KEYLINE SOLUTIONS P.LTD, MUMBAI V. ITO 9(2)(2), MUMBAI

ITA 391/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9615 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KASHYAP
• Assessee Lawyers: MRS ARATI VISSANJI
• Keywords: Opportunity of being heard; Question of law
• Section: 143(3); 10B; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6800/MUM/2014 ASSESSMENT YEAR: 2010 - 11 & ITA NO. 391/MUM/2015 ASSESSMENT YEAR: 2011 - 12 KEYLINE SOLUTIONS PVT. LTD. C - 306, GURUNANAK APARTMENTS, SHANKAR LANE (W) MUMBAI - 400067. VS. ITO - 9(2)(2), MUMBAI PAN NO. AA DCK5175C APPELLANT RESPONDENT ASSESSEE BY : MRS. ARATI VISSANJI, AR REVENUE BY : MR. PURUSHOTTAM KASHYAP , DR DATE OF HEARING : 09/06 /2017 DATE OF PRONOUNCEMENT : 05/09/2017 ORDER PER N.K. PRADHAN, A.M . THE CAPTIONED APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 20 , MUMBAI AND ARISE OUT OF THE ASSESSMENT COMPLETED U/S 143(3) FOR AY 2010 - 11 & AY 201 1 - 12 OF THE INCOME TAX ACT 1961 (THE ACT). AS COMMON ISSUES ARE ITA NO. 6800/MUM/2014 & 391/MUM/2015 2 INVOLVED, WE ARE PROCEEDING TO DISPOSE THEM OFF THROUGH A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER: - ASSESSMENT YEAR 2010 - 11 THE LD. ASSESSING OFFICER HAS ERRED IN DISALLOWING CLAIM U/S 10B OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.34,12,867/ - . ALTERNATIVELY THE APPELLANT BE ALLOWED TO CLAIM DEDUCTION U/S 10A OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.34,12,867/ - AS ITS UNIT IS REGISTERED STPI UNIT. ASSESSMENT YEAR 2011 - 12 THE LD. ASSESSING OFFICER HAS ERRED IN DISALLOWING CLAIM U/S 10B OF THE INCOME TAX ACT , 1961 AMOUNTING TO RS.25,35,247/ - . ALTERNATIVELY THE APPELLANT BE ALLOWED TO CLAIM DEDUCTION U/S 10A OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.25,35,247/ - AS ITS UNIT IS REGISTERED STPI UNIT. 3. WE BEGIN WITH AY 2010 - 11. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE - COMPANY HAS CLAIMED DEDUCTION U/S 10B ON THE PROFIT OF THE STPI UNIT AMOUNTING TO RS.34,12,867/ - . THE ASSESSING OFFICER (AO) DENIED THE ABOVE CLAIM OF THE ASSESSEE ON THE GROUND THAT (I) THE ASSESSEE FAILED TO OBTAIN THE APPR OVAL BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT IN EXERCISE OF THE POWER CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951, AND (II) THE ASSESSEE - COMPANY WAS FORMED BY SPLITTING UP OF EXISTING BUSINESS AC TIVITY AND RECONSTRUCTION OF ITS EXISTING BUSINESS. ITA NO. 6800/MUM/2014 & 391/MUM/2015 3 3.1 LET US BEGIN OUR DISCUSSION ON THE FIRST ISSUE. IN RESPONSE TO A QUERY RAISED BY THE AO, THE ASSESSEE FILED A COPY OF THE LETTER OF PERMISSION DATED 13.05.2009 GRANTED BY THE DIRECTOR, SOFTWARE TECHNOLOGY PARKS OF INDIA. HOWEVER, THE AO WAS NOT CONVINCED WITH THE SAME AS THE ASSESSEE FAILED TO OBTAIN THE APPROVAL BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMENT IN EXERCISE OF THE POWER CONFERRED BY SECTION 14 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951, AND THE RULES MADE UNDER THAT ACT. SUBSEQUENT TO THE DELEGATION OF THIS POWER BY THE MINISTRY OF COMMERCE AND INDUSTRIES TO THE DEVELOPMENT COMMISSIONERS, SUCH APPROVALS TO 100% EOUS ARE GRANTED BY THE DEVELOPMENT COMMISSIONERS, WHICH ARE LATER RATIFIED BY THE BOARD OF APPROVALS. THE AO RELIED ON INSTRUCTION NO2 OF 2009 ISSUED BY CBDT. THIS IS ONE OF THE REASONS MENTIONED BY THE AO WHILE DISALLOW ING THE ASSESSEES CLAIM OF RS.34,12,867/ - U/S 10B OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) AGREED WITH THE AO THAT PROPER APPROVAL WAS NOT OBTAINED AS DELINEATED IN INSTRUCTION NO 2 OF 2009 ISSUED BY CBDT . 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE ASSESSEE - COMPANY HAS OBTAINED APPROVAL FROM THE DIRECTOR, SOFTWARE TECHNOLOGY PARKS OF INDIA , (DIT, MINISTRY OF COMMUNICATIONS & INFORMATION TECHNOLOGY, GOVERNMENT OF INDIA), MUMBAI. IN THIS CONTE XT SHE RELIES ON INSTRUCTION NO 1 OF 2006 ISSUED BY CBDT . THE LD. COUNSEL ITA NO. 6800/MUM/2014 & 391/MUM/2015 4 ALSO RELIES ON THE DECISION IN PRUMATECH INFOSYSTEMS PVT. LTD VS. DCIT (ITA NO. 1030/MDS/2016) OF ITAT, CHENNAI; M/S PEACOCK APPARELS (P) LTD. VS. ITO [W.P. (MD)NOS. 2951 TO 2953 OF 2015 & W.P. (MD)NOS. 1 & 2OF 2015] OF MADURAI BENCH OF MADRAS HIGH COURT; ITO VS. M/S WIZARD ENTERPRISES PVT. LTD (ITA NO 628/KOL/2011) OF ITAT, KOLKATA & ACIT VS. M/S MAJUMDAR & CO (ITA NO 6604/MUM/2012) OF ITAT, MUMBAI. 6. ON THE OTHER HAND THE LD. DR RELIES ON INSTRUCTION NO 2 OF 2009 ISSUED BY CBDT AND THE ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN IN SUCCEEDING PARAGRAPHS . LET US DISCUSS THE TWO INSTRUCTIONS OF CBDT REFERRED BEFORE US. IN INSTRUCTION NO 2 OF 2009 , IN RESPECT OF SECTION 10B , THE FOLLOWING IS MENTIONED: SECTION 10B OF THE INCOME - TAX ACT PROVIDES FOR EXEMPTION OF INCOME IN CASE OF HUNDRED PER CENT EXPORT ORIENTED UNDERTAKINGS SUBJECT TO PRESCRIBED CONDITIONS. EXPLANATION 2(IV) BELOW THE SAID SECTION DEFINES A 'HUNDRED PERCENT EXPORT ORIENTED UNDERTAKING' 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. SUBSEQUENT TO THE DELEGATION OF THIS POWER BY THE MINISTRY OF COMMERCE AND INDUSTRIES TO THE DEVELOPMENT COMMISSIONERS, SUCH APPROVALS TO 100% EOUS AR E NOW BEING GRANTED BY THE DEVELOPMENT COMMISSIONERS, WHICH ARE LATER RATIFIED BY THE BOARD OF APPROVALS. ITA NO. 6800/MUM/2014 & 391/MUM/2015 5 THE MATTER REGARDING VALIDITY OF APPROVALS GIVEN BY DEVELOPMENT COMMISSIONERS HAS BEEN EXAMINED IN THE BOARD. IT HAS BEEN DECIDED THAT AN APPROVAL GRA NTED BY THE DEVELOPMENT COMMISSIONER IN THE CASE OF AN EXPORT ORIENTED UNIT SET UP IN AN EXPORT PROCESSING ZONE WILL BE CONSIDERED VALID, ONCE SUCH AN APPROVAL IS RATIFIED BY THE BOARD OF APPROVAL FOR EOU SCHEME. 7.1 IN INSTRUCTION NO 1 OF 2006 , IN RESPEC T OF SECTION 10A , THE FOLLOWING IS MENTIONED : 3. IN EXERCISE OF THE POWERS CONFERRED BY SUB - SECTION (1) OF SECTION 3 OF THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992, THE MINISTRY OF COMMERCE NOTIFIED THE SOFTWARE TECHNOLOGY PARK SCHEME WHEREIN IT WAS PROVIDED THAT A SOFTWARE TECHNOLOGY PARK MAY BE SET UP BY THE CENTRAL GOVERNMENT, STATE GOVERNMENT, PUBLIC OR PRIVATE SECTOR UNDERTAKINGS OR ANY COMBINATION THEREOF. AN STP MAY BE AN INDIVIDUAL UNIT BY ITSELF OR IT MAY BE ONE OF SUCH UNITS LOCATED IN AN AREA DESIGNATED AS STP COMPLEX BY THE DEPARTMENT OF ELECTRONICS. THE SCHEME WAS REQUIRED TO BE ADMINISTERED BY THE DEPARTMENT OF ELECTRONICS, GOVERNMENT OF INDIA, THROUGH DIRECTORS OF RESPECTIVE SOFTWARE TECHNOLOGY PARKS WHICH FORM PART OF THE SOFTWA RE TECHNOLOGY PARKS OF INDIA (STPI), A SOCIETY ESTABLISHED BY THE DEPARTMENT OF ELECTRONICS AND REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860. AN APPLICATION IN THE PRESCRIBED FORM FOR ESTABLISHING A STP UNIT WAS REQUIRED TO BE SUBMITTED TO THE CHI EF EXECUTIVE OF STP COMPLEX ALONG WITH THE DETAILS OF THE SOFTWARE PROJECT. SUCH APPLICATION WAS TO BE CONSIDERED BY AN INTER - MINISTERIAL STANDING COMMITTEE (IMSC) CONSTITUTED UNDER THE CHAIRMANSHIP OF SECRETARY, DEPARTMENT OF ELECTRONICS, GOVERNMENT OF IN DIA. 4. SUBSEQUENTLY, VIDE NOTIFICATION NO. 4/(RE - 95/92 - 97) DATED 30TH APRIL, 1995 ISSUED BY THE DIRECTOR GENERAL (FOREIGN TRADE), MINISTRY OF COMMERCE, IN EXERCISE OF POWERS CONFERRED IN SUB - SECTION (1) OF SECTION 3 OF THE FOREIGN ITA NO. 6800/MUM/2014 & 391/MUM/2015 6 TRADE (DEVELOPMENT AND R EGULATION) ACT, 1992, NOTIFIED THE AMENDED STP SCHEME. PARA 2.3 OF THE AFORESAID NOTIFICATION PROVIDES THAT THE SCHEME IS ADMINISTERED BY THE DEPARTMENT OF ELECTRONICS, GOVERNMENT OF INDIA, THROUGH DIRECTORS OF RESPECTIVE STPS WHICH FORM PART OF THE STPI, A SOCIETY ESTABLISHED BY THE DEPARTMENT OF ELECTRONICS AND REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860. AN APPLICATION IN THE PRESCRIBED FORMAT FOR ESTABLISHING A STP UNIT MAY BE SUBMITTED TO THE CHIEF EXECUTIVE OF STP COMPLEX ALONG WITH THE DETA ILS OF THE SOFTWARE PROJECT. SUCH APPLICATION WILL BE CONSIDERED BY AN INTER - MINISTERIAL STANDING COMMITTEE CONSTITUTED UNDER THE CHAIRMANSHIP OF SECRETARY, DEPARTMENT OF ELECTRONICS. 5. INSTANCES HAVE BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT A LARGE N UMBER OF UNITS REGISTERED/APPROVED BY THE DIRECTORS OF THE STPI ARE CLAIMING DEDUCTION UNDER SECTION 10A WHEREAS THE STP SCHEME REQUIRES APPROVAL BY THE INTER - MINISTERIAL STANDING COMMITTEE OF THE DEPARTMENT OF ELECTRONICS. ACCORDINGLY, THE CASES OF SUCH C LAIMANTS HAVE BEEN REOPENED BY THE FIELD AUTHORITIES. 6. THE MATTER HAS BEEN EXAMINED IN CONSULTATION WITH THE OFFICERS OF THE DEPARTMENT OF INFORMATION TECHNOLOGY (EARLIER, DEPARTMENT OF ELECTRONICS). IN VIEW OF THE AMBIGUITY IN THE LEGAL STATUS OF THE AP PROVAL BY DIRECTOR OF STPS, THE INTER - MINISTERIAL STANDING COMMITTEE WILL MEET TO CONSIDER THE APPROVALS BY DIRECTOR OF STPS ISSUED IN THE PAST. THEREFORE, WITH A VIEW TO AVOID INFRUCTUOUS DEMAND RAISED IN ASSESSMENT AND REASSESSMENT OF ASSESSEES CLAIMING DEDUCTION UNDER SECTION 10A, IT HAS BEEN DECIDED THAT THE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE INCOME - TAX ACT, SHALL NOT BE DENIED TO STP UNITS ONLY ON THE GROUND THAT THE APPROVAL/REGISTRATION TO SUCH UNITS HAS BEEN GRANTED BY THE DIRECTORS OF SOFT WARE TECHNOLOGY PARKS. HOWEVER, IT HAS TO BE ENSURED THAT ALL OTHER CONDITIONS SPECIFIED IN SECTION 10A ARE FULLY SATISFIED BEFORE ALLOWING ANY SUCH CLAIM. ITA NO. 6800/MUM/2014 & 391/MUM/2015 7 7. IN CASES WHERE ASSESSMENTS/REASSESSMENTS HAVE ALREADY BEEN COMPLETED, AND THE CLAIM UNDER SECTION 10A HAS BEEN DISALLOWED ONLY ON THE GROUND THAT THE APPROVAL TO THE STP HAS NOT BEEN GRANTED BY THE INTER - MINISTERIAL STANDING COMMITTEE IN ACCORDANCE WITH THE SCHEME, THE DEMAND SO ARISING SHOULD BE KEPT IN ABEYANCE UNTIL FURTHER ORDERS. 7.2 TWO DECISIO NS BY THE HONBLE DELHI HIGH COURT CLARIFY THE PRESENT CONTENTIONS ISSUE. THESE ARE CIT VS. R EGENCY CREATIONS LTD. (2013) 353 ITR 0326 (DEL) AND CIT VS. TECHNOVATE E SOLUTIONS PVT. LTD. (2013) 354 ITR 110 . IN REGENCY CREATIONS LTD.(SUPRA), THE HONBLE HIGH COURT HELD AS UNDER: IN THE PRESENT CASE, THERE IS NO NOTIFICATION OR OFFICIAL DOCUMENT SUGGESTING THAT EITHER THE INTER MINISTERIAL COMMITTEE, OR ANY OTHER OFFICER OR AGENCY WAS NOMINATED TO PERFORM THE DUTIES OF THE BOARD (CONSTITUTED UNDER SECTION 14 OF THE IDR ACT), FOR PURPOSES OF APPROVALS UNDER SECTION 10 - B. THOUGH THE CONSIDERATIONS WHICH APPLY FOR GRANTING APPROVAL UNDER SECTIONS10 - A AND 10 - B MAY TO AN EXTENT, OVERLAP, YET THE DELIBERATE SEGREGATION OF THESE TWO BENEFITS BY THE STATUTE REFLECTS P ARLIAMENTARY INTENTION THAT TO QUALIFY FOR BENEFIT UNDER EITHER, THE SPECIFIC PROCEDURE ENACTED FOR THAT PURPOSE HAS TO BE FOLLOWED. THERE IS NOTHING IN ANY OF THE CIRCULARS OR INSTRUCTIONS RELIED ON BY THE TRIBUNAL IN ALL THE ORDERS, IMPLYING THAT APPROVA L FOR PURPOSES OF AN STP ALSO ENTITLED THE UNIT TO A BENEFIT UNDER SECTION 10 - B. THE ORDERS OF THE TRIBUNAL ARE CONSEQUENTLY ERRONEOUS, AND ITS REASONING, UNSUPPORTABLE. (EMPHASIS SUPPLIED) IN TECHNOVATE E SOLUTIONS PVT. LTD.(SUPRA) , THE HONBLE HIGH COURT REFERRING TO THE INTER - MINISTERIAL COMMUNICATION DATED 23.03.2006 ITA NO. 6800/MUM/2014 & 391/MUM/2015 8 ISSUED BY THE SECRETARY, MINISTRY OF COMMUNICATION AND TECHNOLOGIES HELD: IT IS APPARENT FROM THE ABOVE INSTRUCTION THAT IT HAD BEEN DECIDED BY THE BOARD THAT THE CLAIM OF DEDUCTION UNDER SECTION 10A OF THE SAID ACT SHOULD NOT BE DENIED TO THE SOFTWARE TECHNOLOGY PARK UNITS ONLY ON THE GROUND THAT THE APPROVAL/REGISTRATION TO S UCH UNITS HAD BEEN GRANTED BY DIRECTORS OF THE SOFTWARE TECHNOLOGY PARKS. A REFERENCE MAY ALSO BE MADE TO THE INTER - MINISTERIAL COMMUNICATION DATED 23.3.2006 ISSUED BY THE SECRETARY, MINISTRY OF COMMUNICATIONS AND TECHNOLOGIES TO THE FOLLOWING EFFECT: - 1. SOFTWARE TECHNOLOGY PARK OF INDIA (STPI) IS A SOCIETY OWNED AND ADMINISTERED BY THE GOVT. OF INDIA AND THEREFORE IS STATE UNDER ARTICLE 12 OF THE CONSTITUTION OF INDIA. 2. THE STPI DIRECTORS ARE DULY AUTHORIZED AND FULLY EMPOWERED TO ISSUE APPROVALS AS 1 00 PERCENT EOUS TO THE UNIT UNDER THE STP SCHEME UNDER DELEGATED POWERS GRANTED AS PER PARA 9.36 OF THE HANDBOOK OF PROCEDURES (VOL.1) 1997 - 2002. 3. ALL THE APPROVALS ISSUED BY THE STPI DIRECTORS HAVE THE AUTHORITY OF INTER - MINISTERIAL STANDING COMMITTEE (IMSC). THE IMSC HAS PERIODICALLY REVIEWED THE VARIOUS APPROVALS GRANTED BY THE STPI DIRECTORS IN ACCORDANCE WITH THE GOVT. OF INDIA GUIDELINES/NOTIFICATIONS. ALL THE CURRENT APPROVALS GRANTED BY THE STPI DIRECTORS ARE THEREFORE, DEEMED TO BE VALID. THE ABOVE COMMUNICATION MAKES IT CLEAR THAT THE APPROVALS ISSUED BY THE DIRECTORS OF THE SOFTWARE TECHNOLOGY PARKS OF INDIA HAVE THE AUTHORITY OF THE INTER - MINISTERIAL STANDING COMMITTEE AND THAT ALL APPROVALS GRANTED BY THE STPI DIRECTORS ARE THEREFORE DEEMED TO BE VALID. THE POSITION IS ALSO CLEAR ITA NO. 6800/MUM/2014 & 391/MUM/2015 9 FROM A LETTER DATED 6.5.2009 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES TO THE JOINT SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY WHEREIN A DISTINCTION HAS BEEN DRAWN BETWEEN THE PROVISIONS OF SECTION 10A AND 10B O F THE INCOME TAX ACT, 1961 AND IN WHICH IT HAS BEEN CLARIFIED THAT A UNIT APPROVED BY THE DIRECTOR UNDER THE SOFTWARE TECHNOLOGY PARKS SCHEME WILL BE ALLOWED EXEMPTION ONLY UNDER SECTION 10A AS A STPI UNIT AND NOT UNDER 10B AS A 100 PERCENT EXPORT ORIENTED UNIT. IT IS THEREFORE, CLEAR FROM THE ABOVE INSTRUCTION AND COMMUNICATIONS THAT THE VIEW OF THE CENTRAL BOARD OF DIRECT TAXES IS THAT APPROVALS GRANTED BY THE DIRECTORS OF SOFTWARE TECHNOLOGY PARKS OF INDIA WOULD BE DEEMED TO BE VALID INASMUCH AS THE SAID DIRECTORS WERE FUNCTIONING UNDER THE DELEGATED AUTHORITY OF THE INTER - MINISTERIAL STANDING COMMITTEE. 5. IN THIS VIEW OF THE MATTER, QUESTION A WHICH HAS BEEN PROPOSED BY THE LEARNED COUNSEL FOR THE REVENUE DOES NOT RAISE ANY SUBSTANTIAL ISSUE OF LAW. TH E SAME HAS BEEN COVERED BY THE CBDTS INSTRUCTION AND CORRESPONDENCE. IT IS THEREFORE, CLEAR THAT THE RESPONDENT - ASSESSEE WOULD BE ENTITLED TO THE DEDUCTION CLAIMED UNDER SECTION 10A INASMUCH AS APPROVAL GRANTED BY A DIRECTOR OF THE SOFTWARE TECHNOLOGY PAR KS OF INDIA WOULD BE A DEEMED APPROVAL OF THE INTER - MINISTERIAL STANDING COMMITTEE AND, THEREFORE, THE CONDITION STIPULATED UNDER SECTION 10A(2) OF THE SAID ACT WOULD STAND COMPLIED WITH. 6. THE LEARNED COUNSEL FOR THE APPELLANT SOUGHT TO RAISE AN ARGUMEN T ON THE BASIS OF THE DECISION OF THIS COURT IN CIT VS. REGENCY CREATIONS LTD. IN ITA 69/2008 AND OTHER CONNECTED APPEALS WHICH WAS DECIDED ON 17.9.2012, HOWEVER, WE FEEL THAT THE SAID DECISION WOULD BE OF NO USE TO THE APPELLANT INASMUCH AS THAT DECISION WAS CONCERNED SPECIFICALLY WITH THE PROVISIONS OF SECTION 10B WHICH STAND ON AN ENTIRELY DIFFERENT FOOTING THAN THE PROVISIONS OF SECTION 10A . (EMPHASIS SUPPLIED) ITA NO. 6800/MUM/2014 & 391/MUM/2015 10 7.3 THUS THE ASSESSEE - COMPANY WHICH HAS BEEN GRANTED PERMISSION BY DIRECTOR, SOFTWARE TECHNOLOGY PARKS OF INDIA IS NOT ELIGIBLE FOR EXEMPTION U/S 10B OF THE ACT. 7.4 WE NOW DISCUSS THE DECISIONS RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE. IN PRUMATECH INFOSYSTEMS PVT. LTD(SUPRA), THE TRIBUNAL HAS HELD THAT THE BENEFIT CANNOT BE DENIED TO THE ASSESSEE DESPITE THE FACT THAT SECTION 10B OF THE ACT SPECIALLY RELATES TO REGISTRATION U/S 14 OF THE INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951. IN M/S WIZARD ENTERPRISES PVT. LTD , THE TRIBUNAL HAS HELD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 10B OF THE ACT AS A 100% EOU ON BEING REGISTERED WITH STPI. WE ARE OF THE CONSIDERED VIEW THAT THE JUDGEMENTS OF THE HONBLE DELHI HIGH COURT MENTIONED AT PARA 7.2 HERE - IN - ABOVE ADDRESS THE ISSUE DIRECTLY AND THEREFORE WE FOLLOW THEM. 7.5 IN M/S PEACOCK APPARELS (P) LTD.(SUPRA), THE APPROVAL GRANTED BY THE DEVELOPMENT COMMISSIONER IN THE CASE OF 100% EXPORT ORIENTED UNIT WAS CONSIDERED VALID ONCE SUCH APPROVAL WAS RATIFIED BY THE BOA FOR THE EOU SCHEME. THEREFORE , THE REOPENING WAS HELD AS NOT VALID. ALSO IN M/S MAJUMDAR & CO(SUPRA), THE DEVELOPMENT COMMISSIONER HAD CONFIRMED THE GRANT OF EOU STATUS TO THE UNIT. ITA NO. 6800/MUM/2014 & 391/MUM/2015 11 IN THE LIGHT OF THE ABOVE, AS THE APPROVALS IN THE ABOVE CASES WERE GIVEN BY THE DEVELOPMENT COMMISSIONER, THE INSTANT CASE IS DISTINGUISHABLE FROM THE DECISIONS RELIED ON BY THE LD. C OUNSE L . 7.6 THUS WE HOLD THAT THE ASSESSEE IS NOT ENTITLED TO CLAIM EXEMPTION U/S 10B OF THE ACT. 8. HOWEVER, WE FIND THAT THE ASSESSEE HAS RAISED AN ALTERNATE GROUND OF APPEAL STATING THAT IT BE AL LOWED TO CLAIM DEDUCTION U/S 10A OF THE ACT AS ITS UNIT IS REGISTERED AS STPI UNIT. WE FIND THAT THE ASSESSEE HAD RAISED THIS ALTERNATE GROUND OF APPEAL BEFORE THE LD. CIT(A) ON 28.04.2014. A PURE QUESTION OF LAW, OR A PLEA WHICH COULD BE CONSIDERED ON THE EVIDENCE ALREADY ON RECORD, CAN, FOR THE FIRST TIME, BE RAISED AND PLEADED BEFORE THE TRIBUNAL. ON SUCH A PLEA BEING TAKEN, THE TRIBUNAL IS UNDER A STATUTORY OBLIGATION TO ENTERTAIN THE PLEA AND DECIDE THE SAME, NO MATTER AT WHAT STAGE IT WAS TAKEN AS HEL D IN J.S. PARKAR VS. V.B. PALEKAR , (1974) 94 ITR 616 (BOM), APPLYING, CIT VS. MAHALAKSHMI TEXTILE MILLS LTD., (1967) 66 ITR 710 (SC) . SIMILAR PRINCIPLE IS ENUNCIATED IN B EHARILAL RAMCHARAN COTTON MILLS LTD. VS. CIT, (1966) 62 ITR 212 (BOM) , CIT VS. BREACH CANDY SWIMMING BATH TRUST (1955) 27 ITR 279 (BOM); CWT VS. N.A. NARIELWALLA (1980) 126 ITR 344 (BOM). 8.1 WE FIND THAT THE ALTERNATIVE CLAIM U/S 10A IS A PURE QUESTION OF LAW WHICH COULD BE CONSIDERED ON THE BASIS OF EVIDENCE ALREADY ON RECORD. THEREFORE , WE ADMIT THE ALTERNATE GROUND OF APPEAL . THOUGH THIS ALTERNATE GROUND OF APPEAL WAS BEFORE THE LD. CIT(A), HE HAS NOT CONSIDERED IT. ITA NO. 6800/MUM/2014 & 391/MUM/2015 12 8.2 IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO EXAMIN E THE ALTERNAT E CLAIM U/S 10A AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AO WOULD ENSURE THAT ALL OTHER CONDITIONS SPECIFIED IN SECTION 10A ARE FULLY SATISFIED BEFORE ALLOWING ANY SUCH CLAIM. THE ASSESSEE IS DIRECTED TO FILE THE RELEVANT DETAILS BEFORE THE AO. 8.3 OUR DECISION FOR THE A.Y. 2010 - 11 EQUALLY APPLIES TO THE A.Y 2011 - 12. 9. IN THE RESULT, THE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/09/2017. SD/ - SD/ - ( MAHAVIR SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 05/09/2017 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI