Cellworks Research India P. Ltd., V. ITO,

ITA 255/BANG/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1438 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: G LAKSHMINARASIMHAN
• Keywords: Opportunity of being heard; Wrong claim
• Section: 143(3); 10B; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI GEORGE GEORGE, K, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER ITA NOS.255 & 256(B)/2014 (ASSESSMENT YEARS : 2009-10 & 2010-11) M/S CELL WORKS RESEARCH INDIA PVT.LTD., NO.118, NEIL RAO TOWERS, ROAD 3, EPI, WHITEFIELD, BANGALORE. APPELL ANT PAN NO.AACCC8214D VS THE COMMISSIONER OF INCOME-TAX (A) & ITO-WARD-11(1), BANGALORE RESPONDENT ASSESSEE BY : SHRI G. LAKSHMINARASIMHAN, ADVOCATE REVENUE BY : DR. P.K.SRIHARI, ADDL.CIT DATE OF HEARING : 04-08-2015 DATE OF PRONOUNCEMENT : 12-08 -2015 O R D E R PER BENCH: THESE APPEALS AT THE INSTANCE OF ASSESSEE ARE DIRE CTED AGAINST TWO SEPARATE ORDERS OF THE CIT(A), BANGALORE BOTH DATED 27-11-2013. THE RELEVANT ASSESSMENT YEARS ARE 2009-10 & 2010-11. SINCE THESE APPEALS PERTAIN TO THE SAME ASSESSEE AND COMMON ISSUE IS IN VOLVED, THEY WERE HEARD TOGETHER AND DISPOSED OF BY THIS CONSOLIDATED ORDER. ITA NOS.255 & 256(BANG)2014 2 2. THE GROUNDS RAISED FOR BOTH THE ASSESSMENT YEAR S ARE IDENTICAL. THE GROUNDS RAISED READS AS FOLLOWS; 1. THE CIT(A) ERRED IN LAW AND WITH OBSESSED MIND WHO DECIDED THE APPEALS I FAVOUR OF THE DEPART MENT, DID NOT EVEN HEAR THE ADVOCATE SRI G LAKSHMINARASIM HAN, WHO APPEARED EARLIER AT MANY TIMES AND EVEN REQUEST ED TO DEFER THE APPEALS TILL THE HONBLE TRIBUNAL DECIDED THE APPEAL FOR 2008-09 ASSESSMENT YEAR. 2. THE CIT(A), THOUGH PROVIDED ON 29-10-2013, A COPY OF THE ORDER OF HONBLE ITAT AT BANGALORE FOR 2008-09 DATED 27-11-2013 DID NOT CHOOSE TO MAKE A MEANINGFU L STUDY OF THE ORDER OF THE TRIBUNAL REMITTING THE CA SE TO AO BUT WRONGLY OBSERVED AT PARA-6.15 THAT HE KEPT IN M IND DIRECTIONS OF ITAT TO THE AO. 3. THE CIT(A) SHOULD HAVE WAITED TILL THE AO DISPOSED OF THE MATTER FOR 2008-09 ON THE DIRECTIO NS OF THE ITAT. THE CIT(A), ORDER ILLEGALLY PREEMPTS ANY IN DEPENDENT DECISION FOR 2008-09 ASSESSMENT YEAR WHICH IS BAD I N LAW. 4. THE CIT(A) FAILED TO NOTE THAT THE ASSESSMENT ORDERS FOR 2009-10 AND 2010-11 ARE STRUCTURED EXACT LY ON THE REASONS CITED IN THE ASSESSMENT ORDER FOR 2008- 09 WHICH ORDER WAS REMITTED BACK TO THE AO BY HONBLE ITAT. 5. THE CIT(A) ERRED IN SUPPORTING THE IMPUGNED ORDERS BASED ON AN ERRONEOUS JUDGMENT OF ITAT(HYDER ABAD) WHICH WAS RELIED ON FOR 2008-09 ASSESSMENT WHICH OR DER WAS OVER RULED BY ITAT, HYDERABAD ITSELF. THE CIT(A ) WAS AWARE OF IT. 6. CIT(A), FAILED TO NOTE THAT A CLAIM U/S 10A OR 1 0B CANNOT BE MADE EVERY YEAR, THAT IS 2009-10 AND 2010 -11 ITA NOS.255 & 256(BANG)2014 3 ASSESSMENT NEITHER WAS HE CALLED UPON TO MAKE A FR ESH CLAIM FOR ANY OF THE 3 YEARS 2008-09 TO 2010-11. 7. A. THE CIT(A) FAILED TO CONSIDER THAT THE IMPUGNED ASSESSMENTS FOR 2009-10 AND 2010-11 WERE COMPLETED DISREGARDING THE PENDING APPEAL AGAINST T HE ITAT FOR 2008-09 ASSESSMENT. B. THE CIT(A), ALSO FAILED TO NOTE THAT THE IMPUGNE D ASSESSMENTS FOR 2009-10 AND 2010-11 WERE COMPLETED EVEN BEFORE CIT(A) DECIDED THE APPEAL FOR 2008-09 ASSESSMENT. 8. THE CIT(A) FAILED TO GIVE PROPER THOUGHT TO THE DIRECTIONS OF ITAT FOR 2008-09 AND INSTEAD HE PREEM PTED THE AO FROM IMPLEMENTING THE DIRECTIONS OF HONBLE ITAT FOR 2008-09. 9.THE CIT(A), ON DECIDING THE APPEALS FOR 2009-10 AND 2010-11 DID NOT FOLLOW VERY IMPORTANT GOVERNMEN T NOTIFICATIONS AND DID NOT GIVE VALID REASONS FOR NO T FOLLOWING THE (KARNATAKA)HIGH COURT DECISIONS. 10. HONBLE ITAT MAY PLEASE ALLOW BOTH THE APPEALS. 3. BRIEFLY THE FACTS PERTAINING TO ASSESSMENT YEAR 2009-10 READS AS FOLLOWS THE ASSESSEE IS A COMPANY. IT IS ENGAGED IN THE BU SINESS OF IT ENABLED SERVICES AND BIOLOGICAL RESEARCH SERVICES. FOR THE RELEVANT ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED ON 26-09-2009 DISCLOSING AN INCOME OF RS.2,83,063/- AFTER CLAIMING DEDUCTION U/S 10B OF THE IT ACT, ITA NOS.255 & 256(BANG)2014 4 AMOUNTING TO RS.75,01,349/-. THE ASSESSMENT WAS TA KEN UP FOR SCRUTINY BY ISSUANCE OF NOTICE U/S 143(2) AND SCRUTINY ASSES SMENT WAS COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DATED 16-12-2011. IN THE ASSESSMENT COMPLETED U/S 143(3) THE CLAIM OF DEDUCTION U/S 10B OF THE ACT WAS DENIED. THE AO NOTED THAT THE ASSESSEE COMPANY BEI NG AN 100% EXPORT ORIENTED UNIT (EOU) CLAIMED DEDUCTION U/S10B OF THE ACT IN RESPECT OF EXPORT OF SOFTWARE AND APPROVED BY THE STPI SCHEME. ACCORDING TO THE AO, THE APPROVAL UNDER THE STPI SCHEME IS NOT SUFFICIEN T TO CLAIM DEDUCTION U/S 10B OF THE ACT. THE AO HELD A 100% EOU MEANS AN UNDERTAKING WHICH HAS BEEN APPROVED BY THE BOARD APPOINTED BY T HE CENTRAL GOVERNMENT U/S 14 OF THE INDUSTRIES (DEVELOPMENT AN D REGULATION) ACT, 1951. A 100% EOU AND STPI SCHEME CANNOT BE EQUATED WITH 100% EOU APPROVED BY THE BOARD. IT WAS CONCLUDED BY THE AO THAT THE ASSESSEE COMPANY HAD OBTAINED CERTIFICATE FROM STPI AND 100% EOU UNDER THE STPI SCHEME IS NOT ELIGIBLE FOR DEDUCTION U/S 10B OF THE ACT, 1961. 4. AGGRIEVED BY THE ASSESSMENT ORDER DENYING THE B ENEFIT OF DEDUCTION U/S 10B OF THE ACT, THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. BEFORE THE CIT(A) FOLLOW ING GROUNDS WERE TAKEN. 1. THE ASSESSMENT ORDER IS OPPOSED TO LAW. THE D ENIAL OF EXEMPTION U/S 10B IS CHALLENGED AS ILLEGAL. 2. THE AO HAS FAILED TO CONSIDER CBDT INSTRUCTION NO.1/2006 DATED 31/03/2006. ITA NOS.255 & 256(BANG)2014 5 3. EVEN ASSUMING THE APPROVAL HAS NOT BEEN OBTAINE D FROM THE BOARD, IT SHOULD NOT RESUL5T IN DENIAL OF RELIEF MANDATED U/S 10B AS THE ASSESSEE IS OTHERWISE EMINE NTLY QUALIFIED. 4. HYPERTECHNICAL GROUNDS SHOULD NOT SCUTTLE OR EF FACE THE OBJECT OF THE PROVISIONS WHICH PROVIDE INCENTIV E AND IMPETUS TO 100% EOUS. 5. AS THERE IS NO TIME TO LIMIT TO OBTAIN PROPER A PPROVAL, THE ASSESSEE HAS TAKEN STEPS TO FILE IT BEFORE CIT( A). 6. THE AO HAS FAILED TO UPHOLD THE PRINCIPLE OF NA TURAL JUSTICE BY KEEPING THE ASSESSMENT PENDING AND DIREC TING THE ASSESSEE TO OBTAIN THE REQUIRED APPROVAL. 5. THE ASSESSEE ALSO RAISED AN ADDITIONAL GROUNDS W HICH READS AS FOLLOWS. 1. THE HONBLE CIT(A) MAY PLEASE GRANT RELIEF U/ S 10A O THE IT ACT, EVEN THOUGH NOT CLAIMED BY THE ASSESS EE IN THE RETURN OF INCOME IN THE LIGHT OF THE VERY RECENT JU DGMENT OF THE BOMBAY HIGH COURT IN CIT VS SHETH DEVELOPERS PR IVATE LTD, 254 CT PAGE-127, BESIDES THE OBSERVATIONS AT ARA-37 IN THE CASE OF M/S BEBO TECHNOLOGIES PVT.LTD VS THE J CIT (ITA NO.116/CHD/2010, ITA NO.1115/CHD/2008 DATED 29.04.2011 AND THE LETTER FROM THE DIRECTOR, MINIST RY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY, DEPT. OF INFORMATION TECHNOLOGY, NEW DELHI DATED 24.02.2012 ALONG WITH THE NOTE TITLED CASE NO.A.1. 2. THE HON.CIT(A) MAY ANNUL THE ASSESSMENT AS PRAYED IN WRITTEN SUBMISSIONS DATED 26.11.2012 AND FOR THE ITA NOS.255 & 256(BANG)2014 6 DECISION FOLLOWED B Y THE INCOME TAX OFFICER WHICH HAS BEEN OVER RULED IN SUBSEQUENT DECISIONS OF ITAT. 6. THE ASSESSEE ALSO FILED ELABORATE WRITTEN SUBMI SSION BEFORE THE CIT(A) WHICH IS REPRODUCED AT PAGE-4 TO 8 OF THE IM PUGNED ORDER OF THE CIT(A). THE CIT(A) REJECTED ALL THE GROUND OF THE ASSESSEE INCLUDING THE ADDITIONAL GROUNDS RAISED. 7. THE ASSESSEE BEING AGGRIEVED IS IN APPEAL BEFOR E US. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE INCOME-TAX AUTHORITIES AND PLACED RELIANCE ON THE G ROUND RAISED IN THE MEMORANDUM OF APPEAL. THE LEARNED DR STRONGLY SUPPO RTED THE ORDER OF THE CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSING OFFICER WHILE DENYING THE BE NEFIT OF DEDUCTION U/S 10B OF THE ACT HAS ALSO REFERRED TO THE ASSESSMENT CONCLUDED IN THE IMMEDIATE PRECEDING ASSESSMENT YEAR NAMELY AY : 200 8-09, WHEREIN THE SIMILAR CLAIM OF DEDUCTION WAS ALSO DISALLOWED FOR THE SAME REASONING. ON APPEAL, THE CIT(A) DISMISSED THE ASSESSEES CASE. HOWEVER, THE TRIBUNAL FOR AY : 2008-09 RESTORED THE MATTER TO DE-NOVO CONSIDERATION TO THE FILE OF THE AO (ITA NO.217/BANG/2012 ORDER DATED 20-09-2013). S UBSEQUENT TO THE ITA NOS.255 & 256(BANG)2014 7 REMAND BY THE HONBLE TRIBUNAL FOR THE ASSESSMENT Y EAR 2008-09 THE ASSESSMENT WAS DE-NOVO DONE BY THE AO AND THE ALTERNATIVE PLEA OF THE ASSESSEE FOR DEDUCTION U/S 10A OF THE ACT WAS ALLOW ED. THE RELEVANT PORTION OF THE ASSESSMENT ORDER ALLOWING DEDUCTION U/S10A OF THE ACT, FOR THE ASSESSMENT YEAR 2008-09 SUBSEQUENT TO THE REMAN D BY THE TRIBUNAL READS AS FOLLOWS; 2. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) WHI CH WAS PARTLY ALLOWED IN FAVOUR OF THE ASSESSEE ALLOW ING RELIEF OF RS.16,38,637/-. ACCORDINGLY, ORDER GIVING EFFEC T WAS PASSED ON 01/03/2013 WITH ASSESSED INCOME OF RS.49,69,221/- AND DEMAND OF RS.13,55,369/-. 3. THE ASSESSEE FILED FURTHER APPEAL BEFORE THE HO NBLE ITAT AND THE ITAT PASSED AN ORDER DATED 20/09/2013 REMANDING BACK THE MATTER TO THE FILE OF THE AO FOR A FRESH CONSIDERATION OF THE ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. THE HONBLE ITAT HAS FURTHE R DIRECTED THE AO TO- I) THE AO IS DIRECTED TO TAKE A COMPREHENSIVE VIEW IN THE MATTER BY CONSIDERING THE CBDT CIRCULARS AND INSTRUCTIONS IN THE MATTER, PRESS RELEASES OF THE G OVT OF INDIA FOR CLARIFYING THIS ISSUE AND GUIDANCE RENDER ED BY THE ORDERS OF THE COURTS AND TRIBUNALS IN THIS REGA RD. II) TO CONSIDER THE SUBMISSIONS MADE AND THE JUDIC IAL DECISIONS CITED/RELIED ON B Y THE ASSESSEE AND TO A FFORD THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND MA KE ITA NOS.255 & 256(BANG)2014 8 SUBMISSIONS IN RESPECT OF ITS CLAIM FOR DEDUCTION U NDER SECTION 10B OF THE ACT BEFORE RENDERING A SPEAKING AND REASONED ORDER. 3. AS DIRECTED BY THE HONBLE ITAT, THE ASSESSEE WA S GIVEN ADEQUATE OPPORTUNITIES OF BEING HEARD AND TO MAKE SUBMISSIONS. THE ASSESSEES AUTHORIZED REPRESENTAT IVE APPEARED FROM TIME TO TIME AND MADE SUBMISSIONS REGARDING CLAIM OF DEDUCTION UNDER SECTION 10B. AF TER CONSIDERING THE DOCUMENTS FILED, CASES AND CIRCULAR S RELIED UPON AND DISCUSSION WITH THE AUTHORIZED REPRESENTAT IVE, THE ASSESSMENT IS COMPLETED AS UNDER; 4. CLAIM OF DEDUCTION UNDER SECTION 10B 4.1. THE ASSESSEE HAS MADE CLAIM OF DEDUCTION UNDER SECTION 1- B OF THE ACT. THE DEDUCTION UNDER SECTI ON 10B IS AVAILABLE TO AN UNDERTAKING WHICH IS 100% EXPORT OR IENTED UNIT (EOU) WHICH IS DEFINED IN THE ACT AS AN UNDER TAKING WHICH HAS BEEN APPROVED BY THE BOARD APPOINTED BY T HE CENTRAL GOVERNMENT UNDER SECTION 14 OF THE INDUSTRI ES (DEVELOPMENT AND REGULATION) ACT, 1961. 4.2 IN THE CASE OF THE ASSESSEE, FOR BEING AN UNDERTAKING AS 100%, THE APPROVAL HAS BEEN OBTAINED UNDER STPI SCHEME FROM STPI AUTHORITIES AS BEING 100% EXP ORT ORIENTED UNIT ENGAGED IN EXPORT OF SOFTWARE. SINCE THE ASSESSEE HAS NOT OBTAINED THE APPROVAL OF THE BOARD APPOINTED BY THE CENTRAL GOVERNMENT UNDER SECTION 1 4 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION), ACT, 1951, ITA NOS.255 & 256(BANG)2014 9 WHICH IS THE REQUIREMENT OF THE SECTION 10B, THE C LAIM OF DEDUCTION UNDER SECTION 10B IS NOT CORRECT AND DISA LLOWED BY THE AO AND HELD BY THE CIT(A). 4.3. THE ASSESSEES AUTHORIZED REPRESENTATIVE HAS FILED VARIOUS SUBMISSIONS IN SUPPORT OF CLAIM OF THE ASSE SSEE FOR DEDUCTION UNDER SECTION 10B OF THE ACT. THE AR HAS DURING THE APPELLATE HEARINGS RELIED UPON VARIOUS CASE LAW S AND THE CIRCULARS, PRESS NOTES ETC. THE SAME HAS BEEN EXAMINED AND DISCUSSED. ALL THE CIRCULARS AND PRESS NOTES RELIED UPON BY THE ASSESSEE HAVE NOWHERE INDICATED THAT TH E APPROVALS OBTAINED FROM THE STPI AUTHORITIES FOR SE T UP OF STP UNITS ARE ALSO ELIGIBLE FOR BENEFIT UNDER SECTI ON 10B. THE PRESS NOTES HAVE MERELY INDICATED SETTING UP OF INTER- MINISTERIAL COMMITTEES FOR CONSIDERING THE SET UP O F UNITS UNDER EHTP AND STP DEEMED TO BE FOR THE PURPOSE OF CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT AND NOT F OR 10B. NONE OF THE CIRCULARS BY THE CBDT HAS EVER SPELT OU T ANY MISUNDERSTANDING THAT THE APPROVAL BY THE DIRECTOR STPI COULD BE DEEMED VALID APPROVAL FOR THE PURPOSE OF S ECTION 10B. THE SAME CIRCULARS AND PRESS NOTES HAVE BEEN CONSIDERED BY THE HONBLE HIGH COURT OF DELHI DATED 17-09- 2012 IN THE CASE OF CIT VS M/S VALIANT COMMUNICATIO NS LTD., WHEREIN ASSESSEES CLAIM OF 10B BASED ON APPR OVAL FROM STPI AUTHORITIES WAS REJECTED. ITA NOS.255 & 256(BANG)2014 10 5.1 HOWEVER, THE ASSESSEE HAS MADE AN ALTERNATIVE CLAIM UNDER SECTION 10A OF THE IT ACT STATING THAT THE IT ALSO FULFILLS ALL THE CONDITIONS OF ELIGIBILITY STIPULAT ED UNDER SECTION 10A. THE ASSESSEES AUTHORIZED REPRESENTATIVE FILED FORM NO.56F FOR 10A DEDUCTION SIGNED BY THE CHARTERED ACCOUNTANT. THE SAME WAS EXAMINED. 5.2 THE ASSESSEE IS INTO THE BUSINESS OF EXPORT OF IT ENABLED SOFTWARE AND RESEARCH SERVICES WHICH IS AN ELIGIBLE BUSINESS UNDER SECTION 10A OF THE ACT. THE ASSESSE E HAS OBTAINED APPROVAL FROM THE STPI AUTHORITIES FOR EST ABLISHING STP UNIT FOR EXPORT OF SOFTWARE DEVELOPMENT. 5.3 THE ASSESSEE HAS PRODUCED THE DETAILS OF REALI ZATION OF EXPORT SALES WITH THE TIME PERIOD ALLOWED. 5.4 HOWEVER, SINCE THE ASSESSEE HAS MADE CLAIM OF DEDUCTION UNDER SECTION 10B IN THE RETURN OF INCOME FILED, IT WAS INFORMED TO THE AUTHORIZED REPRESENTATIVE THAT THE ALTERNATIVE CLAIM CANNOT BE CONSIDERED DURING THE ASSESSMENT STAGE. IN RESPONSE TO THIS, THE AUTHORI ZED REPRESENTATIVE STATED THAT THE CIRCULAR NO.14(XI-35 ) OF 1955 DATED APRIL,11, 1955 STATES THAT THE AO SHOULD NOT TAKE ADVANTAGE OF THE ASSESSEES IGNORANCE OF ASSESSEE A S TO HIS RIGHTS AND THAT ALTHOUGH THE RESPONSIBILITY FOR CLA IMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEE ON WHOM IT IS IMPOSED BY LAW, YET THE OFFICERS SHOULD DRAW THE AT TENTION OF THE ASSESSEE TO ANY RELIEF TO WHICH THEY ARE ENTITL ED. THE AUTHORIZED REPRESENTATIVE RELIED UPON THE JUDGMENT OF ITAT, NEW DELHI IN THE CASE OF ITO VS EFEXTRA ESOLUTINS P VT.LTD. DATED 21-10-2011 WHEREIN THE ALTERNATIVE CLAIM OF T HE ITA NOS.255 & 256(BANG)2014 11 ASSESSEE UNDER SECTION 10A INSTEAD OF ORIGINAL CLAI M UNDER SECTION 10B ON THE BASIS OF 56F FILED DURING THE AS SESSMENT PROCEEDINGS WAS ALLOWED. 5.6 CONSIDERING THE SAME, THE ALTERNATE CLAIM OF T HE ASSESSEE FOR DEDUCTION UNDER SECTION 10A IS ALLOWED 9. FROM THE ABOVE ORDER OF ASSESSMENT, IT IS EVIDE NT THAT THE AO ENTERTAINED THE ALTERNATIVE CLAIM OF THE ASSESSEE F OR DEDUCTION U/S 10A OF THE ACT, AND ALLOWED THE SAME SUBJECT TO CERTAIN CA LCULATION MODIFICATION. IN THE INSTANT CASE, ADMITTEDLY, THE CIT(A) CONSIDE RED THE TRIBUNALS ORDER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-0 9. HOWEVER, HE DID NOT HAVE THE BENEFIT OF ASSESSMENT ORDER PASSED PURSUAN T TO THE TRIBUNAL ORDER. IN THE CASE OF M/S VSN MACRO TECHNOLOGIES (P)LTD VS ACIT SA NO.56 & 57/H/2010 (ARISING OUT IN ITA NO.1057/H/2010 DATED 31-01-2011. IT WAS HELD WHEN WRONG CLAIM IS MADE BY ASSESSEE U/S 10B I NSTEAD OF 10A IN THE RETURN ON INCOME, THE DEPARTMENT CANNOT THRUST UPON THE ASSESSEE TO AVAIL DEDUCTION U/S 10B ONLY. IT WAS FURTHER HELD THAT, IF THE ASSESSEE ENTITLED FOR DEDUCTION U/S 10A INSTEAD OF 10B, THAT CLAIM RE QUIRED TO BE EXAMINED BY THE AO IN ALL FAIRNESS AND THE MATTER WAS REMITTED BACK TO THE FILE OF THE AO TO CONSIDER THE ISSUE AFRESH. 10. IN VIEW OF THE ABOVE REASONING AND THE ORDER I N CASE OF M/S VSN MACRO TECHNOLOGIES (P)LTD., (SUPRA), WE DIRECT THE AO, IN THE INTEREST OF JUSTICE AND EQUITY TO CONSIDER THE ALTERNATIVE CLAI M OF ASSESSEE FOR THE ITA NOS.255 & 256(BANG)2014 12 DEDUCTION U/S 10A OF THE ACT. THE AO IS DIRECTED TO DISPOSE OF THE MATTER AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. IT IS ORDERED ACCORDINGLY. FOR THE SAME REASONING, WE R ESTORE THE ISSUE RAISED IN ITA NO.256/12 CONCERNING ASSESSMENT YEAR 2010-11 TO THE FILE OF THE AO FOR DE-NOVO CONSIDERATION. 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESS EE FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11 ARE ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 12 TH AUGUST, 2015 SD/- SD/- (JASON P BOAZ) (GEORGE GEO RGE,K) ACCOUNTANT MEMBER JUDICIAL MEMBER D A T E D : 12-08-2015 PLACE: BANGALORE AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE