9911796707
TMI Blog2016 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... (3 units) and Nasik (2 units). The deduction under section 10A of the Act was claimed in respect of Mumbai Unit-1 and Pune unit-1 only. Subsequently, the assessee filed a revised return of income on 23/03/2014 declaring total income at Nil after setting off the loss from Pune Unit-II against income from Mumbai Unit-I and Pune Unit-I and claiming deduction of Rs. 31,89,63,929/- under section 10A of the Act. The assessee had also put forth an alternate claim that it be granted deduction under section 80HHE of the Act in case the claim under section 10A of the Act was not allowed. The case was taken up for scrutiny and the assessment was completed under section143(3) of the Act vide order dated 17/3/2006 allowing the assessee deduction claimed under section 10A of the Act. 2.2 Subsequently, the CIT-10, Mumbai in exercise of revisionary powers passed an order under section263 of the Act dated 20/11/2007, set aside the assessee's claim for deduction under section10A of the Act and directed the Assessing Officer to re-examine the assessee's claim in the light of the provisions of section 10A(9) of the Act. In this order under section 263 of the Act, the CIT also rejected the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, the CIT(A) dismissed the assessee's appeal vide the impugned order dated 1/3/2013 3.1 Aggrieved by the order of the CIT(Appeals)-22, Mumbai, the assessee is in appeal before the Tribunal raising the following ground:- "1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)-22, Mumbai has erred in upholding the order of the learned Income Tax Officer -10(2)(4), Mumbai and disallowing the claim of deduction under section 10A of the Act of INR 31,89,63,890/- in respect of the Appellant's STP Units in the light of the erstwhile provisions of section 10A(9) of the Act." 3.2.1 The Ld. Representative for the assessee reiterated the submissions put forward before the authorities below that by virtue of the omission of section 10A(9) of the Act from the statute by Finance Act, 2003 w.e.f. 1/4/2004. Section 10A of the Act should be read as if the provisions of sub-section(9) thereof never existed on the statute book since the omission of sub-section (9) of section 10(A) of the Act was made without a saving clause In these circumstances, the Ld. Representative for the assessee submitted that the deduction under section10A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never had sub-section(9). 3.2.4 The Ld. Representative for the assessee further submitted that the aforesaid decisions of the Co-ordinate bench in the case of GE Thermometrics India Pvt. Ltd. (supra) has been upheld by the Hon'ble Karnataka High Court vide order in ITA No.876 & 877/2008 dated 25/11/2014, wherein Revenue's appeal against the aforesaid order was dismissed and the substantial question of law was answered in favour of the assessee. 3.2.5 The Ld. Representative for the assessee submits that in view of the facts and circumstances of the case on hand and the judicial pronouncements relied upon, the orders of the authorities below in denying the assessee deduction under section 10A of the Act in respect of the assessee's STPI units at Mumbai and Pune in view of the erstwhile provisions of section 10A(9)of the Act be reversed and the assessee's claim for deduction under section10A of the Act be allowed. 3.3.1 Per contra, the Ld. Departmental Representative strongly supported the orders of the CIT(A) in disallowing the assessee's claim for deduction under section10A of the Act in respect of its STPI units, in view of the fact that its claim is hit by the provisions of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue before us for consideration and adjudication is whether the order of the authorities below were correct or not in disallowing the assessee's claim for deduction under section 10A of the Act amounting to Rs. 31,89,63,,890/- in respect of the assessee's STPI units in Mumbai and Pune in the light of the erstwhile provisions of sub-section(9) of section 10A of the Act. 3.5.2 In the year under consideration WNS(Mauritius) Ltd. a wholly owned subsidiary of WNS Holdings acquired the entire share capital of the assessee from British Airways Ltd., U.K. In the return of income the assessee for assessment year 2003-04 the assessee had claimed deduction under section 10A of the Act; submitting that the amendment carried out by Finance Act, 2003, wherein section 10A(9) of the Act was deleted was an amendment of clarificatory nature and such deletion should be considered to have been omitted retrospectively. In original scrutiny assessment proceedings, the assessment was completed under section 143(3) of the Act vide order dated 17/3/2006 allowing this claim and accordingly the assessee was granted the deduction under section10A of the Act. In the order of re-assessment for assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of law before the Hon'ble High Court was: "Whether the Tribunal was correct in holding that in view of the omission of sub-section 9 to Section 10B of the Act, w.e.f. 01.04.2004, it should be understood that the said section never existed in the statute book and therefore the benefit claimed by the assessee u/s. 10B should be allowed?" Their Lordships at para 7 and 8 of their order (supra) have answered the question holding as under:- "7. The Apex Court in the case of KOLHAPUR CANESUGAR WORKS LTD. VS UNION OF INIDA reported in AIR 2000 SC 811 dealing with the effect of deletion of a provision in the statute is held at Para 38 as under:- "38. The position is well-known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this Rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be read as having never been passed and had never existed on the statute. In this view of the matter, we reverse the order of the CIT(A) on this issue and direct the Assessing Officer to allow the assessee's claim for deduction under section 10A of the Act for assessment year 2003-04. It is accordingly ordered. 3.5.6 Before parting, we record that we have carefully perused the orders of the Co-ordinate benches of ITAT in ITA No.2566/Mum/2009 for assessment year 2004-05 and ITA No.348/Mum/2008 dated 17/06/2008 cited by the Ld. Departmental Representative. We find that contrary to this averments, these Co-ordinate benches have not adjudicated on the merits of the assessee's claim for deduction under section10A of the Act for assessment year 2003-04. In the Tribunal's order for assessment year 2004-05, the bench could not have adjudicated on the matter, as the present appeal for assessment year 2003-04 was not before it. In respect of the Tribunal's order dated 17/6/2009 the CIT's order under section 263 of the Act for assessment year 2003-04(supra), the bench has only upheld the CIT(A)'s assumption of jurisdiction under section 263 and not adjudicated on the assessee's claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
