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TMI Blog2018 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that no appeal can be filed by the revenue, once, the order of ld. CIT(A) in any of the year has reached to its finality. See UNION OF INDIA AND OTHERS VERSUS KAUMUDINI NARAYAN DALAL AND ANOTHER [2000 (12) TMI 101 - SUPREME COURT] - decided against revenue. - ITA No.1625/Ahd/2016 - - - Dated:- 3-10-2018 - Shri Waseem Ahmed, Accountant Member And Smt Madhumita Roy, Judicial Member For the Appellant : Shri Lalit P. Jain, Sr.D.R. For the Respondent : Shri V. S. Banthia, A.R. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: This is an appeal by the Revenue against the order of the Commissioner of Income Tax (Appeals)-3, Ahmedabad, vide Appeal No.CIT(A)-3/Cir.3(3)/26/15-16 dtd. 07.04.2016 for the Assessment Year (AY) 2007-08. 2. The revenue has raised the following grounds of appeal: 1. The ld. CIT(A) has erred in law and on facts in deleting the disallowance of exemption u/s. 10B of the Act of ₹ 1,27,84,850/- 2. The ld. CIT(A) has erred in law and on facts by not appreciating that the assessee had failed to fulfill the conditions laid down for exemption u/s 10B of the Act and as such not eligible for exemption. 3. The Ld, CIT(A) has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he units approved by the STPI are eligible for deduction u/s 10B of the Act. The assessee in support of his claim relied on the order of Pune Tribunal in the case of Cat Labs Pvt. Ltd. vs. DCIT in ITA No.131/PN/2013 pertaining to the A.Y. 2009-10 vide order dated 20.02.2014. 5.1 The assessee in support of his claim also relied on various instructions/notifications issued by the CBDT. 5.2 The ld CIT(A) after considering the submission of the assessee allowed exemption u/s 10B of the Act by observing as under: 5.2 I have gone through the observations made by the assessing officer in the assessment order and the submission filed by the appellant. The facts submitted by appellant are that the exports are certified by STPI Gandhi Nagar and Reserve Bank of India, Ahmedabad. The firm has not done any domestic business or sales. The accounts of the firm are audited by qualified Chartered Accountant (CA) who has verified the accounts and certified that whole of the income declared by the Appellant is exempt u/s 10B of the IT Act. Data processing was done mainly for SNL financial, Charlottesville, Virginia, USA, College Source USA Software and animation work were executed for vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services Pvt. Ltd. v/s ACIT Circle 5 ITA no. 120/ahd/2012 where in the judgement of Delhi High Court in Regency Creation Ltd. referred by the learned DCIT is also dealt The documents submitted by appellant are examined. The Auditor/CA Shri Kishor Goyal has signed Form 56G on 18.10.2007 for claim u/s.10B before the due date of filing of return of income and the return has been filed on 27.10.2007. Perusal of the assessment order reveals that the A.O. had disallowed deduction claimed u/s.10B of the I.T. Act of ₹ 1,27,84,850/- as the appellant was not having proper approval from Board of approvals (BoA) as mandated, by explanation 2(iv) of Sec.10B of the I.T. Act. In addition to discussing procedural aspect pertaining to the issue, the AO has heavily relied on the ratio of Delhi High Court in the case of CIT Vs. Regency Creations Ltd. In this regard it is observed that the CBDT vide circular No.684 dated 10.06.94 has specifically enlarged the operation of Sec.10B to include 100% export oriented units established in approval Electronic Hardware Technology Parks (EHTP) or Software Technology Parks (STPJ7 This makes it abundantly clear that the appellant is eligible to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Regency Creations Ltd. which was relied by AO has been considered by Hon'ble ITAT, Ahmedabad in the case of Quality BPO Services Pvt. Ltd. Vs. CIT dated 04.11.2015 before deciding similar issue of allowing deduction u/s.10B of IT Act, 1961. My predecessor in appellant's own case for A.Y.2009-10 vide order No.CIT(A)-XI/366/Wd-6(2)/11-12 dated 22.05.2013) has allowed the deduction u/s.10B of IT Act. It is noteworthy to mention that the Deduction was allowed in earlier year and reliance is placed in the case of CIT Vs. Relco Pvt. Ltd. 359 ITR 291(Mad.) wherein it is held, where exemption u/s.10B was allowed to assesses in previous assessment year, in absence of any violation of condition of license, exemption was to be granted for subsequent year also . The fact and substance as emerged from above is that the deduction u/s.10B has been allowed in earlier as well as in subsequent year. Therefore, is is not the new issue, the principle of consistency required to be followed as has held in following case laws: (i) DCIT Vs. Sulabh International Social Service Organisation [350 ITR 189 (Patna)] (ii) CIT Vs. Ranganathar Co. [316 ITR 252 (Mad)] (iii) Gopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied u/s 10B of the Act. 8.1 Now the controversy before us is that whether the approval from STPI without having the same ratified by the Board of approval is sufficient to claim the deduction u/s 10B of the Act. In this regard, we note that the Hon ble ITAT, Pune Bench in the case of Cat Lab Pvt. Ltd. (supra) in the identical facts and circumstance held that there is no need to take separate approval from the BOA for claiming the deduction u/s 10B of the Act. The relevant extract is reproduced below: 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of an order under section 263of the Act has to be tested with regard to the position of law as it exists on the date on which such an order is passed by the CIT. In the case under consideration, it is clear that on the date, when the CIT passed his order under section 263 of the Act, the view taken by the Tribunal in the case of Sudharani (supra). It is settled law that when two views are possible on the date of the order passed by the Commissioner, the CIT should agree with the view taken by the assessing officer was in consonance with view taken by this Tribunal, even if there has been a loss of revenue. Hence, powers under section 263 of the Act cannot be exercised by the CIT. Our view is fortified by the judgment of Delhi High Court in the case of CIT vs. Honda Siel Power Products Pvt. Ltd. in ITA Nos.1376/2009 and 1382/2009 dated 5.7.2010. In view of the above, we reverse the order of the CIT and allow the appeal filed by the assessee. 7. In the light of decisions of Co-ordinate Bench as well as other Benches of the Tribunal, wherein it has been categorically held that approval by Software Technology Parks of India comes under the Ministry of Communication Informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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