9911796707
TMI Blog2008 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ot. In this case the learned CIT(A) has overlooked this finding of the AO in the assessment order. (ii) No new undertaking The AO, on the basis of evidence and facts collected during the course of survey and assessment proceedings and also after recording statements of the responsible technical employees, had held that the assessee company was not a new undertaking as it was incorporated in the year 1988. The provisions of s. 10B of the Act came into force from asst. yr. 1991. No new undertaking was established in asst. yr. 1996-97 and it was only a conversion of existing unit into 100 per cent export oriented unit (EOU). The learned CIT(A) has erred in not adjudicating this issue at all. The learned CIT(A) has erred in overlooking sub-s. (2) of s. 10B of the Act which specifically provides for the exclusion of the said benefit in certain conditions. The said sub-section specifically states that splitting up or reconstruction of business should not have formed the said undertaking already in existence. As is evident, the assessee company was already in existence since years. This would tantamount to reconstruction of business or moulding of the business for illegally getting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees of the assessee company have specifically stated that there is no manufacturing activity. The assessee company is mainly providing qualified personnel as per the requirements of overseas parties. It is not concerned whether or not these personnel are used for any software development work. Even the assessee does not have any control on them. This aspect is supported by the clauses of the work agreement. The learned CIT(A) has completely overlooked that 'computer software' as defined under the said section means any computer program recorded on any disc, tape, perforated media or other information storage device. This does not include any services of qualified personnel given by the assessee. The learned CIT(A) has erred in applying the definition of Copyright Act, when the same is available under the IT Act. In Tata Consultancy Services vs. State of Andhra Pradesh (2004) 192 CTR (SC) 257 : 122 STC. the Hon'ble Supreme Court has held that development of customized software programs for a computer do not constitute computer and data processing services because the true object of software development contract is not to obtain the services of the consultant, but to obtain sof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the strength of statement of employees, recorded during the course of survey/assessment proceedings and perusal of few work agreements, the AO came to the conclusion that no software product was developed and the assessee was providing only engineering consultancy services. The copies of work agreements between the taxpayer and the buyer of services, revealed that as per requirements of the buyer, the technical persons were trained and services were provided. The AO, inter alia, recorded the statements of Shri Pratul Krishnakant Shroff, chairman and managing director of the company (CMD), Shri Pramukhbhai Tribhovandas Patel, chief accountant, Shri Dipakbhai Hasmukhbhai Kamdar, software project manager, Shri Sudhirbhai Bhimbhai Naik, vice president and head human resources and Shri Upendrabhai Ranchodbhai Patel, head of embedded systems division. Inter alia, an affidavit was filed on behalf of the taxpayer, averring that the company is engaged in the software development and export of software. Besides, affidavits of Shri Upendra Patel, head of embedded system division and Shri Dipak Kamdar, software project manager were also filed. In reply to various questions, Shri Pratul Shroff, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n third division work of quality assurance and testing is carried out. This is correct as per your knowledge. Please explain if any other work is carried out in your company; A.14 The work of company is carried out in above 3 divisions i.e., correct. No manufacturing is done in any of the 3 divisions mentioned above." In the light of reply to question Nos. 13 and 14, Shri Shroff submitted that the taxpayer is testing programs developed by clients for products quality and workability. It was specifically admitted that this was pure consultancy. In the light of the statement of Shri Shroff and other employees, the AO concluded that no manufacturing was done in any of the three divisions of the taxpayer company nor the taxpayer was developing any of its own product except providing consultancy services. 2.1 The AO further mentioned that the taxpayer did not obtain permission to manufacture from the excise authorities. Only permission granted vide letter dt. 19th Dec., 1995 was in respect of bonded warehouse only. While mentioning details of turnover in three divisions viz. - Chip designing and verification-Rs. 3.95 crores; - Embedded system division-Rs. 0.07 crores; and - Qualit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on behalf of the taxpayer submitted before the learned CIT(A) that main objects of the company in the memorandum of association are in conformity with the nature of business carried on by it. In respect of relevance of objects vis-a-vis actual activities undertaken, reliance was placed on the following decisions: (i) Lakshminarayan Ram Gopal & Son Ltd. vs. The Government of Hyderabad (1954) 25 ITR 449 (SC); pp. 460 and 461 Justice Rowlatt followed the above view of Lord Sterndale, MR., in IRC vs. Birmingham Theatre Royal Estate Co. Ltd. and held that when you are considering whether a certain form of enterprise is carrying on business or not, it is material to took and see whether it is a company that is doing it. The objects of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business. (b) Bengal & Assam Investors Ltd. vs. CIT (1966) 59 ITR 547 (SC) in which at p. 554 it is held thus: "Bhagwati, J. observed in Lakshminarayan Ram Gopal & Son Ltd. vs. The Government of Hyderabad that 'when a company is incorporated it may not necessarily come into ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht since asst. yr. 1995-96, no new machines have been purchased as mentioned at p. 15 of the assessment order. The managing director of the company and employees of the company stated that no software product was developed as evident from pp. 2 and 3 of the assessment order. The learned Departmental Representative further invited our attention to p. 2 of Annex. A of the assessment order and submitted that the taxpayer has no authority to undertake manufacturing. 3.4 On the other hand learned Authorised Representative on behalf of the taxpayer, while inviting our attention to p. 10 of the assessment order submitted that objects provide for writing programs for chips, repairing thereof and rewriting the program, forming part of software development. This is nothing, but manufacturing of software. Besides, what is to be looked into is what the taxpayer actually did and not the object clause. In this connection, he invited our attention to the decisions of the Hon'ble Supreme Court in the case of Oriental Investment Co. Ltd. vs. CIT (1957) 32 ITR 664 (SC) and Bengal & Assam Investors Ltd. vs. CIT. 3.5 We have heard rival contentions on this aspect. The taxpayer company was incorporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r chemical, power, computer, instrumentation etc. By virtue of these objects, taxpayer claims to have undertaken manufacture or production of software programs for the computer. Now how far objects are relevant in deciding the actual activities undertaken? Here we may refer to the decisions relied upon in this connection. Hon'ble Supreme Court in the case of Oriental Investment Co. Ltd. vs. CIT observed. "In the instant case the Tribunal in its appellate order has set out the amount of profits made by the assessee company in the years of assessment 1943-44 to 1948-49. It has also mentioned the inconsistent positions taken up by the assessee in first claiming to be a dealer and then to be an investor which according to the Tribunal was due to the fact that it was incurring losses in the earlier years and had begun making profits when the claim of being an investor was put forward. But the two basic facts on which the Tribunal has based its findings are: (1) the objects set out in the memorandum of association of the assessee company; (2) the previous assertion by the assessee company that it was a dealer in investments and not merely an investor. Counsel for the assessee relies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that if an individual person invests in shares for the purpose of earning dividend he is not carrying on a business. The only way he can come under s. 10 is by converting the shares into stock-in-trade, i.e., by carrying on the business of dealing in stocks and shares as did the assessee in CIT vs. Bai Shirinbai K. Kooka (1962) 46 ITR 86 (SC). Mr. Desai laid a great deal of stress on the argument that the very fact that a company is incorporated to carry on investment shows that the company is carrying on business. We are unable to agree with this contention. Bhagwati, J. observed in Lakshminarayan Ram Gopal & Son Ltd. vs. The Government of Hyderabad (1954) 25 ITR 449 (SC) that 'when a company is incorporated it may not necessarily come into existence for the purpose of carrying on a business'. He further observed that 'the objects of an incorporated company as laid down in the memorandum of association are certainly not conclusive of the question whether the activities of the company amount to carrying on of business'." 3.5.2 In the light of aforesaid decisions, it is apparent that the objects of an incorporated company alone are not conclusive but of course are relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to explain the nature of business in view of the statements of various persons recorded by him during the course of survey proceedings. The assessee, vide its various submissions from time-to-time including its letter dt. 19th Sept., 2002 has explained the nature of business carried on by it which submissions are summarized as under: The 100 per cent export oriented undertaking (EOU) of the assessee, registered with STPI, Gandhinagar is having three divisions: (1) Chip design and verification; (2) Embedded system design; and (3) Application software development and testing. The assessee has elaborated the nature of work carried out under each of the above divisions. Chip design and verification division: As semiconductor industry keeps putting more transistors on a single chip, complexity of a semiconductor chip keeps doubling every 18 months. EOU is involved in developing test programs that would automate the function of verifying the functioning of such complete designs involving millions of transistors on a single chip. That chip verification as a process is not a manual job as may be viewed by an outsider. It requires development of highly sophisticated test progra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons recorded during the course of survey proceedings should have been considered in light of the definition of the term "computer software" as given in Expln. 2 below s. 10B and read together with s. 10BB and various circulars of CBDT. (ii) The learned AO has relied on the statement of Shri Dipak Kamdar who has joined the appellant undertaking in April, 2001 i.e., after the end of the previous year relevant to the asst. yr. 2001-02 and in the circumstances his statement cannot be relied upon in respect of the facts of the business prevailing prior to the period of his joining the appellant undertaking. (iii) On 19th Sept., 2002 i.e., the next day of the survey proceedings, Shri Pratul K. Shroff, CMD of the appellant personally attended before the AO and filed a letter dt. 19th Sept., 2002 and clarified the technical aspects about the business of the appellant in respect of which the IT Department officials had questioned the managing director and the other employees during the survey proceedings on 18th Sept., 2002, which the learned AO has wrongly considered as 'retraction'. These clarifications vide letter dt. 19th Sept., 2002 were given since it was felt by the managing di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er s. 10B. The assessee has filed a detailed reply to the said notice vide its reply dt. 11th Nov., 2002 and met with each of the objections raised by the learned AO vide the said notice dt. 10th Oct., 2002. (viii) The AO had required the appellant to explain certain issues concerning the statements of the managing director and the employees recorded on 18th Sept., 2002 during the survey proceedings. The appellant had explained and made submissions of such issues raised by the learned AO from time to time including vide the letter dt. 19th Sept., 2002 as well as the affidavits of the managing director and the employees namely Shri Dipak Kamdar and Shri Upendra Patel, dt. 9th Nov., 2002. (ix) After reaching to the conclusion that the appellant is engaged in software business at pp. 9, 10, 14 and 21 of assessment order the AO has erred in denial of the claim under s. 10B by wrongly concluding that the nature of business of the assessee is such that it does not fit in the parameters of qualifying business prescribed in s. 10B. 4.2 In the light of aforesaid submissions, learned CIT(A) concluded with regard to nature of activities as under: "8. In my opinion, the statements given at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by the appellant, chip designing is a highly capital intensive and requires large scale of production. The object required to be fulfille9 by a chip are conceptualized by the big clients and a part of chip design, for the reasons of secrecy, is assigned to one client like appellant. The appellant with active interaction with the client carries out the testing and suggests the improvement in the module. The group leader, an expert employee of the company, is deputed at the client's place that in turn interacts with the support group unit of the company in India. The development is thus a dynamic process. It is also explained that for testing various functions required to be performed by the module are tested with the help of tools which are computer program bought or test program written by the expert team of the appellant. The main client continuously analyses the performance of various modules of the chip received from various consultants and suggest the consultants further improvement or requirement. This in turn is further dealt with by the main co-ordinator of the client. To me such activity of the appellant appears to be highly sophisticated and advanced consultancy in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tools which are software programs purchased by the appellant. Reply to query 7 reproduced on p. 5 of the assessment order clarifies the position as under: 'We also develop application software which assist quality assurance and testing in my mind all of these were part of quality assurance and testing consultancy when I asked question Nos. 33 and 34.' 8.3 It is clarified that the embedded system design activity carried out by the appellant during the year is covered by the Expln. 2 to s. 10B defining the computer software." 4.3 In the light of various activities undertaken by the taxpayer, learned Authorised Representative further explained before the learned CIT(A), the provisions of s. 10B and the definition of computer software as is interpreted by judicial authorities and the notification issued by the Board with regard to the product or service covered for the purpose of ss. 10A, 10B and 80HHE. In this connection attention was also invited to the decision in the case of Asstt. CIT vs. Amadeus India (P) Ltd. 4.4 In the light of aforesaid submissions, learned CIT(A) further held: "8.5 (i) In my view, on the basis of the evidence available and on the basis of the meaning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -02 whereby the Government extended the scope of definition of 'computer software' to include certain other services related to the computer industry. The learned AO has held that the assessee is carrying on the business of providing services as notified by the Board both under s. 10B as well as under s. 80HHE. However, the AO has not allowed the deduction under s. 10B. In view of his other objections had allowed the deduction under s. 80HHE on the basis of the above notification. (iii) On one hand he allows the deduction under s. 80HHE and on the other hand he withdraws the deduction under s. 10B on the ground that the nature of work was not software development. This is indeed contradiction in itself. The services which are covered for the purpose of s. 80HHE are also covered for the purpose of entitling the EOU for deduction under s. 10B. Even otherwise, in my view the EOU is carrying on the business of the nature covered by the definition of 'computer software' as was existing prior to the