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TMI Blog2021 (8) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... or which they are entitled under the provisions of the Income Tax Act - adjudication in this writ petition is done with reference to the interpretations to be considered for the purpose of availing the benefit of Section 10A and regarding all other factual disputes, it is for the Assessee to pursue the same before the Assessing Authority for the purpose of completion of reassessment proceedings. If at all the writ petitioner-Company has already claimed the benefit and in order to establish the said claim, the writ petitioner is at liberty to submit the documents and materials at the time of participating in the reassessment proceedings. WP dismissed. - WP No.27102 of 2016 And WMP No.23283 of 2016 - - - Dated:- 2-8-2021 - Honourable Mr. Justice S.M.Subramaniam For the Petitioner : Mr.N.V.Balaji For the Respondents : Mr.D.Prabhu Mukunth Arunkumar, Junior Standing Counsel for Income Tax. ORDER The order dated 18.07.2016, disposing of the objection filed by the Assessee for reopening of the assessment under Section 147 of the Income Tax Act, 1961, is under challenge in the present writ petition. 2. The petitioner is a Private Limited Company incorpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso clause to Section 147 of the Income Tax Act, are to be complied with. Thus, the initiation itself is without jurisdiction. 8. The learned counsel for the petitioner to substantiate the said contention, drawn the attention of this Court with reference to the spirit of Section 10A of the Income Tax Act. It is contended that as per Section 10A sub-section (2), the petitioner is entitled for the benefit of the said provision and it was rightly considered by the Assessing Authority and therefore, the very same ground cannot be a reason for reopening of assessment under Section 147 of the Income Tax Act. 9. In view of the fact that the issue was considered elaborately and the reopening is made beyond four years and the very same reason is furnished for the purpose of reopening, it is to be construed that the proceedings are nothing but change of opinion and not based on any tangible materials available on record. 10. The learned counsel for the petitioner relied on the instruction No.1 of 2006 dated 31.03.2006 issued by the Central Board of Direct Taxes (CBDT), wherein the deduction under Section 10A of the Income Tax Act was clarified. As per the said clarification, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this writ petition is, whether the petitioner-Assessee is eligible to claim the benefit under Section 10A of the Income Tax Act. The point of jurisdiction raised is relating to Section 10A of the Income Tax Act. The reasons for reopening is also connected with the said provision. Thus, the interpretation of the said provision is required for the purpose of deciding the issue raised in this writ petition. 15. Let us consider Section 10A of the Income Tax Act. Subsection (1) enumerates that subject to the provisions of this section, a deduction of such profits and gains as are derived by an undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce such articles or things or computer software, as the case may be, shall be allowed from the total income of the Assessee . 16. Sub-section (2) is relatable to the facts and circumstances of the case on hand. Sub-section (2) of Section 10A of the Income Tax Act, reads as under:- This section applies to any undertaking which fulfils all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day of April, 1981, in any electronic hardware technology park or as the case may be, software technology park. 18. Therefore, the case of the petitioner falls under sub-clause (i)(b) of Section 10A of the Income Tax Act. They are manufacturing in the software technology. The said factum is not disputed by the Revenue also. Therefore, they claim commencing on or after the 1st day of April 1994. If commencement of manufacture is in software technology park, then the benefit under Section 10A of the Act is to be extended is also the arguments advanced. 19. Sub-clause (i)(c) denotes commencement of manufacture on or after the first day of April, 2001 in any special economic zone. Therefore, if any manufacture begins on or after the first day of April, 2001, it must be in any Special Economic Zone. 20. To make the interpretation more clear, commencement of manufacturing after 01.04.1981 in any free trade zone or commencement of manufacture on or after 01.04.1994 in any electronic hardware technology park or in between sub-clauses (i)(b) and (i)(c), the word 'or' is not contemplated. Therefore, clause(c) is independent and clauses (a) and (b) are connected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture, admittedly, commenced in the year 2008. The petitioner is not entitled to claim the benefit under sub-clause (i)(b) software not manufacturing prior to 2001, so as to claim the benefit of Section 10A of the Income Tax Act on the ground that they are manufacturing any software technology park. 25. The scope of above provisions would unambiguously portrays that the case of the petitioner is falling under Section 10A of sub-section (2) to sub-clause (i)(c) of the Income Tax Act, and therefore, if the petitioner is manufacturing or producing articles or things of computer software, it must be in any Special Economic Zone. The Form 56-F submitted by the petitioner would reveal that they are not mentioned about their location of functioning. However, they have furnished their address and the respondents have filed counter stating that the Unit is not located in Special Economic Zone. 26. This being the factum established, the petitioner-Company is not entitled to avail the benefit of Section 10A of the Income Tax Act and if at all any contra materials are available with the petitioner, it is for them to place it before the Assessing Authority for the purpose of availi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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