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TMI Blog2015 (6) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is held not applicable for claims before the appellate authorities. 3. Without prejudice to the above, the learned CIT(A) erred in holding that the appellant is not eligible for deduction u/s 10B on the ground that there is no approval by the Board without appreciating the fact that now no such procedure and that the Development Commissioner is delegated with such powers and thereby erred in holding that the assessee is not eligible for deduction relying on decision of CIT Vs. Regency Creations of Delhi High Court ignoring the very same court in the case of Technoate E Solutions reported in 354 ITR 110 after considering the delegated powers held deduction u/s 10A is allowable though there is no approval by Board." 2. Briefly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 284 ITR 323(SC) and the decision of the Hon'ble Orissa High Court in case of Orissa Rural Housing Development Corporation Ltd., 343 ITR 316 held that as assessee has not filed any revised return claiming exemption u/s 10A, claim of assessee cannot be entertained, subsequently, in course of appeal proceeding on the basis of a mere request. While doing so, CIT(A) observed that even in respect of exemption u/s 10A also, assessee did not file the certificate from the auditor in form No. 56F as per the statutory requirement. Accordingly, CIT(A) dismissed the ground raised by assessee. 4. Learned AR submitted before us that even though assessee may not be eligible for exemption u/s 10B of the Act in absence of approval from the prescribed aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has exported software services to USA, its alternative claim u/s 10A cannot be rejected. In this context, he relied upon a decision of ITAT, Hyderabad Bench in case of Cloud Softek of India Ltd., Vs. ITO in ITA No. 483/Hyd/13 dated 13/09/13. 5. Learned DR, on the other hand, relied upon the orders of CIT(A). 6. We have considered the submissions of the parties and perused the orders of revenue authorities as well as the other materials on record. The only issue arising for consideration before us in the present appeal is whether CIT(A) was justified in not entertaining assessee's additional ground claiming exemption u/s 10A. As can be seen, CIT(A) has dismissed assessee's additional ground only for the reason that the claim of deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not hold anything contrary to what was held by the previous judgment in the case of National Thermal Power Company Ltd. (supra) to the effect that even if a claim not made before the A.O., it can be made before the appellate authorities. It was held by the Hon'ble Bombay High Court that the power of the appellate authority to entertain such a claim has not been negated by the Hon'ble Supreme Court in the judgment in the case of Goetze (India) Ltd. And the Hon'ble Supreme Court in fact has made it clear that the issue in that case was limited to the power of assessing authority and that the judgment does not impinge on the power of the Tribunal u/s 254 of the Act." 7. So far as the allegation of CIT(A) that assessee has not submitted re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. Respectfully following the decision of the Delhi High Court in their final decision in the case of CIT vs. Valiant Communications in ITA.No. 2002 of 2010 in Civil Misc. Appln. No. 12/2013 we hold that the claim of the assessee for deduction under section 10A requires to be examined in accordance with law and hence, we remit the issue to the file of Assessing Officer to decide denovo the claim of the assessee in the present case." 8. Considering the fact that there is no dispute that assessee is a 100% EOU and has exported software services to outside India, assessee's alternative claim u/s 10A requires to be considered. Since the exemption claimed u/s 10A was not raised before AO and though raised before the CIT(A), but, was not enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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