TaxTMI 
TaxTMI 
2017 (6) TMI 640
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....47 and accordingly issued the notice u/s.148 on 18.03.2014 and completed the assessment u/s.143(3) r.w.s. 147 by an Order dated 23.03.2015 on total income of Rs. 3,11,69,970/-. In the re-assessment made u/s.147. The AO has withdrawn the deduction claimed u/s.10A of the Act. 3.1 Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and the Ld CIT(A) upheld the issue of notice u/s.148. Hence, the assessee is on appeal before this Tribunal. 4.0 During the appeal, the Ld.AR of the assessee argued that, in this case the assessment was completed u/s.143(3) and in original assessment proceedings, the assessee has furnished all the relevant details to the AO and after examination of all the details, the AO has allowed the deduction u/s.10A, hence the the AR contended that revisiting the claim made by the assessee with regard to the deduction claimed u/s.10A tantamount to difference of opinion and the AO is not permitted to resort to re-opening of assessment u/s.148 because it is a mere change of opinion. The Ld.AR relied on the following decisions: 1. 34 Capgemini India Pvt. Ltd. v. ACIT [2015] 232 taxmann.com 175 (Bombay) 2. 35 CIT v. Aravind remedies Ltd.....
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..... The auditor has certified that it was 10th year of claim and the assessee is eligible for deduction though the claim was made for 11th year from the date of commencement of production/manufacture of articles/things. The assessee relied on the decision of the Hon'ble Bombay High Court in the case of Capegemini India (P) Ltd. v. ACIT reported in 58 taxmann.com 175 (Bombay) and argued that re-opening of assessment on the ground that deduction u/s.10A was wrongly allowed would be a case of revisiting the claim which was impermissible. In the case law relied upon by the assessee a specific question regarding deduction was raised by the AO in the questionnaire and the assessment was completed after considering the reply of the assessee. Further the facts of the case in capegemini India was as follows: It filed its return of income for assessment year 2007 -08 and declared income of Rs. 2.76 crores. While filing return, assessee claimed deduction under section 10A with respect to profits derived from two units. The assessee pointed out that the deduction under section 10A was elaborated in Schedule 10A. The case of assessee was selected for scrutiny and the assessment was completed. F....
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....he relevant AY and there was a prima facie case of wrong deduction claimed by the assessee. This fact was not brought to the notice of the AO by the assessee at the time of original assessment proceedings u/s.143(3) and the AO also has not examined the eligibility of entitlement of deduct on u/s.10A. Therefore, we hold that the notice issued u/s.148 is valid and the order of the CIT(A) is upheld. The assessee's appeal on this ground is dismissed. 7.0 Ground No.4 is related to the disallowance of claim made by the assessee u/s.10A. The AO disallowed the claim of the assessee u/s.10A stating that the period of 10 years from the date of the commencement of manufacturing/production was completed by the AY 2007-08 and the assessee is not eligible for deduction for the A.Y 2009-10. The deduction was covered for the period from 1998-99 to 2007-08 and completed the period of 10 years and no deduction is permissible beyond the period of 10 years. Accordingly, the AO has withdrawn the incorrect/wrong claim made by the assessee. The Ld.CIT(A) confirmed the order of the AO holding that the assessee was entitled for deduction u/s.10A from the commencement of production/manufacture of articles....
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....0. As regards, the other case law cited by them viz. CIT Vs Foresee Information Systems (P) Ltd. 365 ITR 335 (Kar.), rather than advancing their case, it only goes to buttress the stand of the Revenue that the ten year period is to be reckoned from the date of commencement of the business and not from the date of registration in a STP. 11. Considering the above legal issues in favour of the revenue, as well as CBDT Circular No.1/2005 dated 06.01.2005, it is to be held that 10 years reckoned from Asst. Year 1998- 99 and therefore the assessee is not entitled to claim the deduction u/s.10A i.e. for the current year i.e. A.Y. 2009-10. Appearing for the assessee, the Ld.AR argued that the assessee had set up 100% EOU under the STPI scheme during the previous year relevant to the AY 2000-01 and as such the AY 2009-10 was 10th year of deduction and the assessee is eligible for deduction u/s.10A of the Act which rightly allowed in the regular assessment. The Ld.AR argued that the period for exemption should be reckoned from the AY 2000-01 but not form the A.Y 1998-99. Therefore, the Ld.AR contended that the AO has wrongly disallowed the deduction claimed by the assessee and hence the....
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....0A was not available, as the undertaking was not in a Software Technology Park. It is therefore, submitted that in the audit report filed under Section 10A, the Asst Years 2008-09 and 2009-10 are mentioned as 9th and 10th Year from the date of commencement of production of computer software in Software Technology Park. The year of production referred to in your letter is that of the assessee's business and not that of the undertaking in a "Software Technology Park". The error therefore, in the Audit Report is to be rectified and the assessee is rightly entitled and eligible for claiming its profits from its undertaking under Section 10A as exempt in respect of the Asst Years 2008-09 and 2009-10. From the above facts, it is clear that the company was incorporated and commenced production/manufacture of articles/things on 06.10.1997 and the Chartered Accountant in Form No.56F has rightly certified the date of commencement . The Ld.AR of the assessee did not furnish any evidence disputing the facts. Therefore, there was no dispute in the date of commencement of production/manufacture of articles/things on 06.10.1997. Now, the question is whether the assesse's claim for dect....
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....used for any purpose. Explanation.-The provisions of Explanation 1 and Explanation 2 to sub-section (2) of section 80-I shall apply for the purposes of clause (iii) of this sub-section as they apply for the purposes of clause (ii) of that sub-section. 68[(3) The profits and gains referred to in sub-section (1) shall not be included in the total income of the assessee in respect of any five consecutive assessment years, falling within a period of eight years beginning with the assessment year relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles or things, specified by the assessee at his option : Provided that nothing in this sub-section shall be construed to extend the aforesaid five assessment years to cover any period after the expiry of the said period of eight years.] As per the provisions of Sec.10A for the period from 1997-98 to 1999-2000, the assessee is not entitled for deduction u/s.10A since the assessee's activity is not covered by Sec.10A of the Act. However, as per Sec.10A(3) the eligible period for deduction u/s.10A was five consecutive AYs within a period of 8 years beginning with the AY, relevant to t....
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....uter software :] Provided also that no deduction under this section shall be allowed to any undertaking for the assessment year beginning on the 1st day of April, 2010 and subsequent years. (2) This section applies to any undertaking which fulfils all the following conditions, namely :- (i) it has begun or begins to manufacture or produce articles or things or computer software during the previous year relevant to the assessment year- (a) commencing on or after the 1st day of April, 1981, in any fr e trade zone; or (b) commencing on or after the 1st day of April, 1994, in any lectronic hardware technology park, or, as the case may be, software technology park; (c) commencing on or after the 1st day of April, 2001 in any special economic zone; (ii) it is not formed by the splitting up, or the reconstruction, of a business already in existence : Provided that this condition shall not apply in respect of any undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section; (ii....