addition of 'notified services' in s. 10B/80HHE. Therefore, in view of the finding of the AO itself the deduction under s. 10B cannot be denied on the basis of nature of activities carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is done in the name of the appellant and the payment is also received by the appellant. As he was asked to explain the terms with reference to one concrete contract, the Authorised Representative explained the system with reference to the engineering services agreement entered with VxTel Inc. USA which was in chip designing and was taken over by the 'Intel' subsequently. It is submitted that the employees of the company are required to work in design and verification of ASIC of verification. As the VxTel is engaged in advanced and sophisticated chip designing, the appellant undertakes job of verification of the design of chip which requires processing and modification in the software made available to it by the VxTel. During verification, if any bug is found, the appellant returns the computer files for modification as per suggestions. Such dynamic interaction continues till all bugs are removed for which the appellant has to modify and write software programs. It is stated that as the job requires great amount of secrecy, job is mostly performed 'on site'. He submitted details of salary and other expenditure on employee deputed to VxTel. The stay expenditure was Rs. 46.41 lacs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs which fulfil all the following conditions, namely: "(2) This section applies to any undertaking which fulfils all the following conditions, namely: (i) it manufactures or produces any articles or things or computer software; (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 s. 33B, in the circumstances and within the period specified in that section; (iii) it is not formed by the transfer to a new business of machinery or plant previously used for any purpose. Explanation: The provisions of Expln. 1 and Expln. 2 to sub-s. (2) of s. 80-I shall apply for the purposes of cl. (iii) of this sub-section as they apply for the purposes of cl. (ii) of that sub-section." 6.1 In the case under consideration, it has to be examined as to whether or not activities undertaken by the taxpayer fall within 'manufacture or production of computer software'. Explanation 2 to s. 10B defines computer software as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of s. 10BB of the Act, stipulate the profits and gains derived by an undertaking from the production of computer programs or processing or management of electronic data, to be eligible for deduction under s. 10B of the Act, we are inclined to accept the findings of learned CIT(A), who after analyzing the details of activities of the taxpayer concluded that taxpayer is entitled to deduction under s. 10B of the Act. As explained before the learned CIT(A), unit is involved in developing test programs that would automate the function of verifying the functioning of complete designs involving millions of transistors on a single chip. That chip verification as a process is not a manual job as may be viewed by an outsider. It requires development of highly sophisticated test programs in very special high level languages. Further unit is also involved in software development and manufacturing of such programs from a scratch. Apparently, these are very complex programs. Similarly, the complete system, that incorporates microprocessor hardware and software; but does not look like a computer is stated to be an 'embedded system'. Telephone exchanges as well as phone instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in providing notified services of engineering and design and data processing." 6.6 As regards manufacture or production of computer programs, the Tribunal, Ahmedabad Bench in the case of ITO vs. Mastek Ltd. in ITA Nos. 1530/Ahd/2000 and 1867 and 368/Ahd/2001, dt. 7th Aug., 2007 held that the receipts of training, software consultancy, maintenance, enhancement of software and reimbursement of expenses are nothing but receipts from export of software. Even the software developed at client site with the supply of manpower to overseas clients was held to be entitled to deduction under s. 10A of the Act in the case of Asstt. CIT vs. S&S Consultants (P) Ltd. in ITA No. 6508/Mum/1997, dt. 21st Dec., 2001 while in the case of Sovika Infotek Ltd. vs. ITO. training activity of the assessee intrinsically connected with software development, sale, maintenance, etc. was held to be entitled to deduction under s. 10B of the Act. 6.7 In this connection Circular No. 694, dt. 23rd Nov., 1994 of the CBDT clarifies as under: "Development of programs on site 5. Since computer programs are not physical goods but are developed as a result of an intellectual analysis of the systems and methods follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 80HHE of the Act, has not been explained. 6.10 Another argument of the Revenue is that learned CIT(A) erred in applying the definition of computer software under the Copyright Act and not under the IT Act. We find from the order of learned CIT(A) that while referring to decision of the Tribunal in the case of Asstt. CIT vs. Amadeus India (P) Ltd., it was observed that computer program (not computer software) is not defined in the Act. The relevant portion of the said decision reads as under: "23. The Revenue's case is that whatever the assessee records on disc, tape, perforated media or other information storage device is not a 'computer program'. Similarly what is transmitted from India to a place outside India by any means was not a 'computer program' but only data which could make a program. But the claim of the assessee is contrary to what is stated by the Revenue. We find that the word 'computer program' has not been defined in the IT Act. However, the same has been defined in Copyright Act, 1957 as amended in 1994. As per this definition a computer program means 'a set of instructions expressed in words, codes, scheme or any other form including a machine readable mediu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis and control and data management emerged in international trade in which India could grab a significant share in exports. These activities are covered by the definition of 'computer program' as given in Copyright Act. Accordingly, CBEC on the recommendations of Department of Electronics issued further clarifications that export benefits will be available to EOU/STP units who export out of India all software developed, data entry and conversion done, data processed, data analysis and controlled or date management done. The CBEC substituted the words 'development of software' with the words 'development of software, data entry and conversion, data analysis and control or data management' vide Notification No. 89 of 1996 Customs dt. 19th Nov., 1996. The said broad banding of scope of software activities provided desired momentum in software exports. The CBEC has further clarified "computer software-scope of exemption" vide its Notification F. No. 341/20/97-TRU, dt. 10th Feb., 1998 (Circular No. 7 of 1998-Cus.). Even RBI has also clarified that such exports or services in non-physical form could be done on SOFTEX form and that the designated officer of the Department of Electronics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to this sensitive, strategic and dominant industry which fetches crores of foreign exchange for the country. There is judicial authority for the propositions that in fiscal statutes, unless the context otherwise warrants, the same expression occurring in different enactments where the colour, content and context of such statutes is the same or similar should be assigned the same meaning and that different statutes in pari materia, though made at different times or even expired and not referring to each other shall be taken and construed together as one system and explanatory to each other. There is no conceivable reason why the Government or legislature could or should have intended different amplitudes of expressions common to a whole batch of legislations forming part of an integrated policy in relation to the same sets of activities in an industry." Learned Departmental Representative could not throw any light as to the definition of 'computer program' in the Act or what is wrong if definition given in another enactment is considered, especially when computer program is not defined in the Act. 6.11 The decision in the case of Tata Consultancy Services vs. State of Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development, then what else these highly skilled personnel were doing overseas and what for the clients paid the taxpayer. 6.13 As regards reliance on decisions in the case of CIT vs. Sesa Goa Ltd., CIT vs. Superstar Music, CIT vs. Giza Impex (P) Ltd. and CIT vs. Oracle Software India Ltd. by the learned Authorised Representative, in our view these are not relevant to the context of activities undertaken by the taxpayer for manufacture and production of computer software. In the case of Sesa Goa Ltd., question was as to whether extraction and processing of iron ore amounts to "production" within the meaning of the word in s. 32A(2)(b)(iii) of the Act and, consequently, the assessee is entitled to the benefit of s. 32A(1) of the Act. The question whether the High Court was correct in holding that the activity did not amount to "manufacture" was left open. Similarly in the case of Superstar Music, question for consideration was as to whether the export of music software can be equated with export of goods for the purpose of s. 80HHC? In Giza Impex (P) Ltd., issue before Hon'ble Madras High Court was allowability of deduction under s. 80HHC of the Act in respect of the transfer/expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production and was in operation before registration. Besides the AO also found that though the taxpayer was having status of 100 per cent EOU, he had made local sales of Rs. 4,73,290 without taking prior approval from STPI. He also pointed out the violation of the provisions of the Customs Act in December, 2000, detected during the search by the central excise and customs authorities on 11th Dec., 2001, when capital goods were found to have been moved from bonded warehouse, without obtaining permission from the competent authority. Inter alia, on the basis of these violations, the AO disallowed the claim of the taxpayer for deduction under s. 10B of the Act. The AO further observed that the company was incorporated in 1988 and at that point of time deduction under s. 10B was available for five years from asst. yr. 1990-91. As in asst. yr. 1996-97 no new undertaking was established and it was merely a conversion while no separate accounts of the business of the EOU were kept, the taxpayer was not entitled to any deduction. 7.1 Before the learned CIT(A), the taxpayer submitted that there is no violation in respect of submission of forms in respect of export sales except that no prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the CIT had granted recognition to the provident fund maintained by the assessee under the relevant rules under the 1922 Act, that such recognition had been, granted after, the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had been brought to the notice of the CIT and that the said recognition had continued to remain in operation during the relevant assessment years in question, the last fact in particular clearly implied that the provident fund of the assessee did satisfy all the conditions laid down in r. 4 of Part A of the Fourth Schedule to the Act even during the relevant assessment years. In that situation we do not think that it was open to the taxing authorities to question the recognition in any of the relevant years on the ground that the assessee's provident fund did not satisfy any particular condition mentioned in r. 4. It would be conducive to judicial discipline and the maintaining of certainty and uniformity in administering the law that the taxing authorities should proceed on the basis that the recognitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods from the bonded warehouse without prior permission as procedural lapse. This lapse also did not result in derecognition of the unit under STP scheme. The learned AO therefore clearly erred in dovetailing two different issues namely, violation under the Customs Act and the claim for exemption under s. 10B of the Act. It appears that the AO declined the appellant's claim for reasons that are not very relevant. The Authorised Representative had submitted that, when a finding is based on irrelevant consideration the same stands vitiated and in this context attention was invited to the decision of the Hon'ble Supreme Court in the case of Omar Salay Mohamed Sait vs. CIT (1959) 37 ITR 151 (SC). Any businessmen are required to carry out its business in accordance with the rules and regulations laid down under various Acts. But violation of a rules and regulations provided under other Act does not automatically disqualify the businessmen from the incentive sections, if the conditions as mentioned in the relevant provision of the IT Act are fulfilled. It is also noted from the provision of s. 10B, that the section does not require that the books of accounts of the EOU should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5 We have heard the rival contention and gone through the facts of the case. On the aspects of violation of STPI norms and establishment of new undertaking, we do not find any infirmity in the findings of learned CIT(A). In respect of finding of the AO regarding conversion of unit into STPI unit, we may have a look at the following circular issued by the CBDT: Circular No. 1 of2005, dt. 6th Jan., 2005 [(2005) 193 CTR (St) 85] "Subject: Tax holiday under s. 10B of the IT Act to 100 per cent export oriented undertaking-Certain clarification-Reg. Sec. 10B of the IT Act provides for 100 per cent deduction of profits derived by a hundred per cent EOU, from export of articles or things or computer software manufactured or produced by it. The deduction is available for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or things or computer software. However, no deduction under s. 10B is available after asst. yr. 2009-10. 2. The deduction under s. 10B is available to an undertaking which fulfils all the following conditions: (i) it manufactures or produces an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under s. 10B for asst. yr. 2005-06 shall be restricted to the profits derived from exports, from and after the date of approval of the DTA unit as 100 per cent EOU. (ii) Undertaking 'B' set up in DTA, begins to manufacture or produce computer software in financial year 1996-97 relevant to asst. yr. 1997-98. It gets approval as 100 per cent, EOU in financial year 2007-08 relevant to asst. yr. 2008-09. No deduction under s. 10B shall be admissible to undertaking 'B' as the period of 10 years expires in financial year 2005-06 relevant to asst. yr. 2006-07, prior to its approval as 100 per cent EOU. (iii) Undertaking 'C' is set up in DTA in the financial year 2000-01 relevant to asst. yr. 2001-02 and engaged in the business of providing computer related services, other than those notified by the Board for the purposes of s. 10B. In financial year 2002-03, it acquires more than 20 per cent, of old plant and machinery and starts manufacturing computer software. It also gets approval as 100 per cent EOU in financial year 2002-03. Undertaking 'C' shall not be eligible for deduction under s. 10B, as there has been transfer of old plant and machinery. (iv) Undertaking 'D' is set up an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he profits and gains derived from the export of articles or things or computer software. 7.8 Regarding permission of central excise authorities referred to in grounds of appeal, to a query by the Bench, learned Departmental Representative could not explain as to how in the absence of such permission, taxpayer could undertake exports and earn valuable foreign exchange for the country. As already stated, the unit has been granted the status of 100 per cent EOU on 31st Aug., 1995. The fact of exports has already been taken cognizance by the Commr., Central Excise and Customs even while passing order dt. 28th June, 2001, levying penalty for various defaults. To say at this stage that permission of excise authorities has not been obtained before exports, is quite contrary to facts on record. In any case, no basis has been adduced before us for such a plea. 7.9 In view of the foregoing, we do not find any infirmity in the findings of learned CIT(A) and consequently uphold his order and reject the grounds raised by the Revenue. 8. Ground Nos. 2 and 3 being general in nature, do not require any separate adjudication and are, accordingly, dismissed. 9. In the result, appeal is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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