ANSH Systems Private Ltd., Pune V. Deputy Commissioner of Income-tax,

ITA 185/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0552 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2015
• Assessment Year: misc
• Appeal Filed On: 29-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR PRAYAG JHA AND
• Assessee Lawyers: DR PRAYAG JHA; PRATEEK JHA SH
• Keywords: Opportunity of being heard
• Section: 143(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , A M . / ITA NO. 1 85 /PN/201 4 / ASSESSMENT YEAR : 20 1 0 - 1 1 ANSH SYSTEMS PRIVATE LIMITED, 101 & 102 - B, TANISHQ, SURVEY NO.41, KHARADI, PUNE 411014 . / APPELLANT PAN: AAGCA7731B VS. THE DY. COMMISSIONER OF INCOME TAX , CIRCLE - 1(1) , PUNE . / RESPONDENT / APPELLANT BY : DR. PRAYAG JHA AND / APPELLANT BY : DR. PRAYAG JHA AND SHRI PRATEEK JHA / RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 09 . 1 2 .2015 / DATE OF PRONOUNCEMENT: 30 .1 2 .2015 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I , PUNE , DATED 31 . 1 0 .20 1 3 RELATING TO ASSESSMENT YEAR 20 1 0 - 1 1 AGAINST ORDER PASSED UNDER SECTION 143(3) O F THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 2 THE LEARNED COMMISSIONER OF INCOME - TAX, APPEALS ERRED IN SUSTAINING THE ACTION OF ASSESSING OFFICER IN DETERMINING TOTAL INCOME OF APPELLANT AT RS.69,57,970 AGAINST RETURNED INCOME RS.NIL. THE LEARNED COMMISSIONER OF INCOME - TAX, APPEALS ERRED IN SUSTAINING THE ACTION OF ASSESSING OFFICER WHEREBY, THE ASSESSING OFFICER DISALLOWED THE APPELLANT CLAIM OF EXEMPTION U/S.10B OF I. T.ACT, 1961 AMOUNTING TO RS.69,68,017. THE LEARNED COMMISSIONER OF INCOME - TAX, APPEALS ERRED IN SUSTAINING THE ACTION OF THE ASSESSING OFFICER IN REJECTING OF ALTERNATIVE CLAIM OF EXEMPTION U/S.10A OF I. T.ACT, 1961 PREFERRED BEFORE THE ASSESSING OFFICER. YOUR APPELLANT CRAV ES LEAVE TO ADD, TO ALTER OR TO WITHDRAW ANY GROUND OR GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. THE ISSUE RAISED IN THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGAINST THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. AN ALTERNATE PLEA W AS RAISED BEFORE US TO ALLOW THE EXEMPTION UNDER SECTION 10A OF THE ACT WHICH WAS CLAIMED BEFORE THE ASSESSING OFFICER. 4. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE WA S 100% EXPORT ORIENTED UNIT (EOU) ENGAGED IN OUTSOURCING OF SOFTWARE DEV ELOPMENT I.E. IN THE ORIENTED UNIT (EOU) ENGAGED IN OUTSOURCING OF SOFTWARE DEV ELOPMENT I.E. IN THE FIELD OF DESIGNING, DEVELOPING AND MAINTAINING AND BOOK KEEPING ACCOUNTANCY. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD DECLARED TOTAL INCOME AT NIL AFTER CLAIMING THE DEDUCTION UNDER SECTION 10B OF THE ACT AT RS. 69,68,017/ - . THE ASSESSING OFFICER DENIED THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AS THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS FOR 100% EOU AS IT WAS NOT APPROVED BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT UNDER SECTION 14 OF INDUS TRIES DEVELOPMENT AND REGULATION ACT, 1951. THE ASSESSEE WAS REGISTERED WITH DIRECTORATE OF SOFTWARE TECHNOLOGY PARKS OF INDIA (STPI) . HOWEVER, THE ASSESSEE IN ORDER TO CLAIM THE DEDUCTION UNDER SECTION 10B OF THE ACT SHOULD BE 100% EOU AS SPECIFIED UNDE R EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT. IN VIEW OF THE INSTRUCTIONS OF CBDT , UNIT MUST BE APPROVED BY THE DEVELOPMENT COMMISSIONER IN CASE OF EOU SET UP IN ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 3 EXPORT PROCESSING ZONE. HOWEVER, THE ASSESSEE WAS NOT SO REGISTERED AND HENCE SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AS TO WHY THE DEDUCTION CLAIMED UNDER SECTION 10B OF THE ACT SHOULD NOT BE WITHDRAWN. THE ASSESSING OFFICER AFTER REFERRING TO THE PROVISIONS OF THE ACT, NOTED THAT THE HONBLE DELHI HIGH COURT IN CIT VS. REGENCY CREATIO NS LTD. REPORTED IN 27 TAXMANN.COM 322, DATED 17.09.2012 HAD HELD THAT 10 0% EOU IS ONLY THAT WHICH IS SO APPROVED BY THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT IN EXERCISE OF POWERS CONFERRED UNDER SECTION 14 OF IDAR ACT, 1951. THE PRE - CONDITIONS THAT GOVERN THE UNITS SET UP UNDER STPI ARE DIFFERENT FROM THOSE THAT GOVERN THE UNITS SET UP AS 100% EOU AND SO APPROVED BY THE BOARD. THE HONBLE HIGH COURT FURTHER HELD THAT SECTION 10A OF THE ACT EXTENDS THE EXEMPTION TO THE UNITS SET UP UNDER STP I SCHEME, WHICH START PRODUCTION OF GOODS DURING PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR COMMENCING ON OR AFTER 1 ST APRIL, 1994. SINCE THE UNIT OF THE ASSESSEE WAS REGISTERED UNDER STPI AND NOT HAVING APPROVAL FROM THE DEVELOPMENT COMMISSIONER AS 100% EOU, THE A SSESSEE HAVING NOT FULFILLED DEVELOPMENT COMMISSIONER AS 100% EOU, THE A SSESSEE HAVING NOT FULFILLED THE CONDITIONS SPECIFIED UNDER SECTION 10B OF THE ACT, WAS FOUND TO BE NOT ELIGIBLE FOR THE AFORESAID DEDUCTION BY THE ASSESSING OFFICER. THE ASSESSEE BEFORE THE ASSESSING OFFICER MADE AN ALTERNATE PLEA THAT IN CASE DEDUCTION UNDER SECTION 10B OF THE ACT IS NOT TO BE ALLOWED TO IT, THEN THE DEDUCTION UNDER SECTION 10A OF THE ACT SHOULD BE ALLOWED. THE ASSESSING OFFICER VIDE PARA 4.6 OBSERVED THAT THE SAME CANNOT BE ACCEPTED AS THE ASSESSEE SHOULD HAVE CLAIMED THE DEDUCTION THR OUGH FILING OF RETURN OF INCOME AND OTHER REQUIREMENTS SHOULD BE FULFILLED. THE TWO CONDITIONS TO BE FULFILLED WERE THAT THE SAID DEDUCTION SHOULD BE CLAIMED IN THE RETURN OF INCOME WHICH IS FURNISHED ON OR BEFORE DUE DATE SPECIFIED IN SECTION 139(1) OF T HE ACT AND FURTHER, THE ASSESSEE SHOULD FURNISH IN THE PRESCRIBED FORM ALONG WITH RETURN OF INCOME, THE REPORT OF AN ACCOUNTANT, AS DEFINED IN EXPLANATION BELOW SUB - SECTION (2) OF SECTION 288 ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 4 OF THE ACT, CERTIFYING THAT THE DEDUCTION HAS BEEN CORRECTLY CLA IMED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. SINCE THE ASSESSEE HAD NOT FULFILLED EITHER OF THE CONDITIONS, THE CONTENTION OF THE ASSESSEE IN THIS REGARD WAS REJECTED AND THE DEDUCTION CLAIMED UNDER SECTION 10B OF THE ACT AT RS. 69,68,017/ - WAS DISAL LOWED. 5. BEFORE THE CIT(A), SIMILAR PLEA WAS RAISED BY THE ASSESSEE THAT FIRST IT IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT AND IN ALTERNATE, THE DEDUCTION UNDER SECTION 10A OF THE ACT SHOULD BE ALLOWED TO IT. THE CIT(A) IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN CIT VS. REGENCY CREATIONS LTD. (SUPRA) , UPHELD THE ORDER OF ASSESSING OFFICER IN DENYING THE DEDUCTION UNDER SECTION 10B OF THE ACT. THE ALTERNATE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT W AS ALSO REJECTED, WHERE THE ASSESSEE HAD NOT DEMONSTRATED WITH NECESSARY EVIDENCE THAT ALL THE REQUIREMENT S FOR CLAIMING THE DEDUCTION UNDER SECTION 10A OF THE ACT WERE COMPLIED WITH BY THE CLAIMING THE DEDUCTION UNDER SECTION 10A OF THE ACT WERE COMPLIED WITH BY THE ASSESSEE. THE CIT(A) OBSERVED THAT FORM NO .56F WAS FURNISHED ONLY AFTER THE CLAIM UNDER SECTION 10B OF THE ACT WAS PROPOSED TO BE DISALLOWED BY THE ASSESSING OFFICER AND SINCE THE DEDUCTION UNDER SECTION 10A OF THE ACT WAS NOT CLAIMED IN THE RETURN OF INCOME NOR FORM NO.56 WAS ENCLOSED WITH THE RETURN OF INCOME, THE ASS ESSEE HAVING NOT FULFILLED THE CONDITIONS FOR CLAIMING DEDUCTION UNDER SECTION 10A OF T HE ACT, THE SAME WAS REJECTED. 6. THE ASSESSEE IS IN APPEAL BEFORE US ON BOTH AC COUNTS. 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE ASS ESSEE WAS 100% EOU, WHICH WAS APPROVED UNDER STPI AND AN ALTERNATE PLEA OF THE ASSESSEE FOR CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 5 ACT SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE GR EEN CARD ISSUED BY STPI, COPY OF WHICH IS PLACED AT PAGES 20 & 21 OF THE PAPER BOOK AND ALSO POINTED OUT THAT THE PUNE BENCH OF TRIBUNAL IN ITO VS. CAT LABS PVT. LTD. IN ITA NO.131/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10 , ORDER DATED 26.02.2014 HAS DE CIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN RELATION TO THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRESSED THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF PU NE BENCH OF TRIBUNAL IN CLARION TECHNOLOGIES (P.) LTD. VS. DCIT (2015) 57 TAXMANN.COM 351 (PUNE - TRIB) , WHEREIN IT HAS BEEN HELD THAT THE APPROVAL GRANTED TO 100% EOU SET UP UNDER STPI COULD NOT BE DEEMED TO BE AN APPROVAL UNDER SECTION 10B OF THE ACT. HOW EVER, THE TRIBUNAL HAD ALLOWED AN ALTERNATE PLEA OF THE ASSESSEE UNDER SECTION 10A OF THE ACT AND IT WAS HELD THAT ALTERNATE PLEA OF THE ASSESSEE UNDER SECTION 10A OF THE ACT AND IT WAS HELD THAT THE ASSESSEE SHOULD BE GRANTED AN OPPORTUNITY TO PUT FORTH ITS CLAIM FOR DEDUCTION UNDER SECTION 10A OF THE ACT. THE LEARNED DEPARTMENTAL RE PRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE IS SQUARELY AGAINST THE ASSESSEE, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN CIT VS. REGENCY CREATIONS LTD. (SUPRA) . 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECO RD. THE ISSUE ARISING BEFORE US IS TWO - FOLD AS THE EOU WHICH IS SET UP UNDER STPI SCHEME WHETHER CAN AVAIL THE DEDUCTION UNDER SECTION 10B OF THE ACT, WHICH REQUIRES AN APPROVAL TO BE TAKEN FROM THE DEVELOPMENT COMMISSIONER UNDER THE PROVISIONS OF THE ACT . ADMITTEDLY, THE ASSESSEE BEFORE US IS 100% EOU UNIT AND HAS BEEN SET UP UNDER THE STPI SCHEME AND HAS REQUISITE APPROVAL FROM ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 6 STPI . HOWEVER, FOR AVAILING DEDUCTION UNDER SECTION 10B OF THE ACT, THE ASSESSEE SHOULD BE 100% EOU SET UP AS SPECIFIED UNDER EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT, WHICH DEFINES 100% EOU AS AN UNDERTAKING SO APPROVED BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT UNDER SECTION 14 OF THE INDUSTRIES DEVELOPMENT AND REGULATION ACT, 1951. THE ASSESSEE ADMI TTEDLY IS NOT SO REGISTERED OR APPROVED BY THE DEVELOPMENT COMMISSIONER, WHICH ARE RATIFIED BY BOARD OF APPROVAL. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN CIT VS. REGENCY CREATIONS LTD. (SUPRA), WHICH HAS BEEN APPLIED BY PUNE BENC H OF TRIBUNAL IN CLARION TECHNOLOGIES (P.) LTD. VS. DCIT (SUPRA) , WE HOLD THAT THE ASSESSEE IS NOT ENTITLED TO THE SAID CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. THE RELEVANT FINDINGS OF THE TRIBUNAL VIDE PARAS 10 AND 11 READ AS UNDER: - 10. WE HAV E CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE CASE SET - UP BY THE REVENUE IS THAT THE UNDERTAKING OF THE ASSESSEE HAS NOT BEEN APPROVED BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT IN EXERCISE OF POWERS CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951, WHICH IS AN EXPRESS REQUIREMENT FOR CLAIMING DEDUCTION U/S 10B OF THE ACT BECAUSE OF THE PRESENCE OF EXPLANATION 2(IV) BELOW SECTION 10B OF THE THE ACT BECAUSE OF THE PRESENCE OF EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT. THE ASSESSEE HAS CANVASSED THAT ITS 100% EOU IS APPRO VED BY THE DIRECTOR, STPI AND THEREFORE IT SHOULD BE TAKEN AS A SUBSTANTIVE COMPLIANCE WITH THE PRESCRIPTION CONTAINED IN EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT. THERE IS NO DENYING THE FACT THAT IDENTICAL CONTROVERSY HAS BEEN CONSIDERED BY THE HO NBLE DELHI HIGH COURT IN THE CASE OF REGENCY CREATIONS LTD. (SUPRA) AND IT IS ON THE BASIS OF THE SAID JUDGEMENT, THE LOWER AUTHORITIES HAVE DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10B OF THE ACT. ADMITTEDLY, THE 100% EOU OF THE ASSESSEE DOES NOT ENJOY ANY SPECIFIC APPROVAL FROM THE AUTHORITY REFERRED TO IN EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT. IN - FACT, THE PLEA OF THE ASSESSEE THAT THE APPROVAL BY DIRECTOR, STPI BE TAKEN AS EQUIVALENT TO OBTAINING OF APPROVAL FROM THE ENTITY PRESCRI BED IN EXPLANATION 2(IV) BELOW SECTION 10B OF THE ACT HAS BEEN SPECIFICALLY NEGATED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF REGENCY CREATIONS LTD. (SUPRA). THE OTHER ASPECT RAISED BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE TO THE EFFECT THAT A CONJOINT READING OF THE EXIM POLICY/FOREIGN TRADE POLICY ENTITLES THE ASSESSEE TO THE BENEFITS OF SECTION 10B OF THE ACT, ONCE THE UNIT IS APPROVED AS PER THE EXIM POLICY. NO DOUBT, SUCH A PLEA IS NOT FOUND TO HAVE BEEN URGED BEFORE THE HONBLE DELHI HIGH COURT, SO HOWEVER, HAVING REGARD TO THE JUDICIAL DISCIPLINE, THE TRIBUNAL BEING INFERIOR TO THE HIGH COURT, CANNOT DISREGARD THE JUDGEMENT OF THE HIGH COURT IN THE MANNER SOUGHT TO BE CANVASSED BEFORE US. THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF REGENCY CREATIONS LTD. (SUPRA) IS A SOLITARY DECISION OF A HIGH COURT ON THIS ISSUE AND SQUARELY COVERS THE CONTROVERSY BEFORE US. THEREFORE, WE ARE UNABLE TO FIND ANY FAULT IN THE ACTION OF THE LOWER AUTHORITIES IN DENYING THE CLAIM OF THE AS SESSEE FOR DEDUCTION U/S 10B OF THE ACT, BASED ON THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF REGENCY CREATIONS LTD. (SUPRA). ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 7 11. BEFORE PARTING, WE MAY ALSO REFER TO THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE TECHNOVATE E SOLUTIONS P. LTD. (SUPRA) RELIED UPON BY THE ASSESSEE BEFORE US. IN THE CASE BEFORE THE HONBLE DELHI HIGH COURT, THE ISSUE RELATED TO A CLAIM OF DEDUCTION U/S 10A OF THE ACT. THE CONTROVERSY WAS AS TO WHETHER THE APPROVAL GRANTED BY THE DIRECTOR OF STP I WAS A SUFFICIENT APPROVAL SO AS TO SPECIFY THE CONDITION STIPULATED IN SECTION 10A(2)(I)(B) OF THE ACT. THE HONBLE HIGH COURT REFERRED TO THE INSTRUCTION AND COMMUNICATION OF THE CBDT AND HELD THAT THE APPROVAL GRANTED BY THE DIRECTOR OF STPI WOULD BE DEEMED VALID FOR THE PURPOSES OF COMPLIANCE WITH THE CONDITIONS STIPULATED U/S 10A(2) OF THE ACT. THE AFORESAID JUDGEMENT OF THE HONBLE DELHI HIGH COURT DEALS WITH THE PROVISIONS OF SECTION 10A OF THE ACT AND NOT WITH SECTION 10B OF THE ACT, WHICH IS THE SUBJECT - MATTER OF CONTROVERSY BEFORE US. THEREFORE, THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF TECHNOVATE E SOLUTIONS P. LTD. (SUPRA) DOES NOT HELP THE ASSESSEE IN THE PRESENT CASE. THEREFORE, IN SO FAR AS THE ACTION OF THE LOWER AUTHO RITIES IN HOLDING THAT THE 100% EOU OF THE ASSESSEE WAS NOT ENTITLED FOR THE BENEFIT OF SECTION 10B OF THE ACT IS CONCERNED, THE SAME IS HEREBY AFFIRMED. 10. NOW, COMING TO THE ALTERNATE PLEA OF THE ASSESSEE IN RESPECT OF ALLOWABILITY OF DEDUCTION UNDER SECTION 10A OF THE ACT IN PLACE OF SECTION 10B OF THE ACT , SINCE THE UNDERTAKING IS APPROVED UNDER STPI. T HE SAID CLAIM WAS MADE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO RAISED BEFORE THE CIT(A). HOWEVER, BOTH THE AUTHORITIES BELOW DENIED THE SAID CLAIM OF THE ASSESSEE SINCE THE ASSESSEE HAD NOT FULFILLED THE REQUIREMENTS FOR AVAILING THE DEDUCTION UNDER SECTION 10A OF THE ACT I.E. CLAIMING THE AFORESAID DEDUCTION IN THE RETURN OF INCOME FILED FOR THE CAPTIONED ASS ESSMENT YEAR WITHIN TIME FRAME AND ALSO FURNISHING THE SPECIFIED AUDIT REPORT ALONG WITH RETURN OF INCOME. WE FIND THAT THE PUNE BENCH OF TRIBUNAL IN CLARION TECHNOLOGIES (P.) LTD. VS. DCIT (SUPRA) HAD CONSIDER THE ALTERNATE PLEA OF THE ASSESSEE AND OBSER VED AS UNDER: - 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THE PRESENT CASE, IN THE PAST YEARS ASSESSEE HAS BEEN ALLOWED THE CLAIM OF DEDUCTION U/S 10B OF THE ACT. IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2010 - 11 ALSO ASSESSEE CLAIMED DEDUCTION U/S 10B OF THE ACT IN RELATION TO THE PROFITS DERIVED FROM ITS STPI UNIT. THIS CLAIM OF DEDUCTION CAME TO BE DENIED ON THE GROUND THAT THE APPROVAL FROM DIRECTOR, STPI WAS INSUFFICIENT AND THAT THE ASSESSEE WAS REQUIRED TO TAKE APPROVAL FROM THE BOARD APPOINTED FOR THIS PURPOSE BY THE CENTRAL GOVERNMENT, FOLLOWING THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF REGENCY CREATIONS LTD. (SUPRA). IN THE AFORESAID SITUATION, AT THE TIME OF FILING OF RET URN OF INCOME FOR THE INSTANT ASSESSMENT YEAR, ASSESSEE COULD NOT HAVE ENVISAGED THE DENIAL OF ITS CLAIM OF ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 8 DEDUCTION U/S 10B OF THE ACT, WHICH WAS BEING ALLOWED IN THE PAST. THE AFORESAID CIRCUMSTANCE CLEARLY ESTABLISHES THE BONAFIDES OF THE REASONS PREVA ILING WITH THE ASSESSEE FOR NOT HAVING MADE A CLAIM FOR DEDUCTION U/S 10A OF THE ACT IN THE RETURN OF INCOME. HAVING REGARD TO THE PECULIAR FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, IN OUR VIEW, THE STAND OF THE REVENUE THAT ASSESSEE CANNOT BE ALLOWED THE BENEFITS OF SECTION 10A OF THE ACT MERELY BECAUSE THE PRESCRIBED AUDIT REPORT IN FORM NO.56F WAS NOT FILED IN THE RETURN OF INCOME, IS QUITE ERRONEOUS. PERTINENTLY, AFTER DENIAL OF DEDUCTION U/S 10B OF THE ACT IN THE ASSESSMENT ORDER, THE EARLIEST OPP ORTUNITY FOR THE ASSESSEE TO STAKE CLAIM FOR DEDUCTION U/S 10A OF THE ACT WAS BEFORE THE CIT(A); AND, THE ASSESSEE MADE THE CLAIM BEFORE THE CIT(A) ALONG WITH THE PRESCRIBED AUDIT REPORT IN FORM NO.56F. THE HONBLE DELHI HIGH COURT IN THE CASE OF VALIANT COMMUNICATIONS (SUPRA) IN SIMILAR CIRCUMSTANCES HELD THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT IS REQUIRED TO BE EXAMINED IN ACCORDANCE WITH LAW. PERTINENTLY, EVEN IN THAT CASE ASSESSEE HAD CLAIMED DEDUCTION U/S 10B OF THE ACT IN THE RETURN OF INCOME, WHICH WAS NOT ALLOWED ULTIMATELY IN THE ABSENCE OF THE UNIT BEING APPROVED BY THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT, WHEREAS THE UNIT WAS ONLY REGISTERED WITH THE STPI. THE HONBLE DELHI HIGH COURT DIRECTED THE LOWER AUTHORITIES TO CONSIDER THE CLAIM OF DEDUCTION U/S 10A OF THE ACT IN ACCORDANCE WITH LAW. IN THE PRESENT CASE ALSO, WE FIND NO REASON TO DENY THE ASSESSEE AN OPPORTUNITY TO PUT - FORTH ITS CLAIM FOR DEDUCTION U/S 10A OF THE ACT WITH REGARD THE PROFITS OF ITS STPI UNIT , SUBJECT OF - COURSE TO THE FULFILLMENT OF THE PRESCRIBED CONDITIONS. 17. SECTION 10A OF THE ACT PROVIDES A DEDUCTION OF SUCH PROFITS AND GAINS DERIVED BY AN UNDERTAKING FROM EXPORT OF ARTICLES OR THINGS OR COMPUTER SOFTWARE MANUFACTURED OR PRODUCED BY IT . THE ASSESSEE CLAIMED THAT IT HAS UNDERTAKEN EXPORT OF COMPUTER SOFTWARE MANUFACTURED BY IT AND ITS UNIT IS REGISTERED WITH DIRECTOR, STPI. THE APPROVAL GRANTED BY DIRECTOR, STPI HAS BEEN HELD TO BE A SUFFICIENT COMPLIANCE WITH REQUIREMENTS OF SECTION 1 0A(2)(I)(B) OF THE ACT EVEN AS PER THE CBDT VIDE INSTRUCTION NO.1 OF 2006 DATED 31.03.2006. THEREFORE, PRIMA - FACIE THE 100% EOU OF THE ASSESSEE, BEING REGISTERED WITH STPI, IS PRIMA - FACIE THE 100% EOU OF THE ASSESSEE, BEING REGISTERED WITH STPI, IS ELIGIBLE TO STAKE CLAIM FOR DEDUCTION U/S 10A OF THE ACT, PROVIDED THE OTHER CO NDITIONS LAID DOWN IN SECTION 10A OF THE ACT ARE SATISFIED. THEREFORE, IN CONFORMITY WITH THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF VALIANT COMMUNICATIONS (SUPRA), WE DEEM IT FIT AND PROPER TO REMAND THE MATTER BACK TO THE FILE OF THE A SSESSING OFFICER FOR VERIFYING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT AS PER LAW. THE ASSESSING OFFICER SHALL CONSIDER THE FORM NO.56F FURNISHED BY THE ASSESSEE BEFORE THE CIT(A) AND SUCH OTHER MATERIAL AND SUBMISSIONS THAT THE ASSESSE E MAY PUT - FORTH IN ORDER TO JUSTIFY ITS CLAIM OF DEDUCTION U/S 10A OF THE ACT. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALLOW A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE ADJUDICATING ON THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 10 A OF THE ACT IN ACCORDANCE WITH LAW. THUS, ON THE ALTERNATE PLEA ASSESSEE SUCCEEDS. 11. THE ISSUE BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN CLARION TECHNOLOGIES (P.) LTD. VS. DCIT (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE D EEM IT FIT TO REM AND THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 10A OF THE ACT IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER SHALL AFFORD REASONABLE ITA NO. 1 85 /PN/20 1 4 ANSH SYSTEMS PVT. LTD. 9 OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ALTERNATE PLEA RAISED BY THE ASSESSEE IS THUS, ALLOWED. 12 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 30 TH DAY OF DECEM BER , 2015. SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH DECEM BER , 2015 . GCVSR / COPY OF THE ORDER IS FORWARDED T O : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , PUNE ; 4. / THE CIT - I , PUNE ; , , 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE