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TMI Blog2012 (5) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... gtap, V. Durga Rao, JJ. Nitesh Joshi, Adv., for the Appellant Subacham Ram CIT(DR) for the Respondent ORDER P.M. Jagtap: 1. These two appeals preferred by the Revenue against two separate orders passed by the learned CIT(A)-29 Mumbai for Assessment Year 2001-02 and 2004-05, involve some common issues and the same therefore have been heard together and are being disposed of by a single consolidated order for the sake of convenience. 2. First we shall take up the appeal of the revenue for Assessment Year 2001-02 being ITA No.6303/M/2007 which is directed against the order of the learned CIT (A)-29 Mumbai dated 20.7.2007. 3. The relevant facts of the case giving rise to this appeal are as follows. The assessee is a company which is mainly engaged in the business of export of garments. The return of income for the Assessment Year 2001-02 was filed by it on 30.10.2001 declaring total income at Nil after claiming deduction u/s 10B. The said return was originally processed by the Assessing Officer u/s 143(1) allowing the claim of the assessee for deduction u/s 10B. Thereafter assessment under section 143(3) was also made by the Assessing Officer on 31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction under the said section. Accordingly the export profit of the assessee eligible for deduction u/s 80HHC was worked out by the Assessing Officer at Rs.11,18,25,978/- and deduction to the extent of Rs. 8,94,60,782/- being 80% of the eligible profit was allowed by him. The total income of the assessee thus was computed by the Assessing Officer at Rs.48,484,68/- in the assessment completed u/s 147 r.w.s. 143(3). 4. Against the order passed by the Assessing Officer u/s 147 r.w.s. 143(3), an appeal was preferred by the assessee before the learned CIT (A) challenging therein the validity of the said assessment as well as the action of the Assessing Officer in denying deduction under section 10B and restricting its claim for deduction u/s 80HHC. The learned CIT (A) did not find any merit in the preliminary objection raised by the assessee challenging the validity of reopening of assessment on the ground that it was based merely on a change of information. He held that for reopening the assessment validily, only prima facie satisfaction of the Assessing Officer was required and such satisfaction was very much there in the case of the assessee since excessive relief was apparentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 6. We have heard the arguments of both the sides and also perused the relevant material on record. As regards the main issue involved in this appeal as raised in Ground No.1 relating to the assessee's claim for deduction u/s 10B, it is observed that the same has been decided by the learned CIT (A) vide his impugned order in favour of the assessee following his appellate order in assessee's own case for Assessment Year 2002-03 on a similar issue. As submitted by the learned Counsel for the assessee at the time of hearing before us, the revenue had filed an appeal against the order of the learned CIT (A) for Assessment Year 2002-03 before the Tribunal and the Tribunal vide its order dated 30.9.2011 passed in ITA No.2544/Mum/2006 has upheld the order of the learned CIT (A) for Assessment Year 2002-03 deciding the similar issue in favour of the assessee. A copy of the said order is also placed on record before us by him and a perusal of the same shows that similar issue has been considered and decided by the Tribunal vide paragraph Nos.18 to 23 which read as under: "18. The undisputed facts relating to ground no.1 are that, the assessee was incorporated in Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10B for five years. The assessee had already cleared the deduction for five years i.e from 1993-94 to 1997-98. For the Assessment Year 1998-99, the deduction was claimed under section 80HHC instead of deduction under section 10B. With effect from 1.4.1999, provisions of section 10B were amended and the assessee was entitled to claim deduction for ten years. As per amended provisions which is very clear that the persons who are claiming deduction u/s 10B earlier they can claim deduction for ten years. Suppose any person have claimed deduction for five years then he can claim deduction for next five years and not ten years from the date i.e. 1.4.1999. This issue has been discussed in detail by the Delhi Bench in case of Tech Books Electronics Services (P) Ltd.(supra). In that case the facts are similar as a partnership firm in the name of Tech Books Electronics Services (P) Ltd.(supra) was formed for carrying business of development and export of software data processing on 14.12.1992, the Software Technology Park of India (STPI) granted permission for the firm for setting up 100% EOU under the Software Technology Park Scheme. Later on STPI has also granted approval under section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. Our findings and observations are as under. 10.1 The exemption under s. 10B as the heading of section suggests, is in respect of "newly established hundred per cent EOUs". Section 10 was inserted in the Finance Act, 1988 w.e.f. 1st April, 1989 and later on it was amended from time to time. According to this provision, any profits and gains derived by an assessee from a hundred per cent EOU shall not be included in the total income of the assessee. As provided in cl.(2) of s.10B, the exemption is available to undertakings which fulfill all the following conditions, namely: "(i) it manufactures or produces any article or thing; (ii) in relation to an undertaking which begins to manufacture or produce any article or thing on or after the 1st day of April, 1994, its exports of such articles and things are not less than seventy five per cent of the total sales thereof during the previous year, (iii) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) regarding conduct of the assessee-firm in not claiming the exemption in earlier year are concerned, the approach of the learned CIT (A) raising this objection, cannot be legally justified because if the assessee is entitled to any benefit under any statutory provision then the past conduct cannot be relevant particularly when reference to such conduct is not made in the Act. The eligibility of the assessee has to be seen in the year in which the claim is preferred and if in earlier years the assessee waived his right then he cannot be stopped in claiming he benefit in the subsequent years". 23. In both the aforesaid decisions, the Tribunal was considering the claim for deduction in Assessment Year 2001-02 and Assessment Year 2000-01 respectively. In our opinion, these two cases cover the case in hand". 7. The Tribunal, thus, has decided a similar issue in favour of the assessee in assessee's own case for Assessment Year 2002-03 following its earlier two decisions in the cases of M/s Consindia Pvt. Ltd. (ITA 8270/Mum/2004 dated 29.1.2008 (Supra) and in the case of M/s Tech Books Electronics Services (P) Ltd., (100 ITD 125) (Del.), wherein it was held that as per the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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