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TMI Blog2017 (5) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... cer. 3. It is therefore, prayed that the order of the Ld.CIT(A) may be set-a-aside and that of the order of the Assessing Officer may be restored to the above extent. 3. Brief facts of the case as culled out from records are that, assesse is a Private Limited Company engaged in the business of Computer Software Development. Income tax return, declaring income of Rs. 1,59,20,642/- was filed on 25/09/2010, after claiming deduction u/s.10A of the Act at Rs. 90,22,677/- towards profit from newly established undertakings in free trade zone. The case was selected for scrutiny assessment and necessary information were called for vide notice under section 143(2) of the Act, followed by 142(1) of the Act issued and duly served upon the assessee. During the course of assessment proceedings Learned Assessing Officer (in short ''Ld.AO'') examined the deduction of claim u/s.10A of the Act, and without pointing out any mistake in the calculation of claim by just following the consistent view of his predecessor disallowed the claim of assessee of Rs. 90,22,677/- u/s.10A of the Act. Ld.AO also made disallowance u/s.14A of the Act at Rs. 2334647 and income assessed at Rs. 2,72,77,966/- 4. Aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished undertakings in free trade zone. For A.Ys 2008-09 and 2009-10 in the proceedings before Ld.AO assessee's claim was denied, but Ld.CIT(A) deleted the disallowance and thereafter Revenue's appeal was dismissed by the Coordinate Bench vide ITA nos.711& 712/Ahd/2014 dated 14/03/2017 confirming the order of Ld.CIT(A). 9. Further, in this appeal we observe that assessee has claimed deduction u/s.10A of the Act and has filed form no.56F in support of the claim. There is no dispute with regard to fulfillment of basic conditions embedded in the provisions of section 10A of the Act. It seems that Ld.AO has treated assessment year 2008-09 as the first year of the claim made u/s.10A of the Act. But from perusal of the records we notice that assessee has been claiming benefit u/s.10B from A.Ys 2002-03 to 2007-2008 and from A.Y 2008-09 onwards it started claiming benefit u/s.10A and the period of ten consecutive assessment years will furnish in A.Y.2011-12. 10. We further observe that issue raised in this appeal are squarely covered by the decision of Coordinate Bench in assessee's own case in A.Ys 2008-09 and 2009-10 in ITA no.713 & 712/Ahd/2014 dated 14/03/2017 11. Ld.DR has not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed the claim by following the earlier years practice of disallowance. However, he made the disallowance of deduction under section 10 B. The appellant is in appeal before me against such disallowance. It has raised additional grounds of appeal which were duly forwarded to the AO and his comments have also been obtained. The appellant, in the additional grounds has submitted that in case the claim is not held to be admissible under section 10 A it may be allowed either under section 10 A or 10 B as allowed in earlier years up to A.Y 2007 - 08 by ITAT. It has also submitted prescribed for No. 56F for deduction under section 10 A and 56G for deduction under section 10 B, In the report the AO has submitted that the deduction under section 10 B cannot be allowed to the appellant as the appellant has not furnished the prescribed form along with the return of income and it was the duty of the appellant to follow the provisions of the section which he failed to do. He has also reported that the claim under section 10A of the Act cannot be allowed as the report furnished under section 10 A in form 56F is not correct. It has been mentioned that in point 8 of the report, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Accountant can be filed even during the course of assessment proceedings. Therefore, the objection raised by the AO is not acceptable. The AO has also objected to the allowance of claim under section 10A on the ground that in form number 56F the appellant has mentioned that it was the eighth year of claim of deduction where as it was for the first year, the deduction was the claimed under section 10 A. The claim of the AO is not acceptable as it is not the first year of claim of deduction by the appellant. The appellant has been claiming deduction under section 10 B in the earlier years which was allowed by the orders of ITAT. The conditions which are to be seen before allowing the claim under section 10 A are, first of all, whether the activity of production has commenced in STP before a particular year. The other conditions which are to be examined are regarding the formation of undertaking whether it is a new undertaking or formed by splitting up of an existing unit. In the present case the issue, of formation of undertaking has been examined in the earlier years and has been held to be valid formation. The earlier objection of having more than 20% old plant and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not held entitled to the benefits of sec. 10B of the Act but to a right claim under section 10 A therefore, there is no reason the claim should be allowed. The only objection can be that the appellant would not get the deduction for further 10 years from the year of first claim. The appellant has itself shown in the relevant form that it was the eighth year of claim and accordingly the intention of the appellant is not to claim the deduction for further 10 years. Even otherwise the appellant would not be entitled for deduction for 10 years as it has already made the claim under section 10B for initial eight years. The appellant on the other hand has placed reliance on certain decisions which are related to grant of deduction under section 10 A. The appellant has also submitted that keeping in view the decision of honourable Gujarat High Court in case of Saurashtra Cement and Chemicals Industries Ltd 123ITR669 it should be allowed the deduction on the fact that once the deduction has been allowed in the first year of operation it cannot be denied in the subsequent year. As has been discussed in the preceding discussion the appellant satisfies all the conditions and is accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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