TaxTMI 
TaxTMI 
2018 (2) TMI 505
X X X X Extracts X X X X
X X X X Extracts X X X X
....IT(A) has erred in allowing the alternate claim of deduction u/s. 10A of the I.T. Act of Rs. 62,25,691/- ignoring the intention of the legislature to create different sections i.e. 10A and 10B, for claim of different deductions and further ignoring the fact that the condition for claim of deduction under these two sections are distinguishable and different. 3. The appellant craves the right to add, alter or amend any ground of appeal. 4. The grounds raised in the Revenue's Appeal being ITA No. 6411/Del/2015 (AY 2010-11) read as under:- 1. The Ld. CIT(A) has erred in deleting the addition of Rs. 36,90,731/- made by the AO on account of disallowance of deduction claimed u/s. 10B of the I.T. Act. 2. The ld. CIT(A) has erred in allowing the alternate claim of deduction u/s. 10A of the I.T. Act of Rs. 36,90,731/- ignoring the intention of the legislature to create different sections i.e. 10A and 10B, for claim of different deductions and further ignoring the fact that the condition for claim of deduction under these two sections are distinguishable and different. 3. The appellant craves the right to add, alter or amend any ground of appeal. 5. A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....epresentative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeal exparte qua assessee, after hearing the Ld. DR and perusing the records. 7. We have Ld. DR and perused records, especially the assessment order as well as impugned order. For the sake of convenience, we are reproducing the relevant findings of the AO as well as Ld. CIT(A) as under:- AO's finding "...On considering the judgments of the Hon'ble Delhi High Court dated 17.9.2012 and 04.01.2013 also, it is found that the modified decision has been referred to the Hon'ble ITAT to ascertain the claim of the assessee that whether the assessee is entitled to the benefit of Section 10A as claimed. Hence, modification not means that the deduction u/s. 10B of the I.T. Act, 1961 be allowed. In this case, the assessee has not given any submission or documents or any revised computation of income claiming the deductio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of the provisions of this section as it stood immediately before its substitution by the Finance Act, 2000, the undertaking shall be entitled to deduction referred to in this sub-section only for the unexpired period of the aforesaid ten consecutive assessment years : Provided further that where an undertaking initially located in any free trade zone or export processing zone is subsequently located in a special economic zone by reason of conversion of such free trade zone or export processing zone into a special economic zone, the period of ten consecutive assessment years referred to in this sub-section shall be reckoned from the assessment year relevant to the previous year in which the undertaking began to manufacture or produce such articles or things or computer software in such free trade zone or export processing zone : Provided also that for the assessment year beginning on the 1st day of April, 2003, the deduction under this sub-section shall be ninety per cent of the profits and gains derived by an undertaking from the export of such articles or things or computer software : Provided also that no deduction under this section shall be allo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he particulars, as may be prescribed in this behalf, have been furnished by the assessee in respect of new machinery or plant along with the return of income for the assessment year relevant to the previous year in which such plant or machinery was first put to use. (1C) Where any amount credited to the Special Economic Zone Re-investment Allowance Reserve Account under clause (ii) of sub-section (1A),- (a) has been utilised for any purpose other than those referred to in sub-section (1B), the amount so utilised; or (b) has not been utilised before the expiry of the period specified in sub-clause (i) of clause (a) of sub-section (1B), the amount not so utilised, shall be deemed to be the profits,- (i) in a case referred to in clause (a), in the year in which the amount was so utilised; or (ii) in a case referred to in clause (b), in the year immediately following the period of three years specified in sub-clause (i) of clause (a) of subsection (1B), and shall be charged to tax accordingly. (2) This section applies to any undertaking which fulfils all the following conditions, namely :- (i) it has begun or begins to manu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the undertaking, the same proportion as the export turnover in respect of such articles or things or computer software bears to the total turnover of the business carried on by the undertaking. (5) The deduction under this section shall not be admissible for any assessment year beginning on or after the 1st day of April, 2001, unless the assessee furnishes in the prescribed form6, alongwith the return of income, the report of an accountant, as defined in the Explanation below sub-section (2) of section 288, certifying that the deduction has been correctly claimed in accordance with the provisions of this section. (6) Notwithstanding anything contained in any other provision of this Act, in computing the total income of the assessee of the previous year relevant to the assessment year immediately succeeding the last of the relevant assessment years, or of any previous year, relevant to any subsequent assessment year,- (i) section 32, section 32A, section 33, section 35 and clause (ix) of sub-section (1) of section 36 shall apply as if every allowance or deduction referred to therein and relating to or allowable for any of the relevant assessment years ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rged company if the amalgamation or demerger had not taken place. (7B) The provisions of this section shall not apply to any undertaking, being a Unit referred to in clause (zc) of section 2 of the Special Economic Zones Act, 2005, which has begun or begins to manufacture or produce articles or things or computer software during the previous year relevant to the assessment year commencing on or after the 1st day of April, 2006 in any Special Economic Zone. (8) Notwithstanding anything contained in the foregoing provisions of this section, where the assessee, before the due date for furnishing the return of income under sub-section (1) of section 139, furnishes to the Assessing Officer a declaration in writing that the provisions of this section may not be made applicable to him, the provisions of this section shall not apply to him for any of the relevant assessment years. (9) [Omitted by the Finance Act, 2003, w.e.f. 1-4- 2004.] (9A) [Omitted by the Finance Act, 2003, w.e.f. 1-4- 2004.] Explanation 1.- [Omitted by the Finance Act, 2003, w.e.f. 1-4-2004.] Explanation 2.-For the purposes of this section,- (i) "computer s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... software (including services for development of software) outside India shall be deemed to be the profits and gains derived from the export of computer software outside India. Explanation 4.-For the purposes of this section, "manufacture or produce" shall include the cutting and polishing of precious and semi-precious stones." 7.2 After perusing the aforesaid findings as well as the provisions of Section 10A of the Act, we find that Ld. CIT(A) in his impugned order has wrongly allowed the alternate claim of deduction u/s. 10A of the I.T. Act of Rs. 62,25,691/- by totally ignoring the intention of the legislature to create different sections i.e. 10A and 10B, for claim of different deductions and further ignoring the fact that the conditions for claim of deduction under these two sections are distinguishable. We further note that Ld. CIT(A)'s action in allowing the aforesaid claim is without appreciating the totality of facts and merit of the case and without giving proper justification for the fulfillment of the conditions as stipulated u/s. 10A of the Act. We also note that Ld. CIT(A) has obtained the Remand Report from the AO and the AO objected to the same, but L....