M/s e Funds International India P. Ltd., New Delhi V. DCIT, New Delhi

CO 379/DEL/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 7360 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-12-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: STEPHEN GEORGE
• Assessee Lawyers: C S AGGARWAL
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI DELHI BENCH B : NEW DELHI DELHI BENCH B : NEW DELHI DELHI BENCH B : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER ITA NO.4713/DEL/2010 ITA NO.4713/DEL/2010 ITA NO.4713/DEL/2010 ITA NO.4713/DEL/2010 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004- -- -05 0505 05 DY.COMMISSIONER OF DY.COMMISSIONER OF DY.COMMISSIONER OF DY.COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -11(1), 11(1), 11(1), 11(1), NEW DELH NEW DELH NEW DELH NEW DELHI. I.I. I. VS. VS. VS. VS. M/S E M/S E M/S E M/S E- -- -FUNDS INTERNATIONAL INDIA FUNDS INTERNATIONAL INDIA FUNDS INTERNATIONAL INDIA FUNDS INTERNATIONAL INDIA PVT.LTD., PVT.LTD., PVT.LTD., PVT.LTD., F FF F- -- -40, NEW DELHI SOUTH EXTN.PART 40, NEW DELHI SOUTH EXTN.PART 40, NEW DELHI SOUTH EXTN.PART 40, NEW DELHI SOUTH EXTN.PART- -- -I, I,I, I, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN NO.AAACH2815H. PAN NO.AAACH2815H. PAN NO.AAACH2815H. PAN NO.AAACH2815H. (APPELLANT) (RESPONDENT) CROSS CROSS CROSS CROSS- -- -OBJECTION NO.379/DEL/2010 OBJECTION NO.379/DEL/2010 OBJECTION NO.379/DEL/2010 OBJECTION NO.379/DEL/2010 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004 ASSESSMENT YEAR : 2004- -- -05 0505 05 M/S E M/S E M/S E M/S E- -- -FUNDS INTERNATIONAL FUNDS INTERNATIONAL FUNDS INTERNATIONAL FUNDS INTERNATIONAL INDIA PVT.LT INDIA PVT.LT INDIA PVT.LT INDIA PVT.LTD., D.,D., D., (NOW KNOWN AS FIS GLOBAL (NOW KNOWN AS FIS GLOBAL (NOW KNOWN AS FIS GLOBAL (NOW KNOWN AS FIS GLOBAL BUSINESS SOLUTIONS INDIA BUSINESS SOLUTIONS INDIA BUSINESS SOLUTIONS INDIA BUSINESS SOLUTIONS INDIA PRIVATE LIMITED), PRIVATE LIMITED), PRIVATE LIMITED), PRIVATE LIMITED), 226, UDYOG VIHAR, 226, UDYOG VIHAR, 226, UDYOG VIHAR, 226, UDYOG VIHAR, PHASE PHASE PHASE PHASE- -- -1, 1,1, 1, GURGAON GURGAON GURGAON GURGAON 122 016. 122 016. 122 016. 122 016. PAN NO.AAACH2815H. PAN NO.AAACH2815H. PAN NO.AAACH2815H. PAN NO.AAACH2815H. VS. VS. VS. VS. DY.COMMISSIONER OF DY.COMMISSIONER OF DY.COMMISSIONER OF DY.COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -11(1), 11(1), 11(1), 11(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI STEPHEN GEORGE, CIT-DR. ASSESSEE BY : SHRI C.S.AGGARWAL, SR.ADVOCATE. ORDER ORDER ORDER ORDER PER I.P.BANSAL, JM : PER I.P.BANSAL, JM : PER I.P.BANSAL, JM : PER I.P.BANSAL, JM : APPEAL IS FILED BY THE REVENUE AND CROSS-OBJECTION IS FILED BY THE ASSESSEE. THEY ARE DIRECTED AGAINST ORDER OF CIT(A ) DATED 31.8.2010 FOR AY 2004-05. 2. GROUND OF APPEAL OF THE REVENUE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S 10A AMOUNTING TO RS.9,30,00,275/-. ITA-4713/DEL/2010 & CO-379/DEL/2010 2 3. GROUND OF APPEAL OF CROSS-OBJECTION OF THE ASSES SEE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-XIII, NEW DELH I, WHILE PASSING ORDER UNDER SECTION 250 OF THE INCOME TAX ACT 1961 (ACT), OUGHT TO HAVE FURTHER HELD THAT T HE FINDING OF THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -11(1), NEW DELHI (HEREINAFTER REFERRED TO AS LEARNED ASSE SSING OFFICER) THAT THE APPELLANT HAD CLAIMED DEDUCTION UNDER SECTION 80HHE OF THE ACT IN ANY OF THE PRECEDING YE AR, IS FACTUALLY INCORRECT AS NO SUCH CLAIM HAS ACTUALLY B EEN MADE OR EVEN ALLOWED BY THE LEARNED ASSESSING OFFIC ER WHILE COMPUTING THE TAXABLE INCOME OF THE APPELLANT . 4. THE IMPUGNED ASSESSMENT IS AN ORDER DATED 27.11. 2009 PASSED BY THE AO U/S 143(3) READ WITH SECTION 254 OF THE I NCOME TAX ACT, 1961 (ACT). THE ITAT VIDE ITS ORDER IN ITA NO.2647 /DEL/2007 DATED 29.12.2008 HAD SET ASIDE THE ORDER TO THE FILE OF T HE AO REGARDING DISALLOWANCE OF CLAIM MADE BY THE ASSESSEE U/S 10A OF THE ACT. THE ASSESSEE WAS REQUIRED TO EXPLAIN REGARDING THE ALLO WABILITY OF CLAIM U/S 10A AND AO FOUND THAT THE REPLY OF THE ASSESSEE IN THIS REGARD WAS REPETITION OF WHAT WAS SUBMITTED BY THE ASSESSEE IN ITS EARLIER LETTERS AND HE DID NOT ACCEPT THE CLAIM OF THE ASSESSEE U/S 10A. THE AO OBSERVED THAT FROM PERUSAL OF THE ABOVE ASSESSMENT RECORD FOR AY 2000-01, THE ASSESSEE COMPANY IN RESPECT OF SSC, GU RGAON UNIT HAD CLAIMED DEDUCTION U/S 80HHE WHEREAS IN AY 2001-02, IT CLAIMED DEDUCTION U/S 10A FOR THE VERY FIRST TIME AND SUBSE QUENTLY IN AY 2002- 03 AND 2003-04. THE AO REFERRED TO THE EARLIER ASS ESSMENT ORDER PASSED IN RESPECT OF AY 2001-02 & 2002-03 WHEREIN D EDUCTION U/S 10A REGARDING SSC, GURGAON UNIT WAS DISALLOWED ON THE B ASIS OF WHICH THE DEDUCTION FOR AY 2001-02 AND 2002-03 U/S 10A TO SSC UNIT WAS DISALLOWED FOR AY 2003-04. THE ASSESSEE VIDE ITS S UBMISSIONS DATED 15.11.2006 SUBMITTED THAT FOR AY 1999-2000, SSC HAD INCURRED LOSSES ITA-4713/DEL/2010 & CO-379/DEL/2010 3 WHICH WERE CARRIED FORWARD. FOR AY 2000-01, THOUGH THE ASSESSEE HAD FULFILLED ALL THE CONDITIONS FOR AVAILING DEDUCTION U/S 80HHE BUT NO DEDUCTION WAS CLAIMED U/S 80HHE SINCE ENTIRE INCOME OF THE SSC WAS SET OFF AGAINST BROUGHT FORWARD LOSSES OF PRIOR YEA RS. IT WAS SUBMITTED THAT NO REPORT OF A CHARTERED ACCOUNTANT WAS FURNIS HED WHICH IS MANDATORY REQUIREMENT TO AVAIL DEDUCTION U/S 80HHE. IT