TaxTMI 
TaxTMI 
2021 (2) TMI 1265
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....act that the assessee has flouted the basic prerequisite condition laid down for claiming due exemption u/s.10B of the I.T. Act regarding authority granting approval as a 100% export oriented undertaking. 2. The Ld.CIT(A) has passed the order without considering the decision of Hon'ble Apex Court in the case of Goetze(India), 2006 157 Taxmann 1(SC)/ 2006 284 ITR 323 (SC). 3. The appellant craves leave to add to, amend or alter the above grounds as may be deemed necessary. Relief claimed in appeal It is prayed that the order of the CIT(Appeals) be set aside and that of the Assessing Officer be restored. 3. Solitary issue raised by the Revenue is that the learned CIT (A) erred in deleting the disallowances of exemption by the AO under section 10B of the Act for Rs. 39,20,823/- without appreciating the judgment of Hon'ble supreme court in case of Goetze (India) [2006] 157 taxmann.com 1 (SC) 4. The fact in brief for adjudication is that the assessee is partnership firm engaged in business of information technology enabled service provider and also registered under STPI Gandhinagar. For the year under consideration the assessee claimed exemption under ....
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....ased to allow the claim of the assessee by observing that assessee's claim under section 10B of the Act was allowed in past. Further the assessee made alternate claim under section 10A of the Act by contending that it fulfills the conditions prescribed under both section i.e. 10A and 10B of the Act. But the AO remained silent on this issue. Thus in the circumstances where assessee fulfills the criteria of section 10A of the Act but inadvertently made claim under section 10B of the Act can't be prohibited from availing the benefit of section 10A of the Act as held by Ahmadabad tribunal in case of Tarun V shah in ITA No. 925/Ahd/2014 in this respect. 6.1 The learned CIT (A) further held that the case of the assessee are squarely covered by the judgment of the Ahmadabad ITAT in case of Quality BPO Services Pvt. Ltd. in ITA No. 120/Ahd/2012 where it was held that the approval by the STPI comes under the ministry of communication of information technology which is a competent authority to grant approval to avail benefit of section 10B of the Act being 100% EOU. 7. Being aggrieved by the order of the learned CIT (A) the Revenue is in appeal before us. 8. The learned DR b....
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....e it wanted to change the practice without any change in law or change in facts therein, the basis for the change in practice should have been mentioned either in the assessment order or atleast pointed out to the Tribunal when it passed the impugned order. None of this has happened. In fact, all have proceeded on the basis that there is no change in the principle which has been consistency applied for the earlier assessment years and also for the subsequent assessment years. Therefore, the view of the Tribunal in allowing the respondent's appeal on the principle of consistency cannot in the present facts be faulted with, as it is in accord with the Apex Court decision in Bharat Sanchar Nigam Ltd. v. Union of India [2006] 282 ITR 273. 11.1 Moving further we note that the ld. AR of the assessee has referred to order of this tribunal in case of Quality BPO Services Pvt. Ltd. in ITA No. 120/Ahd/2012 and contended that the assessee case is covered by this order wherein it was held that the letter of approval received from STPL is a proper approval, as required by the provisions of section 10B of the Act. The relevant finding of the tribunal is reproduced as under: 7. In....
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....that the assessee is entitled to claim of deduction u/s 10B of the Act." In view of the above and in the light of the above judgments, we safely hold that the assessee is eligible to claim deduction under section 10B of the Act by virtue of being 100 % EOU approved by the STPI. 11.3 Without prejudice to the above, we also note that the assessee has also made alternate claim under section 10A of the Act before authorities below. The assessee contented that condition prescribed under section 10A and 10B of the Act are more or less same and it fulfills all the conditions specified under section 10A of the Act. Thus it should be allowed exemption under section 10A of the Act if not allowed under section 10B of the Act. As such we note that the AO was allowed opportunity vide remand report to verify the fulfillment of the condition specified under section 10A of the Act. But he restrained himself from making any comment as the same was already verified by him during assessment proceeding. From, this we safely assume that the all condition has been fully met by the assessee. Now the question arise that can the assessee be allowed exemption under section 10A alternatively where it h....
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....closed material fact. Further it was due diligence of the AO that he found on subsequent verification that the assessee is not possessing necessary approval to claim exemption under section 10B of the Act. Thus by virtue explanation 2 to section 147 of the Act the AO is empowered to reopen the assessment. 14. Aggrieved assessee preferred an appeal to the learned CIT (A) who confirmed the validity assessment framed under section 147 of the Act by observing as under: The present case is more similar to the judgment in the case of Anusandhan Investments Ltd. v. DOT [2006] 287 1TR 482 (Bom.). The issue there was the challenge to the notice under section 148 of the Act. Admittedly, the issue regarding the capital gains arising from the sale of shares pursuant to the agreement dated 3-1-1992, was neither raised nor discussed in the assessment order for the assessment year 1992-93. On those facts, the court refused to intervene in the extraordinary jurisdiction. Reliance is also placed the case of CIT Vs P.V.S. Beedies (P.) Ltd. [19991 237 ITR 13 (SC). Notice for reopening of assessment was based on the report of the internal audit party. The court held that it would be permissible.....
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....43(3) of the Act allowed the claim under section 10B vide order dated 01-12-2012. The only reason to reopen is stated to that the AO subsequently found that the assessee does not possess valid approval as provided under section 10B of the Act for claiming deduction. For this purpose the learned AR drew attention on page 34 of the paper book where reasons recorded by the AO for initiating the proceedings under section 147 of the Act were placed. 16.2 The learned AR further contended that the opening in the present case has been initiated beyond the period of 4 year from the end of relevant assessment year and there was no finding of the AO in the reasons recorded that the assessee has failed to disclose material facts truly and materially in the income tax return which was mandatory as per proviso 1 to section 147 of Act and as held by the Hon'ble Gujarat High Court in the case of Gujarat Lease Financing Ltd vs. DCIT reported in 36 taxmann.com 359. 17. On the other hand the learned DR vehemently supported the order of the authorities below. 18. We have heard the rival contentions of both the parties and perused the materials available on record. The 1st issue that arise....
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....ssment and the assessment is completed initially, without taking into consideration the alleged information. Such information, can be called as new information, which requires fresh investigation/observation. 18.5 In the light of the above discussion, we proceed to adjudicate the issue on hand. For this purpose we refer to the reasons recorded by the AO for initiating the proceedings under Section 147/148 of the Act which are reproduced herein below: " On verification of the case records for A.Y. 2009-10, it is noticed that the assessee has claimed deduction of Rs. 39,20,823/- under section 10B of the Act. The assessee was granted approval as a 100 per cent expert oriented Unit by the Director, Software Technology Parks of India (STPI), Gandhinagar for computer software and IT enabled services on 01-03-2000. STPI was a society formed under the Software Technology Park Schemes (STP) for granting permission to units engaged in computer software and enabled services and registered under the Societies Registration Act,1860. STPI was administered by the Department of Information Technology, Ministry of communication and Information Technology, Govt. of India. Explanation 2(i....