bom) at paras 14 and 15 held as follows. "14. So far as second question is concerned, one has to keep in mind the settled principle of interpretation that retrospectivity cannot be lightly inferred unless it is clearly provided for in the statute. The first proviso to s.10A implies continuity. If the intention was to deprive th....
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....ent's view about conversion of domestic unit IS correct, the assesse has made domestic sale beyond permissible limit and violated STPI condition. This is not correct. ii) In the STPI application form the assesse has ticked the option of conversion of existing export unit to STP!. There was no export inF.Y. 1999-00. It is submitted that existing domestic unit was not converted to STPI unit. 93. Covering Letter of application filed with STPI Covering letter filed along with the application to demonstrate the total documents filed with the STPI application In addition to the application form. 94-99 Project report for setting up STPI unit It is evident from project report that the assesse wanted to set up a new export unit and is taking all steps to make its mark in the international market. The assesse has also got an export order from Direct Credit Exchange Ltd and had also received advance money from them. 100 Board Resolution dated 14.3.2000 Resolution passed by company authorizing certain people to sign documents In connection with registration of export unit. 101 Power of attorney dated 16.3.2000 Letter to STPI authorizing Mr.Haresh to sign....
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.... and proper to direct the A.O. to consider all these evidences placed before us in the set aside proceedings. 7.2. In any event we are of the considered opinion that the additional evidences filed by the company under Rule 29 of the ITAT Rules should be admitted in the interest of justice. These evidences go to the root of the matter and the assessee has demonstrated that it was because of not being properly guided by a Counsel that it did not file the documents earlier. In this case anyhow the issue of deduction u/s 10'A'is being sent back to the A.O. for verification. Hence we are of the opinion that on these facts the A.O. has to consider the claim in all its aspects afresh, without being constrained by the order of the ITAT for the A.Y. 2002-03. While doing so we rely on the decision of the Hon'ble Delhi High Court in the case of CIT vs. Text Hundred Industries Ltd. (2013) 351 ITR 57 wherein it is held as under. "13. The aforesaid case law clearly lays down a neat principle of law that discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudicatio....