9911796707
TMI Blog2014 (2) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfilment of the condition prescribed in Sec.10B for approval of an EOU unit u/s.14 of the Industries (Development & Regulation) Act, 1951. 4. The learned Commissioner of Income-tax (Appeals) grossly erred in failing to appreciate that in order to be eligible u/s.10B, an assessee has to be a 100% Export Oriented Unit as specified under Explanation 2(iv) appearing below section 10B of the Act, which defines a "hundred percent export oriented undertaking" as an undertaking so approved by the Board appointed in this behalf by the Central Government u/s.14 of the Industries Development & Regulation Act, 1951. The assessee's 100% Export Oriented Unit was not such an approved undertaking. 5. The learned Commissioner of Income-tax (Appeals) grossly erred in failing to apply the ratio of the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Regency Creations Ltd., (27 Taxmann.com 322) which squarely applies to the present case. 6. For these and such other grounds as may be urged at the time of hearing, the order of the learned CIT (Appeals) may be vacated and that of the Assessing Officer be restored." 3. Facts of the case, in brief, are that the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled for the subsequent year on the same issue is liable to be dismissed. He accordingly submitted that the grounds raised by the Revenue should be dismissed. 7. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the assessment order for A.Y. 2008-09 has also denied the claim of deduction u/s.10B on the ground that the assessee company is not a 100% EOU since it is not approved by the Board appointed in this behalf by the Central Government u/s.14 of the Industries (Development and Regulation) Act, 1951. Further, the 100% EOU as per STPI is not at par with the 100% EOU approved by the Board appointed u/s.14 of the IDRA, 1951 by the Central Government. Relying on the decision of the Hyderabad Bench of the Tribunal in the case of Infotech Enterprises Ltd. (Supra) the Assessing Officer disallowed the claim. We find on an appeal filed by the assessee, the Ld.CIT(A) allowed the claim of deduction u/s.10B of the by observing as under : "3.3.1. I have carefully considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given recognition equivalent to the Board constituted under Industries Development & Regulation) Act. The appellant has placed reliance on different judgments, as can be seen from the submissions quoted above, which has approved the allowability of this deduction on the basis of STPI registration and it was also claimed that the above referred judgments have been given after taking into account the judgment of Infotech Enterprises Ltd. relied upon by the AO. The appellant has claimed that all the conditions prescribed in the section have been fulfilled. From the perusal of the assessment order also it is evident that the appellant has submitted submissions claiming that all the conditions are satisfied and the AO after examining the submissions made by the appellant has mainly held that the appellant is not eligible because it has not obtained the approval under the Industries (Development & Regulation) Act, 1951. A brief reference can also be seen in the assessment order, which can be considered to be saying that the AO was of the opinion that the appellant is not engaged in the manufacturing of software. However, the above inference of the AO seems to be lacking any convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he approval for EOU available with the appellant is not from the Board constituted u/s 14 of the Industries (D&R) Act, 1951, but is from the STPI. However, the claim of the appellant that the STPI is a body constituted by the Govt. of India for the specific purpose of granting approval of EOU status to units engaged in the manufacturing and exports of softwares and therefore, the same is equivalent and serving the same purpose is required to be considered, is required to examined. For this purpose, the appellant has referred to a comparative table giving reference to the benefit of section 10B in Foreign Trade Policy of 2004-2009 vis-a-vis Export Import Policy, 2002-2007 and Export Import Policy 1992-1997, to bring the point to the fore that the Government has accepted the grant of benefit u/s 10B under the approval granted by STPI. The appellant has also claimed that the Assessing Officer has incorrectly followed the decision of the ITAT, Hyderabad given in the case of Infotech Enterprises Pvt. Ltd. Vs. JCIT (2003) 80 TTJ (Hyd) 589, which was delivered before the issuance of J Instruction No. 1 of the CBDT dated 31.3.2006 and the Minutes of the Industrial Ministerial Communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, it has to be ensured that all other conditions specified in sec. 10A are fully satisfied before allowing any such claim." The Tribunals have in the judgments relied upon by the appellant, after 2006 have come to the conclusion that the registration granted by STPI should be considered as enough for the fulfillment of this condition. The Tribunals have also considered the Minutes of the Industrial Ministerial Communication vide letter dated 23.3.2006 issued by Ministry of Communication &Technology, as discussed in detail in the case of DCIT Vs. Vallient Communications Ltd. In Regency Creation Ltd. judgment given in ITA No. 1588/Del/2010/ A.Y. 2007-08, the Hon'ble ITAT also relied on a clarification obtained under RTI, which had stated that no approval / ratification of STPI approval is required from BOA formed by Ministry of Commerce u/s 14 of Industries (Development & Regulation) Act, 1951. For the above reason, the Tribunals have found that the decision of Infotech Enterprises Ltd., 85 ITD 325 (Hyd) will not be applicable after 2006. In view of the discussions made above, from which it is apparent that the overwhelming view of the Tribunals have been to treat the approva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