IS ONLY FOR COMPUTING MINIMUM ALTERNATIVE TAX THE ASSESSEE HAD REDUCED THE AMOUNT TO PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHE IN ACCORDANCE WITH REQUIREMENT U/S 115JA(2)(IX). IT WAS SUBMITTED THA T SUCH REDUCTION DOES NOT AMOUNT TO CLAIMING DEDUCTION U/S 80HHE. I N RESPECT OF AY 2001-02, IT WAS SUBMITTED THAT ASSESSEE HAD CLAIMED DEDUCTION U/S 10A ON ACCOUNT OF AMENDMENT IN THE DEFINITION OF CO MPUTER SOFTWARE W.E.F. AY 2001-02 AND SINCE ALL THE CONDITIONS WERE FULFILLED, THE ASSESSEE STARTED CLAIMING DEDUCTION U/S 10A FOR THE PROFITS ARISING TO SSC FOR AY 2001-02 AND FOR BALANCE UNEXPIRED PERIOD OF EIGHT YEARS. DURING THE ASSESSMENT PROCEEDINGS, WITHOUT PREJUDIC E TO ITS CLAIM U/S 10A, THE ASSESSEE MADE A CLAIM FOR DEDUCTION U/S 80 HHE IN THE EVENT IF AO PROPOSED TO DENY DEDUCTION U/S 10A. HOWEVER, AO DID NOT ACCEPT SUCH SUBMISSION OF THE ASSESSEE AND HE PROCEEDED TO MAKE THE DISALLOWANCE OF THE DEDUCTION AGAIN AND AS A RESULT , AN AMOUNT OF ` 9,30,00,275/- WAS ADDED TO THE INCOME OF THE ASSESS EE ON ACCOUNT OF DISALLOWANCE U/S 10A. LEARNED CIT(A) HAS ALLOWED T HE CLAIM OF THE ASSESSEE U/S 10A ON THE BASIS OF DECISION OF ITAT I N THE CASE OF ASSESSEE VIDE ORDER DATED 27.11.2009 IN ITA NO.2696 /DEL/2005 IN RESPECT OF AY 2001-02. IT WAS HELD BY THE ITAT THA T PROFITS AND GAINS ARISING TO SSC UNIT WERE ELIGIBLE FOR DEDUCTION U/S 10A. LEARNED CIT(A) HAS ALSO NOTED THAT FOR AY 2004-05 ALSO, SIMILAR CL AIM OF THE ASSESSEE HAS BEEN ACCEPTED BY RELYING ON THE ORDER FOR AY 20 01-02. LEARNED CIT(A) ALSO FOUND THAT THE FACTS OF THE PRESENT YEA R ARE IDENTICAL AS COMPARED TO THE FACTS OF AY 2001-02 & 2004-05 AND N O FRESH CONTENTION OR ARGUMENT HAS BEEN BROUGHT ON RECORD B Y THE AO, THEREFORE, HE HAS DELETED THE ADDITION MADE ON ACCO UNT OF ITA-4713/DEL/2010 & CO-379/DEL/2010 4 DISALLOWANCE OF DEDUCTION U/S 10A. DEPARTMENT IS A GGRIEVED, HENCE IN APPEAL. 5. SO FAR AS IT RELATES TO DEPARTMENTAL APPEAL, LEA RNED DR RELIED UPON THE ORDER OF THE AO. AS AGAINST THAT, IT WAS SUBMITTED BY THE LEARNED SENIOR COUNSEL THAT ISSUE HAS RIGHTLY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE LEARNED CIT(A) AS THE ISSUE IS COVERED BY THE EARLIER ORDERS OF THE TRIBUNAL WHEREIN ASSESSEE HAS BEEN HELD ELIGIBLE FOR DEDUCTION U/S 10A. THEREFORE, HE SUBMITTED THA T TO THE EXTENT THE ISSUE RELATES TO ALLOWABILITY OR OTHERWISE OF DEDUC TION U/S 10A, LEARNED CIT(A) HAS RIGHTLY DECIDED THE ISSUE IN FAVOUR OF T HE ASSESSEE. 6. SO FAR AS IT RELATES TO ISSUE RAISED BY THE ASSE SSEE IN THE CROSS- OBJECTIONS, LEARNED SENIOR COUNSEL SUBMITTED THAT I T HAS BEEN CATEGORICALLY STATED BEFORE THE AO THAT DEDUCTION U /S 80HHE WAS NEVER CLAIMED BY THE ASSESSEE. IT WAS ONLY AN ALTERNATIV E CLAIM PUT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE EVENTUA LITY OF DISALLOWANCE OF DEDUCTION U/S 10A. THE ISSUE THAT 80HHE DEDUCTION WAS NOT GRANTED TO THE ASSESSEE WAS CANVASSED BEFOR E THE CIT(A) AND THE CIT(A) THOUGH HAS RECORDED A STATEMENT OF THE A SSESSEE REGARDING NON-CLAIM OF ALLOWANCE U/S 80HHE BUT HAS NOT GIVEN SPECIFIC FINDING ON THAT ISSUE AND THEREFORE, THE ASSESSEE HAS FILED TH E CROSS-OBJECTIONS. THUS, IT WAS SUBMITTED THAT A SPECIFIC FINDING WHAT EVER IS DEEMED APPROPRIATE SHOULD BE RECORDED. HE SUBMITTED THAT HE IS STATING AT BAR THAT DEDUCTION U/S 80HHE WAS NOT CLAIMED AND WAS NO T ALLOWED TO THE ASSESSEE IN ANY OF THE PRECEDING YEARS. 7. ON THE OTHER HAND, LEARNED DR AGAIN RELIED UPON THE ORDER OF THE AO IN THIS REGARD. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. SO FAR AS IT RELATES TO ALLOWABILITY OF ITA-4713/DEL/2010 & CO-379/DEL/2010 5 DEDUCTION U/S 10A OF THE ACT, WE FOUND THAT ASSESSE E HAS PLACED COPY OF THE TRIBUNAL ORDER DATED 27.11.2009 IN ITA NO.26 96/DEL/2005 FOR AY 2001-02 AT PAGES 202 TO 210 OF THE PAPER BOOK. IN THAT ORDER, THE TRIBUNAL HAS RECORDED A FINDING THAT ASSESSEE HAS F ULFILLED ALL THE REQUISITE CONDITIONS FOR CLAIMING DEDUCTION U/S 10A AS DISCUSSED BY THE CIT(A) AND ASSESSEE WAS HELD TO BE ENTITLED FOR DED UCTION U/S 10A BY THE TRIBUNAL VIDE ITS EARLIER ORDER, THEREFORE THE GROUND OF THE REVENUE RELATING TO 10A WAS REJECTED. THE OBSERVATIONS OF THE TRIBUNAL AS CONTAINED IN THE SAID ORDER IN PARAS 7 TO 9 ARE REP RODUCED BELOW:- 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AN D GONE THROUGH THE RECORD CAREFULLY. FROM A PERUSAL OF THE ORDER OF LD.CIT(A), WE FIND THAT THE LD.FIRST APPEL LATE AUTHORITY HAS MADE LUCID ENUNCIATION OF LAW AND FAC TS ON THE ISSUE. THE FINDING OF LD.FIRST APPELLATE AUTHO RITY IS WORTH TO NOTE:- 2.3.2 THE PROVISIONS OF SECTION 10A(2) OF THE ACT ARE NOTED BELOW: (2) THIS SECTION APPLIES TO ANY UNDERTAKING WHICH F ULFILLS ALL THE FOLLOWING CONDITIONS, NAMELY:- (I) IT HAS BEGUN OR BEGINS TO MANUFACTURE OR PRODUC E ARTICLES OR THINGS OR COMPUTER SOFTWARE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR - (A) COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL, 1981, IN ANY FREE TRADE ZONE; OR (B) COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL, 1994, IN ANY ELECTRONIC HARDWARE TECHNOLOGY PARK OR, AS THE CASE MAY BE, SOFTWARE TECHNOLOGY PARK; (C) COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL, 2001, IN ANY SPECIAL ECONOMIC ZONE; (II) IT IS NOT FORMED BY THE SPLITTING UP, OR THE RECONSTRUCTION, OF A BUSINESS ALREADY IN EXISTENCE; PROVIDED THAT THE CONDITION SHALL NOT APPLY IN RESP ECT OF ANY UNDERTAKING WHICH IS FORMED AS A RESULT OF THE RE- ESTABLISHMENT, RECONSTRUCTION OR REVIVAL BY THE ASS ESSEE OF THE BUSINESS OF ANY SUCH UNDERTAKINGS AS IS REFERRE D TO IN SECTION 33B, IN THE CIRCUMSTANCES AND WITHIN THE PE RIOD SPECIFIED IN THAT SECTION; ITA-4713/DEL/2010 & CO-379/DEL/2010 6 (III) IT IS NOT FORMED BY THE TRANSFER TO A NEW BUS INESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE. EXPLANATION --- THE PROVISIONS OF EXPLANATION 1 AN D EXPLANATION 2 TO SUB-SECTION (2) OF SECTION 80-I SH ALL APPLY FOR THE PURPOSES OF CLAUSE (III) OF THIS SUB-SECTIO N AS THEY APPLY FOR THE PURPOSES OF CLAUSE (II) OF THAT SUB-S ECTION. ON GOING THROUGH THIS SUB-SECTION, IT IS OBSERVED T HAT ONLY THE ABOVE CONDITIONS WERE REQUIRED TO BE SATISFIED. THE CASE OF THE APPELLANT COMPANY IS FALLING UNDER SUB- SECTION 2(I) AND NOT (II) AS HELD BY THE A.O. THE SSC UNIT OF THE APPELLANT COMPANY HAS NOT BEEN FORMED BY SPLITTING UP OR THE RECONSTRUCTION OF A BUSINESS ALREADY IN EXISTEN CE BUT THE SSC UNIT WAS IN EXISTENCE AND IS BEING ASSESSED FROM A.Y. 1999-00 ITSELF. IT IS ONLY THAT AT THAT TIME, THE SSC UNIT COULD NOT CLAIM THE EXEMPTION U/S 10A BECAUSE IT WA S NOT ELIGIBLE TO CLAIM THE DEDUCTION AND ONLY AFTER AMEN DMENT OF THE DEFINITION OF THE COMPUTER SOFTWARE W.E.F. 01.04.2001 THE SSC UNIT BECAME ELIGIBLE TO CLAIM TH E DEDUCTION U/S 10A OF THE ACT. 2.3.3 THE ARGUMENT OF THE ASSESSING OFFICER THAT TH E EXEMPTION HAS TO BE CLAIMED FROM THE INITIAL YEAR O F START OF MANUFACTURE OR PRODUCE ARTICLES OR THINGS OR COM PUTE SOFTWARE ITSELF AS PER SECTION 10A(1) IS AGAIN MISP LACED. IN FACT, WHEN THE SECTION WAS AMENDED BY THE FINANCE A CT, 1986 AS PER SUB-SECTION (3) OF SECTION 10A OF THE A CT, THE EXEMPTION WAS ALLOWABLE ONLY FOR ANY FIVE CONSECUTI VE ASSESSMENT YEARS FALLING WITHIN A PERIOD OF EIGHT Y EARS BEGINNING WITH THE A.Y. RELEVANT TO THE PREVIOUS YE AR IN WHICH THE UNDERTAKING BEGINS TO MANUFACTURE OR PROD UCE ARTICLES OR THINGS SPECIFIED BY THE ASSESSEE AT HIS OPTION. IT IS CLEAR FROM THE ABOVE SUB-SECTION, IT WAS NOT MUS T THAT EXEMPTION IS REQUIRED TO BE CLAIMED FROM THE FIRST YEAR OF THE UNDERTAKING BEGINNING TO MANUFACTURE OR PRODUCE ARTICLE OR THING BUT IT WAS AT THE OPTION OF THE AS SESSEE IN WHICH YEARS IT WANTED TO CLAIM THE EXEMPTION THE ON LY CONDITION BEING THAT IT SHOULD BE WITHIN EIGHT YEAR S OF STARTING OF THE MANUFACTURE OR PRODUCE ARTICLE OR T HING BY THE INDUSTRIAL UNDERTAKING AND ONCE CLAIMED SHOULD BE CLAIMED CONSECUTIVELY FOR FIVE YEARS. 2.3.4 IF FOR A MOMENT THE ARGUMENT OF THE ASSESSING OFFICER IS CONSIDERED, THEN IF IN A CASE WHICH SATI SFIES ALL THE CONDITIONS REQUIRED TO BE FULFILLED U/S 10A AND IT DID NOT CLAIM EXEMPTION U/S 10A, LET US SAY FOR TWO YEARS, DUE TO ITA-4713/DEL/2010 & CO-379/DEL/2010 7 ANY REASON AND IN THIRD YEAR IF IT WANTS TO CLAIM T HE EXEMPTION AND IT IS SATISFYING ALL THE CONDITIONS L AID DOWN U/S 10A, THE EXEMPTION CANNOT BE ACCLAIMED? NO, IT CANNOT BE SO, THE EXEMPTION HAS TO BE ALLOWED AND T HE ONLY CONDITION PRESCRIBED IS THAT AS IT IS AVAILABL E ONLY FOR TEN YEARS FROM THE YEAR IN WHICH THE INDUSTRIAL UND ERTAKING QUALIFIES AND, THUS, IT WILL BE AVAILABLE ONLY FOR EIGHT YEARS TO THE CONCERNED INDUSTRIAL UNDERTAKING. 8. LD.D.R. COULD NOT POINT OUT ANY CIRCUMSTANCE WHI CH CAN PERSUADE US TO TAKE A DIFFERENT VIEW THAN THE O NE TAKEN BY THE LD.CIT(A). THE ASSESSEE FULFILLED ALL THE REQUISITE CONDITIONS OF SECTION 10A AS DISCUSSED BY THE LD.CIT(A). THUS, TAKING INTO CONSIDERATION THE ORD ER OF ITAT EXTRACTED (SUPRA) COUPLED WITH THE FINDING OF THE L D.CIT(A), WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL A ND IT IS REJECTED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 9. LEARNED CIT(A) HAS ALREADY RECORDED A FINDING TH AT FACTS OF THE PRESENT YEAR ARE IDENTICAL TO THE FACTS OF AY 2001- 02 AND 2004-05 AND NO MATERIAL HAS BEEN BROUGHT ON RECORD TO SUGGEST T HAT SUCH FINDINGS OF THE CIT(A) ARE INCORRECT. THEREFORE, WE FIND TH AT LEARNED CIT(A) HAS RIGHTLY ACCEPTED THE CLAIM OF THE ASSESSEE U/S 10A ON THE BASIS OF EARLIER ORDERS OF THE TRIBUNAL, THEREFORE WE DECLIN E TO INTERFERE IN THE ORDER OF CIT(A) SO AS IT RELATES TO CLAIM OF DEDUCT ION U/S 10A AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. 10. NOW COMING TO THE CROSS-OBJECTION FILED BY THE ASSESSEE, IT WAS SPECIFICALLY STATED BY THE ASSESSEE BEFORE THE AO T HAT DEDUCTION U/S 80HHE WAS NOT CLAIMED/ALLOWED IN RESPECT OF ANY OF THE PRECEDING YEAR. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY TH E REVENUE TO SHOW THAT IN ANY OF THE PRECEDING ASSESSMENT YEARS, CLAI M OF DEDUCTION U/S 80HHE WAS ALLOWED TO THE ASSESSEE. IN VIEW OF THIS SITUATION, IT HAS TO BE RECORDED THAT THE ASSESSEE DID NOT CLAIM DEDUCTI ON U/S 80HHE IN RESPECT OF ANY OF THE PRECEDING YEARS. THEREFORE, ASSESSEE CANNOT BE ITA-4713/DEL/2010 & CO-379/DEL/2010 8 HELD TO BE INELIGIBLE FOR DEDUCTION U/S 10A ON THAT GROUND. THE CROSS- OBJECTION FILED BY THE ASSESSEE IS ALLOWED. 11. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMI SSED AND THE CROSS-OBJECTION FILED BY THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2010. SD/- SD/- (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 31.12.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR