9911796707
TMI Blog2012 (7) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... er assessment years 2006-07 and 2007-08, directing the AO to consider assessee’s claim for deduction u/s 10A - matter remanded back to the file of the AO directing him to consider assessee’s claim of deduction u/s 10A - appeal filed by the assessee is treated as allowed for statistical purpose. - ITA No. 577/Hyd/2012 - - - Dated:- 8-6-2012 - Chandra Poojari, Saktijit Dey, JJ. For Appellant : D. V. Anjaneyulu For Respondent : K. Viswanatham ORDER Per : Saktijit Dey, JM : This appeal by the assessee is directed against the order dated 22-3-2012 passed in ITA No.432/DCIT-3(3)/CIT(A)-IV/10-11 pertaining to the assessment year 2008-09. 2. The assessee has raised the following grounds before us:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - after claiming deduction of ₹ 2,18,19,831 u/s 10B of the Act. Subsequently, the assessee finding that it has wrongly claimed deduction/s 10B instead of u/s 10A of the Act, filed a revised return u/s 139(5) on 19-2-2010 declaring an income of ₹ 38,16,365/- after claiming exemption u/s 10A of the IT Act. In course of assessment proceedings u/s 143(3) the assessee explained before the AO that in the original return, the assessee has wrongly claimed deduction u/s 10B because of the fact that the assessee s claim of deduction u/s 10B had been accepted by the department up to the assessment year 2006-07. Subsequently when the assessee became aware of the fact that it is entitled for exemption u/s 10A and not u/s 10B, revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenience, the relevant portion from the order of the CIT (A) is extracted hereunder:- 6.1 So far the claim of deduction u/s 10A is concerned, it is seen that as per the proviso below sec. 10A(1A), no deduction u/s 10A shall be allowed to an assessee who does not furnish a return of income on or before the due date specified under sub sec.(1) of section 139. In the case of the present appellant, however, o deduction at all was claimed u/s 10A in the return filed u/s 139(1). It was only in the revised return filed in terms of the provisions of sec. 139(4) that the appellant filed such claim. Accordingly, it cannot be said that the appellant s claim in accordance with the proviso stated above, which was inserted w.e.f. 1-4- 2006. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment was also allowing the assessee s claim of deduction u/s 10B only. For the assessment year 2006-07, the order passed u/s 143(3) allowing exemption u/s 10B was set aside by the CIT (A) by invoking his jurisdiction u/s 263 of the IT Act and directing the assessee to disallow the claim of deduction u/s 10B as the assessee is not entitled to such claim. The assessee being aggrieved by the order passed under section 263, filed an appeal before the ITAT. The ITAT, Hyderabad Bench disposed of the appeal by an order dated 5-8-2001 in ITA No. 870/Hyd/11 directing the assessing officer to consider the assessee s claim of deduction u/s 10A. Identical issue again cropped up for assessment year 2007-08 and the dispute again came before the ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes as a Bar in allowing deduction claimed in the revised return is not a correct interpretation. It is a fact on record that the assessee up to the assessment year 2006-07 was claiming deduction u/s 10B and the department was allowing the same even under scrutiny assessments. It was only in the assessment year 2006-07 after the CIT set aside the order passed u/s 143(3) directing the AO to disallow the claim of deduction u/s 10B that the assessee is claiming deduction u/s 10A of the Act. It is also a fact that the ITAT in assessee s own case for assessment year 2006-07 directed the AO to consider the assessee s claim for deduction u/s 10A by observing in following manner:- We have considered the rival submissions and have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is 100% EOU entitled for exemption u/s 10A and wrongly claimed the deduction u/s 10B and it was a technical mistake in claiming deduction u/s 10B. The assessee s counsel further argued that the assessee has fulfilled all the requirements of provisions of section 10A. However, this claim of the assessee not examined by the lower authorities and they stick to one contention that the assessee claim u/s 10B is not allowable. We are agreeing with the department that thd condition for allowance of deduction u/s 10A and 10B are stood on different footing. However, the department cannot thrust upon the assessee to avail deduction u/s 10B only. If the assessee entitled for deduction u/s 10A instead of 10B, that claim required to be examine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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