Shri Rajeev Sureshbhai Gajwani, Baroda V. The ACIT., Circle-6, Baroda

ITA 1326/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6781 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 11-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G D BALVA
• Keywords: Double taxation relief; Revised return
• Section: 10B; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI T K SHARMA,JM & SHRI A N PAHUJA,AM ITA NO.1326/AHD/2008 (ASSESSMENT YEAR:-2003-04) SHRI RAJEEV SURESHBHAI GAJWANI, PROP. OF AMTEL EXPORTS INDIA, 704/706, CITADEL, WINDSOR PLAZA, RACE COURSE CIRCLE, BARODA V/S ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-6, BARODA PAN: ADYPG 8322 N [APPELLANT] [RESPONDENT] ASSESSEE BY :- WRITTEN SUBMISSIONS REVENUE BY:- SHRI G D BALVA, DR O R D E R A N PAHUJA: THIS APPEAL BY THE ASSESSEE AGAINST AN ORDER DATE D 17-01-2008 OF THE LD. CIT(APPEALS)-XXI, AHMEDABAD F OR THE ASSESSMENT YEAR 2003-04, RAISES THE FOLLOWING GROU NDS:- [1] THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN NOT A LLOWING DEDUCTION U/S 10A OF THE INCOME-TAX ACT. [2] YOUR APPELLANT CRAVES RIGHT TO ADD TO OR ALTER, A MEND, SUBSTITUTE, WITHDRAW OR DELETE ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 2 NONE APPEARED BEFORE US ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF THIS APPEAL. HOWEVER, WRITTEN SUBMISS IONS HAVE BEEN FILED. WE, THEREFORE, DECIDED TO DISPOSE OF THE APP EAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF RS.5,27,802/-FILED ON 25-11-2003 BY THE ASSESSEE, EXPORTING SOFTWARE, AFTER BEING PROCESSED ON 13.3.2 004 U/S 143(1) OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO A S THE ACT], WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ON 25-10-2004.DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, ITA N O.1326/AHD/2008 2 THE ASSESSING OFFICER[AO IN SHORT] NOTICED THAT THE ASSESSEE HAD SHOWN NET PROFIT OF RS.10,55,605/-.EVEN THOUGH THE ASSESSEE WAS A NON-RESIDENT IN THE YEAR UNDER CONSIDERATION, HE CLAIMED DEDUCTION OF RS.5,27,803/- U/S 80HHE OF THE ACT. SI NCE THE PROVISIONS OF SECTION 80HHE OF THE ACT PROVIDED FOR DEDUCTION TO AN ASSESSEE BEING AN INDIAN COMPANY OR A PERSON (OTHER THAN A COMPANY) RESIDENT IN INDIA, ENGAGED IN THE BUSINESS OF I) EXPORT OUT OF INDIA OF COMPUTER SOFTWARE OR ITS TRANSMISSION F ROM INDIA TO A PLACE OUTSIDE INDIA BY ANY MEANS OR (II) PROVIDING TECHNICAL SERVICES OUTSIDE INDIA IN CONNECTION WITH DEVELOPMENT OR PRO DUCTION OF COMPUTER SOFTWARE, THE AO SHOWCAUSED THE ASSESSEE VIDE LETTER DATED 13-02-2006 AS TO WHY DEDUCTION U/S 80HHE AS C LAIMED BY THE ASSESSEE BE NOT DISALLOWED. IN RESPONSE, THE ASSESS EE SUBMITTED THAT SINCE THE ASSESSEE WAS A RESIDENT OF USA, THE PROVI SIONS OF DTAA BETWEEN INDIA AND USA WERE APPLICABLE IN HIS CASE. WHI LE REFERRING TO PROVISIONS OF SECTION 90(2) OF THE ACT AND PARA 1 & 2 O F ARTICLE 26 OF THE DTAA , THE ASSESSEE ARGUED THAT THE DENIAL OF DEDUCTION TO NON -RESIDENTS WOULD TANTAMOUNT TO MORE BURDENSOME TAXATION OF NON-RESIDE NT AS COMPARED TO THE RESIDENTS ENGAGED IN THE SAME BUSINESS. ACCORDINGLY, IT WAS PLEADED THAT THE PROVISIONS OF SECTION 80HHE, TO THE EXTENT IT RESTRICTED THE RIGHT OF NON-RESIDENT, SHALL NOT BE APPLICABLE IN VIEW OF OVERRIDING CHARACTER OF SECTION 90 OF THE ACT. CONSIDERING ARTICLE 26 READ WITH SECTION 90 OF THE ACT A S MORE BENEFICIAL TO THE ASSESSEE, HE CLAIMED DEDUCTION U/S 80HHE OF THE ACT. HOWEV ER, THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE ON THE GROUND THAT T HE DEDUCTION U/S 80HHE OF THE ACT WAS AVAILABLE ONLY TO AN INDIAN COMP ANY OR TO A PERSON OTHER THAN A COMPANY, IF HE WAS RESIDENT IN INDIA WHILE THE RE WAS NO SUCH DISCRIMINATION SO FAR AS THE ALLOWABILITY OF DEDUCTION U /S 80HHE BETWEEN AN INDIAN CITIZEN AND A US CITIZEN . ACCORDINGLY, THE AO D ENIED DEDUCTION U/S 80HHE OF THE ACT. 4. ON APPEAL, THE LEARNED CIT(A)-VI, BARODA, VIDE H IS ORDER DATED 31-07-2006 UPHELD THE DISALLOWANCE OF DEDUCTION U /S 80HHE OF THE ACT WITH THE DIRECTIONS TO GRANT AN OPPORTUNITY TO THE ASSESSEE TO ITA N O.1326/AHD/2008 3 FURNISH REQUISITE AUDIT REPORT FOR CLAIMING DEDUCTI ON U/S 10B OF THE ACT AND IN CASE ALL THE CONDITIONS U/S 10B WERE SAT ISFIED, THE CASE OF THE ASSESSEE FOR DEDUCTION U/S 10B MAY BE CONSIDERE D. THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(A) READS AS UND ER:- '6.1. I HAVE CONSIDERED THE ARGUMENTS OF THE APPELLAN T. THE APPELLANT IS A 100% EOU REGISTERED WITH STPI, GANDHINAGAR AND IS ENG AGED IN THE EXPORT OF SOFTWARE. SECTION 10B DEALS WITH DEDUCTION O F PROFITS AND GAINS IN RESPECT OF NEWLY ESTABLISHED 100% EOU, PROVIDED; CERTAIN CO NDITIONS ARE SATISFIED. THE SECTION 10B WAS IN THE STATUTE BOOK SINCE 19 88 AND WAS SUBSEQUENTLY AMENDED BY FINANCE ACT, 1993, FINANCE ACT, 1 999, FINANCE ACT, 2000 & FINANCE AD, 2002. IN MY CONSIDERED OPINION, SECTION 10B DEALS WITH DEDUCTION IN RESPECT OF 100% EOU ENGAGED IN COMPUTE EXPORTS WHEREAS SECTION 80HHE IS THE GENERAL PROVISION DEALING WITH DEDUCTION IN RESPECT OF CERTAIN INCOMES IN RESPECT OF EXPORT OF COMPUTE R SOFTWARE. IT IS A SETTLED LAW THAT SPECIAL PROVISIONS DEROGATE FROM GENERAL PROVISION, AND THEREFORE, APPELLANT'S CASE COULD BE VALIDLY CONSIDERED U /S. 10B IN CASE ALL THE CONDITIONS AND REQUIREMENTS ARE SATISFIED. THE ASSE SSING OFFICER, IS THEREFORE, DIRECTED TO GRANT AN OPPORTUNITY TO THE A PPELLANT TO FAMISH REQUISITE AUDIT REPORT FOR CLAIMING DEDUCTION U/S. 10B AND IN CASE ALL THE CONDITIONS U/S. 10B ARE SATISFIED, THE CASE OF THE APPELLA NT FOR DEDUCTION U/S 10B MAY BE CONSIDERED. 5. IN TERMS OF THE AFORESAID DIRECTIONS OF THE LD. CIT(A) , THE AO VIDE LETTER DATED 12-02-2007 ASKED THE ASSESSEE TO JUSTIFY HIS CLAIM. THE ASSESSEE IN HIS SUBMISSIONS DATED 20-02-2007 SU BMITTED AUDIT REPORT IN FORM NO.56G. AFTER CONSIDERING THE SUBMIS SIONS OF THE ASSESSEE, THE AO REJECTED THE CLAIM OF THE ASSESSEE AS UNDER:- 1. AS PER SECTION 10B(5) THE DEDUCTION SHALL NOT BE ADM ISSIBLE FOR ANY ASSESSMENT YEAR BEGINNING ON OR AFTER THE 1ST DAY OF APR IL, 2001 UNLESS THE ASSESSEE FURNISHES IN THE PRESCRIBED FORM ALONG WITH T HE RETURN OF INCOME THE REPORT OF AN ACCOUNTANT ........ IN CASE OF THE ASSESSEE, IT IS CLEAR THAT IT HAS FAILED TO FURNISH THE REQUIRED REPORT OF THE ACCOUNTANT IN FORM NO.56G ALONG WITH TH E RETURN OF INCOME. ACCORDINGLY, THE DEDUCTION U/S 10B(1) SHALL NOT BE ADMI SSIBLE IN HIS CASE. 2. THE ASSESSEE HAS FAILED TO ESTABLISH THAT HE SATISFIES ALL THE CONDITIONS OF SECTION 10B(2) ON THE BASIS OF THE DOCUMENT ARY EVIDENCES. THE CONDITION OF SECTION 10B(2) HAVE TO BE SATISFIED I N ORDER TO CLAIM DEDUCTION U/S. 10B. HAVING REGARD TO THIS ASPECT, IT IS H ELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 10B. ITA N O.1326/AHD/2008 4 3. THE DEDUCTION U/S 10B IS ALLOWED TO A 100% EXPORT O RIENTED UNDERTAKING SUBJECT TO FULFILLMENT OF ALL THE CONDITI ONS PRESCRIBED THEREIN. THE MEANING OF 100% EXPORT ORIENTED UNDERTAKING HAS BEEN DEFINED BY EXPLANATION TO SECTION 10B WHEREIN IT HAS BEEN DEFINE D AS AN UNDERTAKING WHICH HAS BEEN APPROVED AS A 100% EXPORT ORIENTED UNDE RTAKING BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERN MENT IN EXERCISE OF POWERS CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOP MENT & REGULATION) ACT, 1951 AND THE RULES MADE UNDER THAT ACT. IN THIS CONNECTION, THE ASSESSEE HAS NOT ESTABLISHED THAT IT IS A 1 00% EXPORT ORIENTED UNDERTAKING IN ACCORDANCE WITH THE ABOVE DISCUSSIO N. IT HAS SUBMITTED A COPY OF THE LETTER OF PERMISSION DAT ED 24-11-2000 GRANTED TO M/S AMTEL EXPORTS INDIA BY THE SOFTWARE TE CHNOLOGY PARK, GANDHINAGAR, WHICH WAS VALID FOR 3 YEARS FROM THE DATE OF ITS ISSUE. THIS LETTER OF PERMISSION WAS ISSUED TO M/S. AMTEL EXPORTS INDI A SUBJECT TO THE CONDITIONS STIPULATED IN ANNEXURE IN ADDITION TO THE CO NDITIONS MENTIONED IN THE LETTER OF PERMISSION. THE ASSESSEE FAILED TO SUBMIT A COPY OF THE ANNEXURE. IN THIS CONNECTION, IT IS VERY IMPORTANT TO HI GHLIGHT THAT THE ASSESSEE FAILED TO ESTABLISH THAT IT SATISFIES ALL THE CONDI TIONS AS MENTIONED IN THE LETTER OF PERMISSION AND THE SAID ANNEXURE TO I T ON THE BASIS OF DOCUMENTARY EVIDENCES. HAVING REGARD O THE ABOVE DISCUSSION AND PROVISIONS OF SECT ION 10B IT IS HELD THAT HE ASSESSEE HAS NOT ESTABLISHED THAT HE IS A 100% EXPORT ORIENTED UNDERTAKING WITHIN THE MEANING OF THE PROVI SIONS OF SECTION 10B OF I T ACT. 4. IT IS NOTICED FROM THE FORM NO.56G FILED BY THE ASS ESSEE ON 27-02- 2007 THAT IT IS INCOMPLETE / DEFECTIVE VIS-A-VIS THE ITE M NUMBERS 8 & 16 OF THE FORM. ALSO THE DATE OF COMMENCEMENT OF MANUFACTURE OR PRODUCTION, DATE OF REGISTRATION AS 100% EOU IS NOT SUBSTANTIATED B Y ANY EVIDENCE. IN THE LIGHT OF ABOVE DISCUSSION, IT IS CLEAR THAT THE ASSE SSEE HAS FAILED TO PROVE THAT HE SATISFIES ALL THE CONDITIONS OF 10B. ACCO RDINGLY, THE DEDUCTION U/S. 10B CANNOT BE ALLOWED TO HIM BECAUSE HE IS NOT EL IGIBLE. THEREFORE, THE ASSESSEES CLAIM OF DEDUCTION U/S 10B AS DISCUSSED ABOVE, IS REJECTED. 6. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE LEARNED CIT(A)-XXI, AHMEDABAD. THE LEARNED CIT(A) U PHELD THE FINDINGS OF THE AO IN THE FOLLOWING TERMS:- 6. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AP PELLANT HAS COME OUT WITH A NEW CLAIM THAT THE DEDUCTION SHOULD BE ALL OWED U/S.10A INSTEAD OF SECTION 10B AS CLAIMED BEFORE THE CIT(A) AND THE A.O . IT IS SUBMITTED THAT DIRECTION GIVEN IS APPLICABLE FOR SECTION 10A AS WELL BECAUSE AS GOOD AS DIRECTION WERE APPLICABLE TO SECTION 10B AS BOTH THE SECTIONS ARE ITA N O.1326/AHD/2008 5 BENEFITING SECTION AND ARE ENACTED ON THE SAME FOOTING AND ARE TO BE INTERPRETED LIBERALLY. IT IS FURTHER REQUESTED THAT IF APPELLANT IS NOT GRANTED DEDUCTION U/S.10B ON THE GROUND THAT IT IS NOT 100% E OU THEN IT SHOULD BE GRANTED DEDUCTION U/S.10A AS THE APPELLANT ENJOYED TH E STATUS OF STP. FURTHER, IF THE VIEW IS TAKEN THAT THE APPELLANT IS EL IGIBLE FOR DEDUCTION U/S.10A THEN IT IS MOST RESPECTFULLY URGED TO PROVIDE FRE SH OPPORTUNITY TO FILE FORM NO.56F TO CLAIM DEDUCTION U/S 10A. 7. I HAVE CAREFULLY GONE THROUGH THE ORDER OF THE A.O AND SUBMISSION MADE BY THE COUNSEL OF THE APPELLANT AND I FIND THAT THE STAND OF THE APPELLANT IS NOT CONSISTENT. BEFORE THE CIT(A) AGAINST ORDER U/S.143(3) OF THE A.O, HE PLEADED THAT HE IS ELIGIBLE FOR DEDUCTION U/S. 10B AND WHEN THE REQUISITE DIRECTION WAS GIVEN BY THE CIT(A) TO THE A.O T O EXAMINE THE CLAIM OF THE APPELLANT U/S. 10B AND WHEN THE SAME WAS NOT FOUND ELIGIBLE HE COMES OUT WITH A NEW CLAIM THAT IT SHOULD BE GRANTED U/ S.10A AND SHOULD BE PERMITTED TO FILE FORM NO.56F. THE WHOLE SITUATIO N LOOKS QUITE RIDICULOUS BECAUSE THE APPELLANT IS NOT AWARE AS TO WHICH DEDUCTION HE IS ENTITLED TO WHETHER U/S.10A OR U/S. 10B. WHEN THE CLAIM U/S.10B WA S NOT ENTERTAINED BY THE A.O HE HAS COME OUT WITH NEW THEORY OF CLAIM OF SE CTION U/S 10A. THIS IS NOT PERMISSIBLE. THE HON'BLE ITAT AHMEDABAD BEN CH 'C' ALMOST IN A SIMILAR SET OF FACTS IN THE CASE OF INFENIUM COMMUNICAT ION PVT. LTD. V/S. ITO WD.4(3), VIDE ITA NO. 3489-3490/AHD/2004 A.Y.20 00-01 & 2001-02, THE BRIEF FACTS OF THE CASE DECIDED BY THE HON'BLE TRIB UNAL ARE THAT IN BOTH THESE YEARS ASSESSEE FILED THE RETURN OF INCOME DECLARING NI L INCOME DUE TO CLAIM OF DEDUCTION U/S 80HHE. SUBSEQUENTLY, SURVEY PROCEED INGS U/S.133A WERE CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE COMPANY, DURING THE COURSE OF WHICH SOME EVIDENCE WAS FOUND SUGGESTING THAT THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION U/S 80HHE OF THE ACT. CONSEQUENT TO THE SURVEY OPERATIONS THE ASSESSEE F ILED THE REVISED RETURN IN WHICH THE CLAIM U/S.80HHE WAS WITHDRAWN AND THE ASSESSMENTS WERE COMPLETED AFTER ACCEPTING THE REVISED RETURN FILED BY THE ASSESSEE. AFTER THE ASSESSMENTS WERE COMPLETED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) REGARDING ITS CLAIM OF DE DUCTION U/S.80HHE. CIT(A) HELD THAT APPELLANT IS NOT ENTITLED TO FURNISH NEW EVIDENCE NOW MORE PARTICULARLY, WITH REFERENCE TO THE CLAIM WHICH WAS NEVER MADE BEFORE THE ASSESSING OFFICER. REQUISITE CONDITIONS LAID DOWN UNDER RU LE 46(1)(A) & 46(1)(B) ARE NOT SATISFIED IN THE INSTANT CASE AND SUCH EVIDENCE IS THEREFORE NOT ADMISSIBLE. IN VIEW OF ABOVE FACTS OF THE CASE, THE HO N'BLE TRIBUNAL OBSERVED THAT THE ASSESSEE FIRST MADE A CLAIM, THEN WITHDR EW THE CLAIM AND REAFFIRMED ITS STAND BY PAYING TAXES. THE ITAT ACCOR DINGLY DISMISSED THE APPEAL OF THE APPELLANT. 8. IN THE INSTANT CASE, THE APPELLANT FIRST MADE ITS CL AIM U/S.80HHE, THEREAFTER, BEFORE THE CIT(A) THE APPELLANT PLEADED THAT HE IS ELIGIBLE FOR DEDUCTION U/S.10B AND ACCORDINGLY THE CIT(A) DIRECTED THE A.O TO EXAMINE THE CLAIM OF THE APPELLANT U/S 10B. TO PUT UP ITS CLAIM BEFORE THE A.O, THE APPELLANT ALSO GOT ITS AUDITED REPORT IN FORM NO.56G. THE A.O EXAMINED THE CLAIM OF THE APPELLANT, IN VIEW OF THE DIRECTION I SSUED BY THE CIT(A) AND ITA N O.1326/AHD/2008 6 FOUND THE CLAIM AS INADMISSIBLE. NOW, THE APPELLANT IS R EVISING ITS CLAIM U/S 10A AND SEEKING PERMISSION TO FILE FORM NO.56F. FROM THE ABOVE FACTS, IT BECOMES CLEAR THAT APPELLANT I S NOT CLEAR AS TO UNDER WHICH SECTION HE IS ELIGIBLE TO CLAIM DEDUCTION WHE THER U/S.80HHE OR 10A OR 10B. IF CLAIM U/S 80HHE IS REJECTED HE IS PUTTIN G UP HIS CLAIM FOR 10B, IF THAT IS ALSO REJECTED HE IS PUTTING UP HIS CLAIM U/S.10A. TO MAKE THE CLAIM, THE APPELLANT IS REQUIRED TO FILE CERTAIN DETAI LS WHILE FILING ITS RETURN DULY AUDITED BY THE AUDITOR, WHICH HE HAS FAILED. THE C IT(A) WAS QUITE LIBERAL IN PERMITTING HIM TO PUT UP HIS CLAIM U/S .10B AND ALLOWED HIM TO FILE FORM NO.56G WHICH WAS FOUND DEFECTIVE AND INCOMPLETE AN D THE CLAIM OF THE APPELLANT WAS FOUND TO BE NOT WITHIN THE PARAME TER OF SECTION 10B. NOW AGAIN THE APPELLANT IS REVISING ITS STAND AND PUT FO RWARD HIS CLAIM U/S.10A WHICH IS NOT PERMITTED. I, THEREFORE, DO NOT FIND ANY FORCE IN THE CLAIM OF THE APPELLANT U/S.10A AND ACCORDINGLY, THE APPE AL IS DISMISSED. 7. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED AR ON B EHALF OF THE ASSESSEE IN HIS WRITTEN SUBMISSIONS SUBMITTED THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 80HHE HAVING BEEN ALLOWED B Y THE SPECIAL BENCH OF ITAT, AHMEDABAD VIDE THEIR ORDER DATED 4-3-2011 REPORTED IN 137 TTJ 1 (AHD), THE PRESENT APPEAL BECOMES ACADEMIC IN NATURE. THE LEAR NED DR, ON THE OTHER HAND, DID NOT OPPOSE THESE WRITTEN SUBMISSION S OF THE LD. AR. 8. WE HAVE HEARD THE LEARNED DR ANDGONE THROUGH THE FACTS OF THE CASE AS ALSO AFORESAID DECISION OF THE SPECIAL BENCH. ADMITTEDLY, THE CLAIM FOR DEDUCTION U/S 10A OF THE ACT IN GROUND NO.1 IN THE PRESENT APPEAL HAS BECOME ACADEMIC IN NATU RE SINCE THE SPECIAL BENCH OF THE ITAT AHMEDABAD VIDE THEIR ORD ER DATED 4.3.11 IN THE CASE OF THE ASSESSEE IN ITA NOS.1807 & 1978/ AHD/2006 AND ITA NO.3111/AHD/2007 FOR THE ASSESSMENT YEARS 2002- 03, 2003-04 AND 2004-05 [REPORTED IN 137 TTJ 1 (AHD)] CONCLUDED THAT THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SECTION 80HHE ON TH E SAME FOOTING AS IT IS AVAILABLE TO A RESIDENT PERSON IN INDIA. IN VIEW TH EREOF, THE ORIGINAL CLAIM OF THE ASSSESSEE FOR DEDUCTION U/S 80HHE OF THE AC T HAVING BEEN ALLOWED, THE ALTERNATE CLAIM FOR DEDUCTION U/S 10A OF THE ACT ITA N O.1326/AHD/2008 7 BECOMES ACADEMIC AND THEREFORE, DOES NOT SURVIVE F OR ADJUDICATION. CONSEQUENTLY, GROUND NO.1 IN THE APPEAL IS DISMISSE D. 9. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF THE RESIDUARY GROUND NO.2 IN THE APPEAL, ACCORDINGL Y, THIS GROUND IS DISMISSED. 10 IN THE RESULT, APPEAL IS DISMISSED ORDER PRONOUNCED IN THE COURT TODAY ON 3-05-2011 SD/- SD/- ( T K SHARMA ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 3-05-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI RAJEEV SURESHBHAI GAJWANI, PROP. OF AMTEL E XPORTS INDIA, 704/706, CITADEL, WINDSOR PLAZA, RACE COURSE CIRCLE, BARODA 2. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-6, BARODA 3. CIT CONCERNED 4. CIT(A)-XXI, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD