BRISTLECONE INDIA LTD, MUMBAI V. DCIT 2(1), MUMBAI

ITA 4282/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7548 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL LD
• Assessee Lawyers: H P MAHAJANI; PRASAD BAPATLD ARS
• Keywords: Depreciation; Wholly owned subsidiary; Revised return; Unabsorbed depreciation
• Section: 143(3); 80HHC; 115JB

Judgement Text

ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 4282/MUM/2016 ( / ASSESSMENT YEAR: 2009-10) BRISTLECONE INDIA LIMITED 2 ND FLOOR, TECHNIPLEX-1, TECHNIPLEX COMPLEX OFF VEER SAVARKAR FLYOVER GOREGAON(W) MUMBAI 400 0 62 / VS. DEPUTY COMMISSIONER OF INCOME TAX 2(1) AAYKAR BHAVAN M.K.ROAD MUMBAI-400 020 ./ ./PAN/GIR NO. AAACM-5186-E ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : H.P.MAHAJANI & PRASAD BAPAT, LD. ARS REVENUE BY : RAJAT MITTAL, LD. DR / DATE OF HEARING : 25/01/2018 / DATE OF PRONOUNCEMENT : 04/04/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF LD. COMMISSIONER OF IN COME-TAX (APPEALS)-4 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-4/IT-122/DCIT- 2(1)/2013-14 DATED 02/03/2016. THE ASSESSMENT FOR IMPUGNED AY WAS ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 2 FRAMED BY LD. DEPUTY COMMISSIONER OF INCOME TAX, CI RCLE-2(1), MUMBAI [AO] U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 14/03/201 3. THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL BEFORE US:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, WHETHER THE ASSESSING/APPELLATE AUTHORITIES HAVE POWER TO DECID E WHETHER OR NOT ASSESSEE APPELLANT HAS CARRIED OUT MANUFACTURING AND EXPORT OF SOFTWARE WHEN THE SPECIALIZED AUTHORITY, THE SOFTWARE TECHNOLOGY PARK AUTHORITIES HAVE CERTIFIED BOTH MANUFACTURING OF SOFTWARE AS WELL AS EXPORT OF SOFT WARE BY THE APPELLANT 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ENHANCING THE INCOME BY RS.3,39,75,960/- W ITHOUT FOLLOWING PROCEDURES AS LAID DOWN U/S.251. 3. WITHOUT PREJUDICE TO ABOVE GROUND CIT(A) ERRED I N ENHANCING THE INCOME HOLDING THAT THE APPELLANT HAD NOT UNDERTAKEN ANY MANUFACTU RING AND EXPORT OF SOFTWARE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN STATING THAT THE APPELLANT HAD FAILED TO D EMONSTRATE ANY EVIDENCE OF MANUFACTURING OF COMPUTER SOFTWARE OR COMPUTE PROGR AMS OR COMPUTERIZED ELECTRONIC DATA OR PROJECT OR SERVICE OF SIMILAR NA TURE AS NOTIFIED BY CBDT AND FURTHER ERRED IN CONCLUDING THAT THE APPELLANT IS NOT ENTIT LED FOR DEDUCTION U/S.10A. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND N LAW, THE LEARNED CIT(A) ERRED IN FINALLY CONCLUDING THAT APPELLANT IS NOT E NTITLED TO DEDUCTION U/S.10A ON THE BASIS OF NEW FACTS WHICH HAVE EMERGED IN THE YEAR IN CONTRAST AND COMPARISON TO EARLIER YEARS, WHEREAS AS A MATTER OF FACT THERE IS NO CHANGE IN THE FACTS, CIRCUMSTANCES AND THE NATURE OF THE BUSINESS ACTIVI TY CARRIED OUT BY THE APPELLANT. 6. WITHOUT PREJUDICE TO GROUND NO.1 TO 5 HE LEARNED CIT(A) EVEN OTHERWISE ERRED IN ENHANCING THE INCOME BY RS.3,39,75,960/- INSTEAD OF RS.1,26,17,478/-. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTION OF AO IN REDUCING TH E DEDUCTION U/S.10A BY ATTRIBUTING INTEREST EXPENSES OF RS.3,80,575/- TOWARDS STPI UNI T. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUND IN RELATION TO AOS ACTION OF REDUCING THE DEDUCTION U/S.10A BY ATTRIBUTING EXCESS PROVISION O F EARLIER YEARS OF RS.83,62,000/- TOWARDS NON STPI UNIT. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE ADDITIONAL GROUND IN REGARD TO DEDUCTION UNDER SECTION 10A ON THE EXCHANGE GAIN OF RS.9,96,985/- ARISING O N RESTATEMENT OF FOREIGN DEBTORS OUTSTANDING AS ON 31 ST MARCH 2009 OF THE STPI UNIT AT BANGALORE. 10.ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW , THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUND RELATING TO DISALLOWANCE OF THE SET OFF OF UNABSORBED DEPRECIATION OF RS.2,55,37,440/- PERTAINING TO ASSE SSMENT YEAR 1996-97 TO 2000-01 AGAINST THE INCOME FOR THE YEAR. 11.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUND IN RELATION TO ADDITION MADE BY AO ON ACCOUNT OF DIVIDEND INCOME OF RS.15,000 WITHOUT APPRECIATING T HAT APPELLANT HAD NOT CLAIMED THE SAID INCOME AS EXEMPT. 2.1 BRIEFLY STATED THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE ENGAGED IN RENDERING SOFTWARE SERVICES WAS ASSESSED AT RS.558.48 LACS UNDER NORMAL PROVISIONS AS AGAINST RETURNED IN COME OF RS.23.01 ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 3 LACS E-FILED BY THE ASSESSEE ON 26/09/2009. THE RETURNED INCOME WAS LATER REVISED ON 29/03/2011 TO RS.141.95 LACS. 2.2 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE WAS NATIONAL IMPLEMENTATION PARTNER FOR SAP IN INDIA AND ENGAGED IN RENDERING SOFTWARE SERVICES, SOFTWARE DEVELOPMENT & CUSTOMIZA TION AND TRADING IN SOFTWARE / HARDWARE. THE ASSESSEE COMPANY WAS WHOLLY OWNED SUBSIDIARY COMPANY OF BRISTLECONE LTD., CAYMAN ISLANDS . THE ASSESSEE WAS GLOBAL PROVIDER OF CUSTOMIZED, SCALABLE ENTERPRISES AND E-BUSINESS SOLUTIONS AND OPERATED THROUGH DEVELOPMENT CENTERS AT MUMBAI, PUNE & BANGALORE . THE ASSESSEE WAS ACTIVE BOTH IN DOMESTIC AS WELL AS IN OVERSEAS MARKET. 2.3 THE ASSESSEE REPORTED TURNOVER OF 114.86 CRORES WITH NET PROFIT OF RS.11.36 CRORES. AGAINST THE SAME, IT CLAIMED DEDUC TION / EXEMPTION U/S 10A ON ACCOUNT OF PROFIT GENERATED BY ITS SOFTWARE TECHNOLOGY PARK UNIT [STP] SITUATED AT BANGALORE . THE ASSESSEE HAD TWO UNITS AT BANGALORE AT 201-2224, 2 ND FLOOR, TOWER-B, DIAMOND DISTRICT, KODIHALLY VILLAG E AIRPORT ROAD, BANGALORE-560008. THE SAID PREMISES WAS SHARED BY STP AS WELL AS NON-STP UNITS . THE STP UNITS AS WELL AS NON-STP UNITS WERE ENGAGED IN RENDERING SOFTWARE SERVICES. THE DATE OF COMMENCEMENT OF STP UNIT WAS 08/07/2004 AND THIS WAS THE FOURTH YEAR OF CLAIMING DEDUCTION U/S 10A. 2.4 BEFORE LD. AO, THE MAIN DISPUTE REVOLVED AROUND ALLOCATION OF COMMON EXPENDITURE BETWEEN STP UNITS AND NON-STP UNITS. INITIALLY, THE ASSESSEE CLAIMED DEDUCTION U/S 10A FOR RS.406.08 LA CS AS PER AUDITORS CERTIFICATE IN FORM 56F WHICH WAS LATER REVISED DOWNWARD TO RS.287.13 LACS IN THE REVISED RETURN OF INCOME ON THE BASIS O F EXPENSE ALLOCATION ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 4 FORMULAE ADOPTED BY LD. CIT(A) IN EARLIER ASSESSMEN T YEARS. THE LD. AO, WHILE ACCEPTING THE SAME, DID NOT CONCUR WITH A LLOCATION OF SOFTWARE PURCHASE EXPENSES OF RS.113 LACS AND INTEREST EXPENSES OF RS.116.63 LACS BETWEEN THESE UNITS AND OPINED THAT THE SAME W AS HEAVILY SKEWED IN ASSESSEES FAVOR. THE LD. AO ALLOCATED THE SAME ON THE BASIS OF PROPORTION OF TURNOVER OF STP UNIT VIS--VIS TOTAL TURNOVER WHICH CAME TO 18.10%. IT WAS FURTHER NOTED THAT THE ASSESSEE CLAI MED DEDUCTION U/S 10A AGAINST FOREIGN EXCHANGE GAINS AND EXCESS PROVISION OF EARLIER YEARS AMOUNTING TO RS.82.40 LACS & RS.83.62 LACS, W HICH, IN THE OPINION OF LD. AO, WAS NOT ALLOWABLE TO THE ASSESSE E. THESE ADJUSTMENTS RESTRICTED THE DEDUCTION U/S 10A TO RS. 149.29 LACS WHICH WAS FURTHER REDUCED TO RS.126.17 LACS ON THE BASIS OF PROPORTION OF EXPORT TURNOVER VIS--VIS TOTAL TURNOVER OF THE ELI GIBLE UNIT ENTITLED TO CLAIM DEDUCTION U/S 10A. 2.5 THE LD. AO ADDED ANOTHER INCOME OF RS.15,000/- BEING INTEREST EARNED BY THE ASSESSEE FROM A COOPERATIVE BANK WHIC H WAS CLAIMED AS DIVIDEND INCOME BEING EXEMPT U/S 10(34). THE ASSESSEE ALSO CLAIMED UNABSORBED DEPRECIATION OF AYS 1996-97 TO 2000-2001 AGGREGATING TO RS.2.55 CRORES WHICH WERE NOT ALLOWED IN TERMS OF S ECTION 32(2) SINCE EIGHT YEARS HAD ALREADY ELAPSED. 2.6 FINALLY THE INCOME OF THE ASSESSEE WAS COMPUTED AT RS.558.48 LACS UNDER NORMAL PROVISIONS WHEREAS THE BOOK PROFIT U/S 115JB WAS COMPUTED AS RS.1215.60 LACS. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 02/03/2 016 WHERE LD. CIT(A) NOTED THAT THE ASSESSEE WAS NOT MANUFACTURIN G OR PRODUCING ANY ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 5 COMPUTER SOFTWARE / PROGRAM ETC. BUT ENGAGED IN PROVIDING SERVICES IN THE NATURE OF PROFESSIONAL SERVICES, MANAGED SERVICES & SYSTEM INTEGRATION SERVICES AND HENCE, NOT ENTITLED TO CLAIM ANY DEDUCTION AT ALL U/S 10A. THE ASSESSEE CONTENDED THAT IT WAS ENGAGED IN PRODUCTION OF COMPUTER SOFTWARE AS WELL AS RENDERING OF NOTIFIED SOFTWARE SERVICES TO BOTH DOMESTIC AS WELL AS OVERSEAS CUSTOMERS. IT WAS FURTHER CONTENDED THAT THE ASSESSEE RENDERED FOUR TYPES OF NOTIFIED S ERVICES I.E. BACK OFFICE OPERATIONS, ENGINEERING & DESIGN, REMOTE MAI NTENANCE AND SUPPORT CENTER SERVICES AS PER THE CUSTOMER REQUIREMENTS. THE ATTENTION WAS DRAWN TO THE FACT THAT 206 SOFTWARE T ECHNICIANS WERE EMPLOYED IN THE ELIGIBLE STP UNIT OUT OF TOTAL EMPLOYEE STRENGTH OF 1086 EMPLOYEES AND THE SERVICES RENDERED FOR STP UNIT WAS SEPARATELY AND DISTINCTLY EARMARKED AND DEDUCTION HAS BEEN CLAIMED ONLY AGAINST REVENUE GENERATED BY STP UNIT WHICH IS DULY CERTIFIED BY THE AUDITORS. THE ATTENTION WAS ALSO DRAWN TO ANNUAL PERFORMANCE REPORT FOR 2008-09 FILED BY THE ASSESSEE WITH APPROPRIATE AUTHORITY UN DER SOFTWARE TECHNOLOGY PARKS OF INDIA, BANGALORE. IT WAS FURTHER CONTENDED THAT THE SOFTWARE SERVICES WERE PROVIDED TO THE SISTER CONCE RN OF THE ASSESSEE NAMELY BRISTLECONE GMBH & BRISTLECONE INC. PURSUANT TO AGREEMENTS AND THE ACTIVITIES WERE CARRIED OUT WITH RESPECT TO WORK EXECUTED FOR THE END CUSTOMERS OF BRISTLECONE GMBH (SAP AG) AND BRISTLECONE INC. (NIKE). THE ATTENTION WAS DRAWN TO VARIOUS CLAUSES OF THE A GREEMENT AND CBDT NOTIFICATION NO. 890(E) DATED 26/09/2000 ISSUED IN TERMS OF EXPLANATION 2(I) TO SECTION 10A TO SUPPORT THE STAN D THAT THE IMPUGNED SERVICES WAS COVERED WITHIN THE FRAMEWORK OF STATUT ORY PROVISIONS OF SECTION 10A. HOWEVER, NOT CONVINCED, LD. CIT(A), INTER-ALIA NOTED THAT ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 6 THE ASSESSEE FAILED TO DEMONSTRATE ANY EVIDENCE OF MANUFACTURING OF COMPUTER SOFTWARE OR COMPUTER PROGRAM OR CUSTOMIZED ELECTRONIC DATA OR PROJECT OR SERVICES OF SIMILAR NATURE AS NOTIFIE D BY CBDT AND THE SERVICES WERE MAINLY OF MANAGERIAL / CONSULTING / CUSTOMER ORIENTED SERVICES RENDERED ON THE BASIS OF SOFTWARE PRODUCED BY ITS S ISTER CONCERN OR PARENTAL COMPANY OR FOREIGN COMPANY. IN THE NUTSHELL, THE LD. CIT(A) OPINED THAT THE NATURE OF SERVICES BEING REN DERED WERE MAINLY SUPPORT SERVICES RELATED TO APPLICATION OF SOFTWARE AND NOT AT ALL MANUFACTURING OF COMPUTER SOFTWARE. AFTER DUE CONSI DERATION OF FACTUAL MATRIX, THE LD. CIT(A) CONCLUDED THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 10A AT ALL AND THEREFORE, ENHAN CED THE ASSESSMENT BY RS.339.75 LACS. AGGRIEVED, THE ASSESSEE IS IN FU RTHER APPEAL BEFORE US. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE [AR] TAKING US THROUGH THE DOCUMENTS PLACED IN THE PAPER-BOOK AND STATUTORY PROVISIONS AS CONTAINED IN SECTION 10A CONTENDED TH AT THE ACTIVITIES CARRIED OUT BY THE ASSESSEE SQUARELY ENTITLED IT TO CLAIM DEDUCTION U/S 10A AND MORE PARTICULARLY, WHEN ON THE SAME SET OF ACTIVITIES, THE DEDUCTION HAS BEEN ALLOWED TO THE ASSESSEE IN EARLI ER THREE ASSESSMENT YEARS. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR] PLACING RELIANCE ON THE STAND OF LD. CIT(A) CONTENDED THAT THE NATURE OF ACTIVITIES CARRIED OUT BY THE ASSESSEE DID NOT ENTITLE HIM TO CLAIM THE SAID DEDUCTION AND FURTHER, OTHER ASSESSMENT YEARS HAVE BEEN REOPENED, WHEREVER POSSIBLE, BY THE REVENUE, TO DENY THE DEDU CTION TO THE ASSESSEE AND THEREFORE, THE STAND OF LD. CIT(A) AS QUITE JUSTIFIED. ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 7 5.1 WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS A ND PERUSED RELEVANT MATERIAL ON RECORD. GROUND NO. 1 HAS NOT BEEN CONTE STED BEFORE US. IN GROUND NOS. 8 TO 11, THE ASSESSEE IS AGGRIEVED BY N ON-ADJUDICATION OF CERTAIN QUANTUM ADDITIONS / CLAIMS BY LD. CIT(A). T HE REMAINING GROUNDS FROM 2 TO 7 ARE INTER-CONNECTED GROUNDS WHI CH ARE RELATED WITH DEDUCTION U/S 10A AND COMPUTATION THEREOF. THE SAME ARE TAKEN UP FIRST. 5.2 UPON PERUSAL OF ORDERS OF LOWER AUTHORITIES AND DOCUMENTS PLACED IN THE PAPER BOOK, WE FIND THAT THE PREMISES SITUATED AT 201-2224, 2 ND FLOOR, TOWER-B, DIAMOND DISTRICT, KODIHALLY VILLAGE AIRPORT ROAD, BANGALORE WAS BEING SHARED BY STP UNITS AS WELL AS NON-STP UNITS AND BOTH UNITS WERE ENGAGED IN PROVIDING SIMILAR KIND O F SOFTWARE SERVICES. THE LD. AO DISPUTED THE COMPUTATION OF PROFITS DERI VED BY THE ASSESSEE WHEREAS LD. CIT(A) OPINED THAT THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM ANY DEDUCTION U/S 10A AT ALL SINCE THE NATURE OF SE RVICES BEING RENDERED BY THE ASSESSEE WERE NOT COVERED WITHIN THE AMBIT O F STATUTORY PROVISIONS AS CONTAINED IN SECTION 10A. 5.3 AT THE OUTSET, SO FAR AS THE INTERPRETATION OF SECTION 10A READ WITH EXPLANATION 2(I) AND CBDT NOTIFICATION NO.S.O.890(E), DATED 26 TH SEPTEMBER, 2000 IS CONCERNED, WE WOULD LIKE TO REPRODUCE THE SCOPE AND AMBIT OF THESE PROVISIONS, AS SUCCINCTLY NOTED BY HONBLE DELHI HIGH COURT IN CIT VS. ML OUTSOURCING SERVICES PRIVATE LIMITED [228 TAXMAN 54] IN THE FOLLOWING MANNER:- 6. THE RELEVANT PROVISIONS OF SECTION 10A OF THE AC T READ AS UNDER:- '(1) SUBJECT TO THE PROVISIONS OF THIS SECTION, A D EDUCTION OF SUCH PROFITS AND GAINS AS ARE DERIVED BY AN UNDERTAKING FROM THE EXPORT OF ARTICLES OR THINGS OR COMPUTER SOFTWARE FOR A PERIOD OF 10 CONSECUTIVE ASSESSMENT YEARS BEGINNING WITH THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH THE UNDERTAKING BEGINS TO MANUFACTURE OR PRODUCE SUCH ARTICLES OR THINGS OR C OMPUTER SOFTWARE, AS THE CASE MAY BE SHALL BE ALLOWED FROM THE TOTAL INCOME OF TH E APPELLANT. ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 8 XXXXXXX XXXXXXX (2)THIS SECTION APPLIES TO ANY UNDERTAKING WHICH FU LFILLS 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 TE CHNOLOGY PARK (C) XXXXXXX' EXPLANATION 2 TO SECTION 10A 'COMPUTER SOFTWARE MEANS- (A) ANY COMPUTER PROGRAMME RECORDED ON ANY DISC, TA PE, PERFORATED MEDIA OR OTHER INFORMATION STORAGE DEVICE; OR (B) ANY CUSTOMIZED ELECTRONIC DATA OR ANY PRODUCT O R SERVICE OF A SIMILAR NATURE, AS MAY BE NOTIFIED BY THE BOARD.' 7. THE SAID PROVISION APPLIES TO AN UNDERTAKING WHI CH BEGINS TO MANUFACTURE OR PRODUCE SUCH ARTICLES OR THINGS OR COMPUTER SOFTWAR E FOR A PERIOD OF TEN CONSECUTIVE YEARS BEGINNING FROM THE ASSESSMENT YEAR IN WHICH T HE UNDERTAKING BEGINS TO MANUFACTURE OR PRODUCE SUCH ARTICLES, THINGS OR COM PUTER SOFTWARE. 'ARTICLES OR 'THINGS NECESSARILY REFER TO TANGIBLE GOODS. 'COMPUTER SOFT WARE SOME WOULD REGARD AS INTANGIBLE, BUT THERE IS A SUBSTANTIAL CASE LAW WHI CH HOLDS THAT SOFTWARE RECORDED ON ANY TAPE, DISC OR PERFORATED MEDIA ARE GOODS. THE T ERM 'COMPUTER SOFTWARE' HAS BEEN DEFINED, FOR THE PURPOSE OF THE SAID SECTION, IN EX PLANATION 2 TO SECTION 10A. CLAUSE (A) REFERS TO COMPUTER PROGRAMMES RECORDED IN DISC, TAP E OR PERFORATED MEDIA OR OTHER INFORMATION STORAGE DEVICE. CLAUSE (A) REFERS TO TH E GENERAL OR COMMON MEANING ASSOCIATED WITH THE TERM, 'COMPUTER SOFTWARE. HOWE VER, CLAUSE (B) EXPANDS THE MEANING OF THE TERM 'COMPUTER SOFTWARE AND BROADEN S IT TO INCLUDE ANY CUSTOMIZED ELECTRONIC DATA OR ANY PRODUCT OR SERVICE OF SIMILA R NATURE, AS MAY BE NOTIFIED BY THE BOARD. THE EXPRESSION, 'ANY CUSTOMIZED ELECTRONIC D ATA WOULD MEAN DATA, WHICH IS CUSTOMIZED; BUT IT NEED NOT BE COMPUTER SOFTWARE. P ROCESSING OR CUSTOMISATION, NORMALLY WOULD INVOLVE ASSIMILATION, CORRECTION, FI LTRATION, ETC. OF THE DATA. THE REQUIREMENT IS THAT IT SHOULD BE CUSTOMISED. HOWEVE R, CLAUSE (B) DOES NOT END WITH 'CUSTOMIZED ELECTRONIC DATA AND THE LEGISLATURE WA NTED TO FURTHER EXPAND THE SCOPE OF THE TERM, 'COMPUTER SOFTWARE AND THUS THE WIDE AND BROAD EXPRESSION, 'ANY PRODUCT OR SERVICE OF SIMILAR NATURE, AS MAY BE NOTIFIED BY TH E BOARD'. THE INTENTION AND DESIRE OF THE LEGISLATURE, WHICH IS PALPABLE AND LUCID FROM T HE WORDS AND EXPRESSION USED, IS THAT THE TERM, 'COMPUTER SOFTWARE SPECIFICALLY INCLUDES 'CUSTOMISED ELECTRONIC DATA AND ALSO 'ANY PRODUCT OR SERVICE OF SIMILAR NATURE NOTIFIED BY THE BOARD (CENTRAL BOARD OF DIRECT TAXES). IN OTHER WORDS, THE PARLIAMENT HAS LEFT IT TO THE BOARD TO NOTIFY THE PRODUCTS OR SERVICES OF SIMILAR NATURE, WHICH WOULD BE COVERED UNDER CLAUSE (B) AND TREATED AS 'CUSTOMIZED ELECTRONIC DATA FOR THE PURPOSES OF CL AUSE (B) TO EXPLANATION 2 TO SECTION 10A. 8. IN EXERCISE OF THE POWER CONFERRED UNDER SECTION 10A, THE BOARD HAS ISSUED A NOTIFICATION NO. S.O. 890 (E), DATED 26 TH SEPTEMBER, 2000, AND THE SAID NOTIFICATION READS AS UNDER:- 'S.O.890(E)- IN EXERCISE OF THE POWERS CONFERRED BY CLAUSE (B) OF ITEM (I) OF EXPLANATION 2 OF SECTION 10A, CLAUSE (B) OF ITEM (I ) OF EXPLANATION 2 OF SECTION ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 9 10A AND CLAUSE (B) EXPLANATION TO SECTION 80HHC OF THE INCOME TAX ACT, 1961 (43 OF 1961) THE CENTRAL BOARD OF DIRECT TAXES HEREBY S PECIFIES THE FOLLOWING INFORMATION TECHNOLOGY ENABLED PRODUCTS OR SERVICES AS THE CASE MAY BE FOR THE PURPOSE OF SAID CLAUSES NAMELY:- (I) BACK-OFFICE OPERATIONS; (II) CALL CENTRES; (III) CONTENT DEVELOPMENT OR ANIMATION; (IV) DATA PROCESSING; (V) ENGINEERING AND DESIGN; (VI) GEOGRAPHIC INFORMATION SYSTEM SERVICES; (VII) HUMAN RESOURCES SERVICES; (VIII) INSURANCE CLAIM PROCESSING; (IX) LEGAL DATABASES; (X) MEDICAL TRANSCRIPTION; (XI) PAYROLL; (XII) REMOTE MAINTENANCE; (XIII) REVENUE ACCOUNTING; (XIV) SUPPORT CENTRES; AND (XV) WEB-SITE SERVICES.' [NOTIFICATION NO. 11512/F.NO. 142/49/2000-TPL]' 9. A PERUSAL OF THE SAID NOTIFICATION WOULD INDICAT E THAT THE BOARD HAS INCLUDED SEVERAL DISTINCT TYPES OF SERVICES UNDER THE EXPRESSION, 'P RODUCT OR SERVICE OF SIMILAR NATURE, INFORMATION TECHNOLOGY ENABLED PRODUCT OR SERVICES' IN THE FIFTEEN CLAUSES. THE BOARD, IN THE NOTIFICATION, HAS USED THE EXPRESSION, 'INFO RMATION TECHNOLOGY ENABLED PRODUCT OR SERVICES. THUS, THE BOARD HAS UNDERSTOOD THAT PROD UCT OR SERVICES, TO BE INCLUDED WITHIN CLAUSE (B) OF EXPLANATION 2 TO SECTION 10A, NEED NOT BE COMPUTER SOFTWARE AS UNDERSTOOD IN THE COMMON PARLANCE OR EVEN CUSTOMIZE D ELECTRONIC DATA, AS GENERALLY UNDERSTOOD. ANY PRODUCT OR SERVICE OF SIMILAR NATUR E WOULD INCLUDE IN ITS AMBIT, PRODUCT AND SERVICES WHICH WERE ENABLED BY, I.E. WOULD RELY UPON, OR ARE DRIVEN BY INFORMATION TECHNOLOGY. THIS BECOMES CLEAR WHEN WE REFER TO THE WIDE AMBIT OF THE DIVERGENT AND VARIED SERVICES COVERED IN THE DIFFERENT CLAUSES LI KE, '(II) CALL CENTRES ... (VII) HUMAN RESOURCES SERVICES ... (VIII) INSURANCE CLAIM PROCE SSING ... (XII) REMOTE MAINTENANCE' AND, '(XIV) SUPPORT CENTRES'. THESE SERVICES WOULD NOT NECESSARILY AND PRIMARILY INVOLVE CUSTOMISED DATA PROCESSING, BUT NEVERTHELESS, THESE ARE INFORMATION TECHNOLOGY ENABLED SERVICES. IN CASE OF CALL CENTRES, QUERIES AND QUESTIONS FROM A CUSTOMER OF A THIRD COMPANY ARE ANSWERED BY AN EMPLOYEE OF THE AS SESSEE BASED IN INDIA. THE SAID TASK IS PERFORMED WITH THE AID AND HELP OF INFORMAT ION TECHNOLOGY BUT IT WOULD NOT BE A CASE OF CUSTOMISED ELECTRONIC DATA SERVICE OR EXPOR T THEREOF. SIMILAR EXERCISE MAY BE UNDERTAKEN IN CASE OF REMOTE MAINTENANCE OR SUPPORT CENTRES, WHICH ANSWER QUERIES AND GIVES SUGGESTIONS BY E-MAILS OR THROUGH VOICE A ND/OR VIDEO COMMUNICATIONS. THESE SERVICES WOULD NOT NORMALLY INVOLVE PROCESSIN G OR SENDING CUSTOMISED ELECTRONIC DATA ABROAD, YET THESE ARE INFORMATION TECHNOLOGY E NABLED SERVICES AND SPECIFICALLY COVERED UNDER THE NOTIFICATION. 10. LEANED SENIOR STANDING COUNSEL FOR THE REVENUE SUBMITTED THAT THE PRINCIPLE OF EJUSDEM GENERIS SHOULD APPLY. THE SAID DOCTRINE HAS NO APPLICATION IN THE PRESENT CASE FOR THE SIMPLE REASON THAT THERE IS NO ENUMERATION OF SPECIFIC WORDS OF A PARTICULAR CLASS OR CATEGORY PRECEDING THE WORDS, 'OR ANY OTHER PROD UCT OR SERVICE OF SIMILAR NATURE. IN CLAUSE (B), PRIOR TO THE SAID EXPRESSION, THE WORD USED IS, 'ANY CUSTOMISED ELECTRONIC ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 10 DATA. THUS, WE DO NOT FIND ANY GENUS IN THE EARLIE R PORTION OF CLAUSE (B) OF EXPLANATION 2 TO SECTION 10A OR THE SUBJECTS ENUMERATED THEREIN . PRINCIPLE OF NOSCITUR A SOCIIS, THOUGH BROADER IN APPLICATION, AGAIN IN THE FACTS O F THE PRESENT CASE WOULD HAVE NO APPLICATION. THE SAID RULE OF CONSTRUCTION, AS EXPL AINED BY LORD MACMILLAN, STATES THAT THE MEANING OF A WORD COULD BE JUDGED BY THE COMPAN Y IT KEEPS; AND, THEREFORE, IT IS A LEGITIMATE RULE OF CONSTRUCTION TO MAKE REFERENCE T O WORDS FOUND IN IMMEDIATE CONNECTION WITH THE WORDS TO BE INTERPRETED. HOWEVE R, THE SAID RULE OF CONSTRUCTION CANNOT PREVAIL OR BE APPLIED IN CASES WHEN THE WIDE R WORDS HAVE BEEN DELIBERATELY USED AND THE INTENTION OF THE LEGISLATION IS TO THE CONTRARY. IN THE PRESENT CASE, THE INTENTION OF THE LEGISLATION WOULD BE TO THE CONTRA RY AS IT HAD SPECIFIED THAT THE PRODUCT OR SERVICE OF SIMILAR NATURE COULD BE NOTIFIED BY T HE BOARD. IT WAS LEFT TO THE BOARD TO NOTIFY ANY PRODUCT OR SERVICE OF SIMILAR NATURE. TH E BOARD AS PER THE ACT IS THE HIGHEST AUTHORITY IN THE PYRAMID AS SET OUT IN SECTION 116 OF THE ACT. THE BOARD, WHILE ISSUING THE NOTIFICATION, WHICH IT WAS EMPOWERED AND AUTHOR ISED TO DO BY WAY OF DELEGATED LEGISLATION, HAS THOUGHT IT APPROPRIATE TO USE THE EXPRESSION, 'INFORMATION TECHNOLOGY ENABLED PRODUCTS AND SERVICES WITHOUT ANY REFERENC E TO 'DATA PROCESSING OR 'CUSTOMISED DATA PROCESSING. IT IS, THEREFORE, APPARENT THAT THE CONTENTION OF T HE REVENUE IS CLEARLY CONTRARY TO THE NOTIFICATION ISSUED BY THE BOARD, AND IS AT CROSS-P URPOSES WITH THE OBJECTIVE AND PURPOSE OF AND ISSUANCE OF NOTIFICATION S.O. 890 (E ), DATED 26TH SEPTEMBER, 2000. IT IS OBVIOUS THAT THE SAID NOTIFICATION HAS BEEN ISSUED TO PROMOTE OUTSOURCING SERVICE INDUSTRY IN INDIA, AS IT GENERATES EMPLOYMENT AND H ELPS THE COUNTRY TO EARN FOREIGN EXCHANGE. 11. APPROPRIATE, IN THIS REGARD, WOULD BE TO REFER TO THREE DECISIONS OF THE SUPREME COURT STARTING WITH RAINBOW STEELS LTD. MUZAFFARNAG AR & ANR. VS. C.S.T.; U.P. &ANR. (1981) 2 SCC 141, WHEREIN THE COURT CAUTIONED THAT THE PRINCIPLE OF NOSCITUR A SOCIIS, IN GENERAL SHOULD BE RESTRICTED, BUT APPLIED THE SAME STATING THAT THE WORD, 'OLD OCCURRING IN ENTRY NO. 15 SHOULD BE GIVEN A RESTRICTED MEANIN G - A SENSE ANALOGOUS TO THAT OF LESS GENERAL WORDS CLUBBED WITH IT. IT WAS SPECIFIE D THAT THE SAID PRINCIPLE WOULD BE APPLICABLE WHERE THERE ARE TWO OR MORE WORDS, SUSCE PTIBLE OF ANALOGOUS MEANING, CLUBBED TOGETHER AND THE INTENTION IS THAT THEY WOU LD BE UNDERSTOOD TO BE USED IN THEIR COGNATE SENSE, TAKING COLOUR FROM EACH OTHER, THERE BY MEANING THAT MORE GENERAL BEING RESTRICTED TO THAT OF A LESS GENERAL. REFEREN CE WAS MADE TO TWO DECISIONS IN STATE OF BOMBAY VS. HOSPITAL MAZDOOR SABHA AIR 1960 SC 61 0 AND CORPORATION OF THE CITY OF NAGPUR V. EMPLOYEES AIR 1960 SC 675 WHERE THE SA ID DOCTRINE HAD NOT BEEN APPLIED IN CONSTRUING THE DEFINITION OF 'INDUSTRY BECAUSE THE LEGISLATURE HAD DELIBERATELY USED WIDER WORDS AND DEFINED THE WORD CORRESPONDING LY WIDER. THE PRINCIPLE BEING THAT ONLY WHEN THE INTENTION OF THE LEGISLATURE IN ASSOC IATING WIDER WORDS WITH WORDS OF NARROWER SIGNIFICANCE IS IN DOUBT, OR OTHERWISE NOT CLEAR, THAT THE RULE OF CONSTRUCTION, NOSCITUR A SOCIIS CAN BE USEFULLY APPLIED. THEREFOR E, THE SAID DOCTRINE APPLIES WHEN THE WORDS USED ARE VAGUE, IMPRECISE, AND AMBIGUOUS, AND THERE IS NO INDICATION THAT THOSE HAVE BEEN DELIBERATELY USED FOR WIDER MEANING. AS N OTICED ABOVE, IN THE PRESENT CASE, THE EXPLANATION 2 HAS BEEN INSERTED TO GIVE WIDER M EANING AND THAT THIS WAS DELIBERATELY SO ENACTED BY THE LEGISLATURE. THE INT ENTION, THEREFORE, IS TO THE CONTRARY FOR THE DOCTRINE OF NOSCITUR A SOCIIS TO APPLY. 12. IN ROHIT PULP AND PAPER MILLS LTD. VS. COLLECTO R OF CENTRAL EXCISE, BARODA (1990) 3 SCC 447, THE SAID DOCTRINE WAS CONSIDERED AND REMAR KS OF DIPLOCK, C.J. IN LETANG VS. COOPER (1964) 2 ALL ER 929, DESCRIBING THE SAID DOC TRINE AS A TREACHEROUS ONE UNLESS ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 11 ONE KNOWS THE SOCEITAS TO WHICH THE SOCII BELONGS, WERE REFERRED TO. IT WAS NEVERTHELESS OBSERVED THAT THE SAID MAXIM OR PRECED ENTS ARE NOT TO BE MECHANICALLY APPLIED AND THEY ARE OF ASSISTANCE ONLY IN SO FAR A S THEY FURNISH GUIDANCE BY COMPENDIOUSLY SUMMING UP PRINCIPLES BY COMMON SENSE AND LOGIC. OBJECT AND PURPOSE OF THE NOTIFICATION OR THE LEGISLATION BEIN G CONSTRUED, HAVE TO BE TAKEN INTO ACCOUNT AND ALL PARTS ARE TO BE READ HARMONIOUSLY A ND NOT IN DEROGATION OF THAT PURPOSE. IN THE SAID CASE, THE SUPREME COURT ACCEPT ED THE ASSESSEES SUBMISSION THAT 'COATED PAPER REFERRED ONLY TO 'COATED PAPER USED FOR INDUSTRIAL PURPOSES AND NOT FOR PRINTING OR WRITING PAPER, OBSERVING THAT THE ITEMS MENTIONED IN THE GROUP WERE TOTALLY DISSIMILAR AND IT WAS IMPOSSIBLE TO SEE ANY THREAD RUNNING THROUGH THEM. PURPOSE AND OBJECT OF THE LEGISLATION WAS HIGHLIGHTED. 13. LASTLY, IN MUNICIPAL CORPORATION OF GREATER BOM BAY VS. BHARAT PETROLEUM CORPORATION LTD. (2002) 4 SCC 219, IT WAS OBSERVED THAT THE PRINCIPLE UNDERLYING NOSCITUR A SOCIIS IS THAT, TWO OR MORE WORDS WHICH ARE SUSCEPTIBLE OF ANALOGOUS MEANING WHEN COUPLED TOGETHER, ARE TO BE UNDERSTOOD AS USED IN THEIR COGNATE SENSE, TAKING AS THEY TAKE THEIR COLOUR FROM EACH OTHER. I N OTHER WORDS, MORE GENERAL WORDS ARE TO BE RESTRICTED TO A SENSE ANALOGOUS TO THE LE SS GENERAL. HOWEVER, THE SAID DOCTRINE ALONG WITH PRINCIPLES OF EJUSDEM GENERIS I S USEFUL IN THE MATTER OF CONSTRUCTION OF THE STATUTE OR ITS PROVISIONS BUT THE INTENT OF THE LEGISLATURE CANNOT BE ALTOGETHER IGNORED AND THE CONSTRUCTION WHICH REALLY SUBSERVES THE PURPOSE OF THE ENACTMENT, MUST BE ADOPTED RATHER THAN ONE WHICH DEFEATS IT. N O PART OF THE PROVISION SHOULD BE RENDERED SURPLUS OR OTIOSE. 14. THE BOARD HAS ISSUED A NOTIFICATION AS PER THE MANDATE AND EMPOWERMENT UNDER SECTION 10A AND THIS IS NOT A CASE OF ISSUE O F CIRCULAR UNDER SECTION 119 WHICH ARE ISSUED FOR DIFFERENT PURPOSES AND HAVE ANOTHER PURPORT. NOTIFICATION IS A PIECE OF DELEGATED LEGISLATION AND TO THAT EXTENT CANNOT BE CONTRARY TO THE PRINCIPAL ENACTMENT NOR CAN IT WHITTLE DOWN THE EFFECT OF THE SAME. ALB EIT, CLAUSE (B) OF EXPLANATION 2 TO SECTION 10A HAS BEEN WORDED IN A MANNER WHICH EN FORCES THE VIEW AND THE OPINION THAT LEGISLATURE, IN THEIR WISDOM, HAS LEFT IT TO T HE BOARD TO DECIDE WHICH PRODUCT OR SERVICES OF SIMILAR NATURE WOULD QUALIFY AND SHOULD BE TREATED AS FALLING UNDER CLAUSE (B), IN ADDITION TO CUSTOMISED DATA PROCESSING. THE INTENTION OF THE LEGISLATURE WAS NOT TO CONSTRAIN OR RESTRICT BUT TO ENABLE THE BOARD TO INCLUDE SEVERAL SERVICES OR PRODUCTS OF SIMILAR NATURE IN THE AMBIT OF THE PROVISION. THIS IS WHAT PRECISELY THE BOARD HAS DONE WHEN IT USED THE EXPRESSION, 'INFORMATION TECHNOLOG Y ENABLED PRODUCTS OR SERVICES IN THE NOTIFICATION. UPON PERUSAL OF THE SAME, WE FIND THAT HONBLE COUR T WHILE INTERPRETING THE LANGUAGE OF STATUTORY PROVISIONS AND CITED NOTI FICATION CAME TO CONCLUSION THAT THE PRINCIPLES OF EJUSDEM GENERIS OR PRINCIPLE OF NOSCITUR A SOCIIS COULD NOT BE APPLIED SINCE THERE WAS NO AMBIGUITY AND THE INTENTION OF THE LEGISLATURE WAS NOT TO CONSTRAIN O R RESTRICT THE SCOPE OF PRODUCTS OR SERVICES BUT TO ENABLE THE BOARD TO INC LUDE SEVERAL SERVICES ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 12 OR PRODUCTS OF SIMILAR NATURE IN THE AMBIT OF THE S TATED PROVISIONS. WE COMPLETELY AGREE WITH THE SAID INTERPRETATION OF ST ATUTORY PROVISION AS NOTED BY THE HONBLE COURT. NO OTHER CONTRARY JUDGM ENT IS AVAILABLE ON RECORD. ALTHOUGH WE ARE CONSCIOUS OF THE FACT THAT SLP AGAINST THE SAID JUDGMENT OF HONBLE COURT HAS BEEN ADMITTED BY HON BLE APEX COURT ON 06/03/2017 [2017 79 TAXMANN.COM 254], HOWEVER, UPON PERUSAL OF THE SAME, WE FIND THAT THE OPERATION OF SAID JUDGMENT H AS NOT BEEN SUSPENDED OR STAYED IN ANY MANNER BY HONBLE APEX C OURT AND ONLY A LEAVE HAS BEEN GRANTED AGAINST THE SAME. THEREFORE, COMPLETELY AGREEING WITH THE AFORESAID INTERPRETATION, WE PLAC E RELIANCE ON THE SAME. 5.4 IN THE ABOVE BACK DROP, WE FIND THAT THE NATURE OF SERVICES BEING RENDERED BY THE ASSESSEE DURING IMPUGNED AY HAS BEE N EXPLAINED BY THE ASSESSEE WHILE REPLYING TO QUESTION NO. 2 AND T HE SAME HAS BEEN EXTRACTED ON PAGE NUMBERS 9 TO 11 OF THE IMPUGNED ORDER. THE ASSESSEES PRIME CONTENTION IS THAT IT WAS ENGAGED IN THE BUSINESS OF PRODUCTION OF COMPUTER SOFTWARE AND ALSO ENGAGED IN RENDERING 4 TYPES OF NOTIFIED IT ENABLED SOFTWARE SERVICES VIZ. BACK OFFICE OPERATIONS, ENGINEERING & DESIGN, REMOTE MAINTENANCE AND SUPPOR T CENTERS WHICH ARE DULY COVERED IN THE AFORESAID NOTIFICATION ISSU ED BY CBDT . ON THE OTHER HAND, THE MAIN THRUST OF LD. CIT(A) IN REJECT ING THE ASSESSEES CLAIM IS THAT THE ASSESSEE FAILED TO DEMONSTRATE AN Y EVIDENCE OF MANUFACTURING OF ANY COMPUTER SOFTWARE / PROGRAM / CUSTOMIZED ELECTRONIC DATA / PROJECT OR SERVICES OF SIMILAR NA TURE AND FURTHER, THE SERVICES RENDERED AS AFORESAID DO NOT REVEAL PRODUC TION OF ANY COMPUTER SOFTWARE OR RELATED SERVICES OF SIMILAR NATURE. THE OTHER ARGUMENT OF LD. ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 13 CIT(A) IS THAT THE ASSESSEE HAS ONLY RENDERED MANAGERIAL OR CUSTOMER ORIENTED SERVICES WHICH WERE BASED ON SOFTWARE PRODUCED / PROVIDED B Y ITS SISTER CONCERNS AND THAT TOO, ON SUB-CONTRACT B ASIS. HOWEVER, AS NOTED BY US AS ABOVE, MANUFACTURE OF COMPUTER SOFTW ARE OR PROGRAM WAS NOT AN ESSENTIAL CONDITION RATHER THE CBDT NOTIFICATION COVERED WIDE SPECTRUM OF NOTIFIED SERVICES WHICH WERE ELIGIBLE F OR DEDUCTION U/S 10A. WE FIND THAT LD. CIT(A) HAS NOT APPRECIATED THE CLA IM OF THE ASSESSEE VIS--VIS AFORESAID CBDT INSTRUCTIONS. IT IS ALSO N OTED THAT OTHER YEARS HAVE BEEN REOPENED BY THE REVENUE TO DENY THE SAID DEDUCTION TO THE ASSESSEE. FURTHER, THE ASSESSEES CLAIM AS RAISED I N GROUND NUMBERS 8 TO 11 HAVE NOT BEEN ADJUDICATED BY LD. CIT(A). THER EFORE, KEEPING IN VIEW THESE MULTIPLE FACTORS, WE DEEM IT FIT TO REST ORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR RE-APPRECIATION OF ASSES SEES CLAIM AND RE- ADJUDICATE THE SAME AS PER LAW WITH A DIRECTION TO ASSESSEE TO SUBSTANTIATE HIS CLAIM. 6. RESULTANTLY, THE ASSESSEES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH APRIL, 2018 SD/- SD/- (MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04 .04.2018 SR.PS:- THIRUMALESH ITA NO.4282/MUM/2016 BRISTLECONE INDIA LIMITED ASSESSMENT YEAR 2009-10 14 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. !$- , - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI