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2010 (12) TMI 724 - AT - Income TaxDeduction u/s 10B - Acquisition and conversion of partnership firm into company - whether business can be assigned retrospectively by one firm to another firm for the purpose of claiming deduction under section 10B. - transfer of business or merger - Held that - The first objection raised by the Assessing Officer is that the sale proceeds were not received by the assessee as they were received by M/s. Anjali Exports in this regard we would like to mention that by a memorandum of understanding dated January 15 2007 the business of M/s. Anjali Exports have been taken over retrospectively with effect from April 1 2006. Whatever the sales made by M/s. Anjali Exports the payment against those sales has to come in the name of M/s. Anjali Exports. The bank account in the name of M/s. Anjali Exports is not closed and the same is deposited in the bank account of M/s. Anjali Exports which has been taken over by the assessee. Therefore whatever the sale proceeds are received that has to be treated as received by the assessee for the reason that on account of slump sales entire business including turnover have been taken over by the assessee-firm with effect from April 1 2006. - technicality should not come into substantial justice of the assessee which otherwise is eligible for deduction under section 10B. - decided in favor of assessee.
Issues Involved:
1. Retrospective assignment of business for claiming deduction under section 10B. 2. Allowability of deduction under section 10B in case of acquisition by a firm. 3. Opportunity of hearing to the Assessing Officer before the Commissioner of Income-tax (Appeals) decided the case. Issue-wise Detailed Analysis: 1. Retrospective Assignment of Business for Claiming Deduction under Section 10B: The Department challenged the Commissioner of Income-tax (Appeals) decision that allowed the retrospective assignment of business for claiming deduction under section 10B. The Tribunal examined the facts and found that the appellant-firm acquired the export-oriented undertaking (EOU) of M/s. Anjali Exports on a slump sale basis, effective from April 1, 2006. The Tribunal noted that the firm had maintained separate books of accounts and audited them accordingly. The Commissioner of Income-tax (Appeals) concluded that the acquisition did not constitute a reconstruction of the business, aligning with the precedent set in Tech Books Electronics Services P. Ltd. v. Addl. CIT [2006] 100 ITD 125 (Delhi). The Tribunal upheld this decision, emphasizing that the deduction under section 10B is for the undertaking and not the assessee, thus supporting the retrospective assignment. 2. Allowability of Deduction under Section 10B in Case of Acquisition by a Firm: The Tribunal addressed the Department's contention that deduction under section 10B is only allowable in the case of mergers involving companies, not firms. The Tribunal referred to the legislative amendments and explanatory memorandum which clarified that the deduction is attached to the undertaking, not the owner. The Tribunal noted that the provisions of sub-sections (9) and (9A) of section 10B, which previously restricted such deductions, were omitted with effect from April 1, 2004, to eliminate hurdles in mergers and acquisitions. The Tribunal found that both the appellant-firm and M/s. Anjali Exports were eligible for deduction under section 10B, and the acquisition did not alter this eligibility. Therefore, the Tribunal upheld the Commissioner of Income-tax (Appeals) decision allowing the deduction. 3. Opportunity of Hearing to the Assessing Officer Before the Commissioner of Income-tax (Appeals) Decided the Case: The Department argued that the Commissioner of Income-tax (Appeals) decided the appeal without giving proper opportunity to the Assessing Officer. The Tribunal found that the Commissioner of Income-tax (Appeals) had preponed the hearing date upon the assessee's request due to imminent coercive recovery measures by the Assessing Officer. The Tribunal noted that the Assessing Officer was informed about the preponed hearing and had the opportunity to appear or request additional time, which he did not utilize. The Tribunal emphasized that remanding the case would be futile as the Commissioner of Income-tax (Appeals) had already discussed the issue in detail, addressing all objections raised by the Assessing Officer. The Tribunal cited various judicial precedents supporting the decision to avoid unnecessary remands when all facts are already on record. Consequently, the Tribunal rejected the Department's request to remand the case and upheld the Commissioner of Income-tax (Appeals) decision. Conclusion: The Tribunal dismissed the Department's appeal, affirming the Commissioner of Income-tax (Appeals) decision to allow the deduction under section 10B for the appellant-firm, including the profits earned by M/s. Anjali Exports. The Tribunal found that the acquisition did not constitute a reconstruction of the business and that the deduction is attached to the undertaking, not the owner. The Tribunal also concluded that the Assessing Officer had been given a fair opportunity to present his case before the Commissioner of Income-tax (Appeals) decided the appeal.
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