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TMI Blog2016 (5) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... file the documents earlier. In this case anyhow the issue of deduction u/s 10’A’is being sent back to the A.O. for verification. Hence we are of the opinion that on these facts the A.O. has to consider the claim in all its aspects afresh, without being constrained by the order of the ITAT for the A.Y. 2002-03 Depreciation on the value of purchase of UPS, Printers, Batteries etc - Held that:- The assessee has claimed depreciation at the rate of 60% on thevalue of purchase of UPS, Printers, Batteries etc. The A.O. allowed only 15% depreciation. The Ld.CIT(A) has not adjudicated the issue. As we set aside the matter to the file of A.O., with the direction that the Jurisdictional High Court judgement on the issue be considered and the matter be disposed of in accordance with law. - ITA No. 6386 and 6387/Del/2012 - - - Dated:- 3-5-2016 - Shri J. Sudhakar Reddy, Accountant Member And Shri Sudhanshu Srivastava, Judicial Member For the Appellant : Sh. Vijay Mehta, C.A. For the Respondent : Sh. T. Vasanthan, Sr.D.R. ORDER Per J. Sudhakar Reddy, Accountant Member Both these appeals filed by the assessee and are directed against separate orders of the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome and subsequently it filed a revised return of income and claimed deduction under section 10A of the Act. The A.O. held that the assessee is not eligible to claim deduction u/s 10A of the Act. The assessee carried the matter in appeal. The Ld.CIT(A) vide his order dt. 31.01.2005 upheld the orders of the Assessing Officer (A.O.). 2.2. The assessee carried the matter before the ITAT. The ITAT in order dated 17/09/2007, in ITA No.3640/Del/2005, set aside the order of the Ld.CIT(A) and directed the A.O. to re-examine the issue of deduction u/s 10A of the Act and pass fresh orders in accordance with law. In the fresh assessment proceedings the A.O. applied the findings given by the Ld.CIT(A) and in the immediately next A.Y. 2002-03 vide order dt. 29.2.2008 and denied exemption claimed by the assessee u/s 10A of the Act. Aggrieved the assessee carried the matter in appeal before the Ld.CIT(A) without success. The First Appellate Authority in his appellate order noted that the order of the Ld.CIT(A) for the A.Y. 2002-03 has been upheld by the ITAT, Delhi Benches and hence the AO has rightly rejected the claim of the assessee for deduction u/s 10A of the Act. Now the assessee is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... converted its existing domestic unit to STPI unit, it would still be eligible to claim deduction under section 10 A of the Act for the A.Y. 2001-02 as it falls within the period of 10 years starting from A.Y. 1996- 97. In order to support this contention he relied on CBDT Circular no.1 of 2005 dt. 6.1.2005. He further submitted that the Ld.CIT(A) has in his order for the A.Y. 2002-03 given a specific finding that the assessee is eligible to claim deduction u/s 10A of the Act for the unexpired period of 10 years, during which period this impugned A.Y. would fall. He pointed out that the revenue has accepted this finding of the Ld.CIT(A) and has not preferred an appeal. Thus he argues that this issue has attained finality and hence for the A.Y. 2001-02 the A.O. should have granted deduction u/s 10A of the Act. He further submitted that the ITAT gave a factual finding that S.10A(9) of the Act would apply to the assessee based on the law that was in the statute on that date. The Ld.Counsel submitted that the provisions of S.10A(9) of the Act underwent amendments and that this sub section was omitted from the statute from the A.Y. 2004-05. He relied on the judgement of the Hon ble Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pired period of 10 years, from the year set up of the first domestic unit which was in the A.Y. 1996-97. Hence the assessee is otherwise eligible for deduction u/s 10A for the year under consideration. This is also clear from a plain reading of the Circular of the CBDT, Circular No.1 of 2005 dated 6.1.2005. Hence in our view it is not necessary to go into the other aspects of this issue in this year. 6. The other ground on which deduction u/s 10A was denied, is that the provisions of sub-section 10A(9) of the Act was attracted on the facts of this case. The provisions of S.10A(9) of the Act would apply, if on the last day of the Previous Year the shares of the company carrying not less than 51% of the voting power are not held by the same persons who were holding shares, which carried not less than 51% of the voting power on the last day of the year, in which the undertaking was set up. 6.1. We find that, this provision i.e. S.10A(9) was omitted from the statute book during the A.Y. 2004-05. The Courts have laid down that if a provision is omitted from the statute, and not repealed, it should be treated as if such provision never existed in the statute book. This issue is now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal 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 been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision. 8. Admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statute, as it was understood from the words if a person has been convicted to include anterior conviction. In the explanation 1, present tense is used with an injunction that the shares are not beneficially held by the persons who hold the shares in company. . The present tense cannot be assumed to describe the status of the shareholder as the owner, but the status of the shares which are beneficially held. On this interpretation the language of the section can only be understood to describe the date on which the undertaking was set up as applicable only for those who are setting up the undertaking after the new provision, so that in case of others, the date has to be understood at best, as on 1st April, 2000, the date on which the law was brought in the statute. 6.4. Thus for the A.Y. 2001-02 the assessee would be eligible for claim of deduction u/s 10A of the Act. 6.5. Coming to the application for admission of additional evidence for the A.Y. 2001- 02, we reject the same for the reason that, the alternative contentions of the assessee are found to be covered in favour of the assessee as discussed above. 7. Coming to the A.Y. 2007-08 we consider the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.8.99 Resolution stating that the existing premises (2nd floor) used by the assessee should be used for the new export unit and the domestic unit of the assesse should be shifted on ground floor of the same building. 109 Ledger A/c of Direct Credit Exchange (London) Advance was received by the assesse from Direct credit exchange Ltd, UK company. 110-116 Profit and loss account and balance sheet for the year ended 31.3.2000 i) On page 139 of P.B. schedule of fixed assets for the year ended 31.03.00 shows that there is huge addition of computer equipments and furniture and fixtures which also supports the fact that new export unit was started in F.Y. 1999-00. ii) On page 141 of P.B. it can be seen that there IS substantial increase in salaries since a new export unit was started by the assesse. 117-120 FAQ for STPI scheme download from web site of STPI This shows the condition of 50% of export sale of preceding year and the domestic sale cannot be made from export unit 121-123 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it need not to be a suo motto action of the Tribunal. The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is well settled that the procedure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect. Further the Hon ble Delhi High Court in the case of CIT vs. Virgin Securities Credits P.Ltd. 332 ITR 396 at para 8 held as follows. 8. The aforesaid contention appears to be devoid of any merit. It is a matter of record that before admitting the additional evidence, the CIT (A) had obtained remand report f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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