2017 (3) TMI 684

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....8 declaring total income at Rs. 13,35,346/- after claiming deduction u/s 10A of the Act at Rs. 11,97,44,182/-. Case was selected for scrutiny assessment and notice u/s 143(2) of the Act dated 27.7.2011 was duly served on the assessee. Necessary details were furnished as required by the Assessing Officer. Ld. Assessing Officer following the precedence of previous assessment orders u/s 143(3) of the Act wherein assessee was denied the claim of deduction u/s 10A of the Act at Rs. 11,97,44,182/- as the matter was pending before Hon. Gujarat High Court. Apart from this, addition was also made u/s 14A of the Act at 1,54,799/-. The disallowance u/s 10A of the Act for Asst. Year 2009-10 is of Rs. 6,31,16,717/-. 3. Aggrieved, assessee went in appeal before ld. Commissioner of Income Tax(A) and partly succeeded as ld. Commissioner of Income Tax(A) allowed assessee's claim of deduction u/s 10A of the Act by following the judgment of Hon. Jurisdictional High Court in the case of Saurashtra Cement and Chemicals Industries Ltd.123 ITR 669 and ld. Commissioner of Income Tax(A) partly allowed the ground raised by assessee u/s 14A of the Act. 4. Aggrieved, Revenue is now in appeal before the Trib....

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....sessee's own case the Co-ordinate Bench has confirmed the ld. Commissioner of Income Tax(A)'s order allowing assessee's claim of deduction u/s 10B of the Act for Asst. Year 2003-04 to 2007-08. We further observe that ld. Commissioner of Income Tax(A) has allowed assessee's appeal elaborately discussing the facts and following the judgment of Hon. Jurisdictional High Court in the case of Saurashtra Cement & Chemicals Industries Ltd. (supra) by observing as follows :- 4.3 Decision: I have carefully considered the facts of the case, the assessment order and the written submission of the appellant. The appellant company is in the business of software development and information technology related services. It is a hundred percent export oriented unit registered in softwareTechnology Park approved by the Ministry of Industries. The Company started its business during financial year 2002 - 03 and started claiming deduction under section 10 B of the Act. It claimed the deduction under section 10 A up to assessment year 2007 - 08 since then. During the first assessment year i.e.2003 - 04 the deduction was disallowed as it was held by the AO that the ratio of old plant and machinery util....

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.... and 10B and there is considerable litigation in ITAT and High Court on the issue. Many conditions in section 10 A and 10B are overlapping. Honourable Bombay High Court in the case of the Prufhvi Brokers and Shareholders Private Limited 349 ITR 336 has held that the appellant authorities have power to consider claims not made in return of income provided the claims are of bona fide nature. All the information which has now been given by the appellant in the revised claim and the new report in form 56G was there on records earlier also. It is only to change of section., which has been made by the appellant. Therefore, the additional grounds of appeal filed by the appellant are admitted for consideration. The objections raised by the AO in the report are first taken up for examination. The AO has submitted that the claim of the appellant u/s 10 B should not be admitted as the appellant has not furnished form 56G with the return of income. In this connection it is noted that. In this connection it is noted that assessee made claim u/s 10A. The claim was disallowed by the AO on the ground that in earlier years the claim under section 10 B was disallowed. The appellant, therefore, mad....

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....he setup of the appellant company it is the same which claimed the deduction under section 10 B for the first time for A.Y 2002- 03. It has been held by honourable Madras High Court in the case of Nagesh Chundur vs. Commissioner of Income-tax, Circle -XV, Chennai reported in 39 taxman.com 190 that in order to claim deduction, * under section 10A, twin conditions are that an undertaking in hardware j technology park or software technology park must be in existence commencing its production on or after 1-4-1994 and it should not have been i formed by splitting up or reconstruction of an existing business. In the present j case the appellant is satisfying both the conditions and there is no reason why j it should not be allowed the deduction under section 10 A. The AO has relied on the judgement of honourable Delhi High Court in the case of Regency Creations. The judgement is not applicable to the present facts of the case as in that case the appellant had claimed .deduction under section 10 B. whereas it was entitled.lor deduction under section 10 A. The Honourable Court held that if the assessee was entitled for deduction in a particular section it cannot be allowed the deduction ....