ITO, Ward - 7(2), Kolkata, Kolkata V. M/s. Wizard Enterprises Pvt. Ltd., Kolkata

ITA 628/KOL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4986 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 08-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Benefit of exemption
• Section: 10; 143(3); 10B

Judgement Text

ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER , AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 628/KOL/2011 A.Y 2007-08 I.T.O WARD 7(2), KOLKATA VS. M/S. WIZARD ENTERPRISES PVT. LTD PAN: AAACW26 06B (APPELLANT) ( RESPONDENT) C.O NO. 134/KOL/2013 [ ARISING OUT OF ITA NO. 628/KOL/2011 A.Y 2007-08 M/S. WIZARD ENTERPRISES PVT. LTD VS. I.T.O WARD 7(2), KOLKATA (CROSS OBJECTOR/ASSESSEE) (RESPONDENT) ITA NO. 65/KOL/2012 A.Y 2008-09 I.T.O WARD 7(2), KOLKATA VS. M/S. WIZARD ENTERPRISES PVT. LTD PAN: AAACW26 06B (APPELLANT) ( RESPONDENT) C.O NO. 133/KOL/2013 [ ARISING OUT OF ITA NO. 65/KOL/2012 A.Y 2008-09 M/S. WIZARD ENTERPRISES PVT. LTD VS. I.T.O WARD 7(2), KOLKATA (CROSS OBJECTOR/ASSESSEE) (RESPONDENT) FOR THE APPELLANT/DEPARTMENT: NONE A PPEARED ON BEHALF OF THE REVENUE FOR THE CROSS OBJECTOR/ASSESSEE: SHRI SUBASH AGARWAL, ADVOCATE, LD.AR DATE OF HEARING: 08-02-2016 DATE OF PRONOUNCEMENT: 04 -03 -2016 ORDER SHRI M.BALAGANESH, AM BOTH THE APPEALS OF THE REVENUE AND RESPECTIVE CROSS OBJECTIONS OF THE ASSESSEE ARE ARISING OUT OF THE SEPARATE ORDERS OF THE LEARN ED CIT(A)-VIII, KOLKATA IN APPEAL NO.329/CIT(A)-VIII/KOL/09-10 DATED 20-12-2010 AN D APPEAL NO. 193/CIT(A)- VIII/KOL/10-11 DATED 12-10-2011 FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09 ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 2 RESPECTIVELY AGAINST THE SEPARATE ORDERS OF ASSESSM ENT FRAMED BY THE LD.AO U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT). 2. AS THE ISSUES INVOLVED ARE IDENTICAL IN ALL THE ASSESSMENT YEARS UNDER APPEAL, BOTH THE APPEALS OF THE REVENUE AND CROSS OBJECTION S OF THE ASSESSEE ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS CONSOLIDATED ORD ER FOR THE SAKE OF CONVENIENCE. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN BOTH THE APPEALS:- ITA NO. 628/KOL/2011 A.Y 2007-08 (BY THE REVENUE) 1. THAT THE LD. CIT(APPEALS)-VIII, KOLKATA HAS ER RED ON FACTS AND IN LAW IN DELETING THE DISALLOWANCE MADE BY THE AO, OF THE EXEMPTION CLAIMED BY THE ASSESSEE U/S. 10B, ON THE GROUND THA T THE ASSESSEE COMPANY DID NOT HAVE ANY CERTIFICATE OF APPROVAL FROM THE BOARD OF APPROVAL APPOINTED IN THAT REGARD BY THE CENTRAL GOVERNMENT AND ALSO THE A.R OF THE ASSESSEE, DURING THE COURSE OF SCRUTINY PROCEED INGS, COULD NOT SUBMIT ANY RATIFICATION OBTAINED FROM THE BOARD OF APPRO VAL AS REQUIRED AS PER THE CLARIFICATION OF THE CBDT DATED 09.03.09. ITA NO. 65/KOL/2012 A.Y 2008-09 (BY THE REVENUE) 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE CIT(APPEALS) HAS ERRED IN LAW IN HOLDING THAT EXEMP TION U/S. 10B IS ALLOWABLE WITHOUT RATIFICATION OF THE EOU SCHEME AP PROVED BY S.T.P.I BY THE I.M.S.C OF D.I.T BOARD OF APPROVAL AS PER PROVI SIONS OF LAW. 2. THAT, ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE AND IN LAW,, THE CIT(A) HAS ERRED IN HOLDING THAT EXEMPTION U/S. 10 B IS ALLOWABLE EVEN WHEN THE MANDATORY PROVISION OF RATIFICATION OF THE EOU SCHEME IS NOT FULFILLED IN VIOLATION OF THE PROVISIONS OF LAW. 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN BOTH THE COS:- CO NO. 134/KOL/2011 A.Y 2007-08 [ ITA NO. 628/KOL/ 2011] (BY THE ASSESSEE) 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO H AVE ALLOWED DEDUCTION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 AND NOT UNDER SECTION 10B OF THE INCOME TAX ACT, 1961 AS APPELLAN T HAS COMMENCED ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 3 CALL CENTRE OPERATIONS FROM SOFTWARE TECHNOLOGY PAR K (STP) WITH EFFECT FROM 16TH FEBRUARY, 2006 SET UP IN ACCORDANCE WITH STP SCHEME OF THE GOVERNMENT OF INDIA. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO H AVE ALLOWED DEDUCTION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 AND NOT UNDER SECTION 10B OF THE INCOME TAX ACT, 1961 AS APPELLAN T WAS APPROVED BY THE DIRECTOR UNDER THE SOFTWARE TECHNOLOGY PARKS SCHEME AND THE SAID DIRECTOR WAS FUNCTIONING UNDER THE DELEGATED AUTHOR ITY OF THE INTER- MINISTERIAL STANDING COMMITTEE. CO NO. 133/KOL/2013 A.Y 2008-09 [ ITA NO.65/KOL/201 2 ] (BY THE ASSESSEE) 1. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ALLOWED DEDUCTION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 AND N OT UNDER SECTION 10B OF THE INCOME TAX ACT, 1961 AS APPELLANT HAS COMMEN CED CALL CENTRE OPERATIONS FROM SOFTWARE TECHNOLOGY PARK (STP) WITH EFFECT FROM 16TH FEBRUARY, 2006 SET UP IN ACCORDANCE WITH STP SCHEME OF THE GOVERNMENT OF INDIA. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ALLOWED DEDUCTION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 AND N OT UNDER SECTION 10B OF THE INCOME TAX ACT, 1961 AS APPELLANT WAS APPROV ED BY THE DIRECTOR UNDER THE SOFTWARE TECHNOLOGY PARKS SCHEME AND THE SAID DIRECTOR WAS FUNCTIONING UNDER THE DELEGATED AUTHORITY OF THE IN TER-MINISTERIAL STANDING COMMITTEE. 5. THE ONLY ISSUE TO BE DECIDED IN THESE APPEALS O F REVENUE AND CROSS OBJECTIONS OF THE ASSESSEE IS AS TO WHETHER THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION U/S. 10B/10A OF THE ACT IN RESPECT OF PROFITS DERIVED FR OM ITS CALL CENTRE OPERATIONS FROM UNIT REGISTERED WITH STPI AS SOFTWARE TECHNOLOGY P ARK OF INDIA [ IN SHORT STPI] AS 100% EXPORT ORIENTED UNIT [EOU]. ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 4 6. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASS ESSEE CLAIMED EXEMPTION U/S. 10B OF THE ACT FROM ITS CALL CENTRE OPERATION IN THE RE TURN OF INCOME. THE ASSESSEE STARTED ITS CALL CENTRE OPERATION W.E.F 16-02-2006. THE ASS ESSEE CLAIMED DEDUCTION U/S. 10B OF THE ACT FOR THE ASSESSMENT YEAR 2006-07 ( BEING THE FIRST YEAR OF ITS CLAIM), WHICH WAS ACCEPTED BY THE LD.AO U/S. 143(1) OF THE ACT. BEFO RE THE LD.AO THE ASSESSEE PRODUCED THE FOLLOWING DOCUMENTS IN SUPPORT OF ITS CLAIM FOR THE ASSESSMENT YEARS UNDER CONSIDERATION:- I) COPY OF LETTER OF PERMISSION AS 100% EXPORT ORI ENTED UNIT UNDER STP SCHEME FOR THE I.T. ENABLED SERVICES ISSUED BY THE DIRECTOR, STPI, KOLKATA (SPONSORED BY THE MINISTRY OF COMMUNICATION & INFOR MATION TECHNOLOGY, GOVT. OF INDIA VIDE LOP NO. STPK: DIR:441: 2005-06: 1548 DT.10.01.06. II) COPY OF LEGAL AGREEMENT DT.20.01.06 MADE BETWE EN M/S WIZARD ENTERPRISES PVT. LTD., A 100% EXPORT ORIENTED UNIT HAVING ITS R EGISTERED OFFICE AT 3RD FLOOR, ANUJ CHAMBERS, 24 PARK STREET, KOLKATA-16 (R EFERRED AS 'THE UNIT') OF THE ONE PART AND THE PRESIDENT OF INDIA (REFERRED A S THE GOVERNMENT ) OF THE OTHER PART. III) COPY OF GREEN CARD NO. STPK/233/06 DT.16.02.06 WHEREIN IT IS MENTIONED THAT THE COMPANY IS PERMITTED TO I.T. ENABLED SERV ICES FOR 100%' EXPORT PURPOSE (CALL CENTRE) FOR THE PERIOD FROM 16.02.06 TO 09.01.2011. IV) A COPY .OF LETTER ISSUED BY THE DY, MANAGER ST PI, KOLKATA VIDE NO. STPK: DIR:441: 2006-07: 108 DT.03.05.06 INFORMING THE COM PANY THAT THE EXPORT PERFORMANCE UNDER THE SCHEME OF STP VIDE ITS LOP NO STPK: 01 R:441: 2005- 06: 1548 DT. 10.01.06 AND THE LEGAL AGREEMENT EXECU TED ON 20.01.2006 WILL BE CONSIDERED AS 100% EOU ACTIVITY WITH EFFECT FROM TH E DATE OF ITS REGISTRATION UNDER STP I.E. 10.01.2006. V) FORM NO. 56G [RULE 16E], A REPORT REQUIRED U/S 1 O B OF THE INCOME TAX ACT, 1961. VI) COPY OF CERTIFICATE OF IMPORTER-EXPORTER CODE ( IEC) DT. 12.03.2003. VII) COPY OF FORM OF APPLICATION FOR GRANT OF LICEN CE FOR PUBLIC PRIVATE BONDED WAREHOUSE- VIZ. SECTION 57/58 OF THE CUSTOMS ACT. ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 5 VIII) COPY OF A LETTER DT. 03.04.2007, ISSUED BY TH E ASSTT. DIRECTOR, DEPT. OF TELECOM, GOVT. OF INDIA, NEW DELHI ON THE SUBJECT, I.E. REGISTRATION FOR SETTING UP AN INTERNATIONAL CALL CENTRE AT KOLKATA BY THE C OMPANY. 7. THE LD.AO OBSERVED THAT THE ASSESSEE DID NOT HAV E CERTIFICATE OF APPROVAL FROM THE BOARD AS 100% EXPORT ORIENTED UNIT (EOU)/ UNDE RTAKING APPROVED BY THE BOARD APPOINTED IN THIS BEHALF BY THE CENTRAL GOVERNMEN T AND IN ACCORDANCE WITH SECTION 14 OF THE INDUSTRIES (DEVELOPMENT & REGULATION) ACT (IDRA), 1951 AND THE RULES MADE UNDER THAT ACT FOR THE PURPOSE OF GETTING EXE MPTION ALLOWABLE U/S. 10B OF THE ACT. ACCORDINGLY, THE ASSESSEE WAS ASKED TO SHOW CA USE WHY THE DEDUCTION U/S. 10B SHOULD NOT BE DENIED. IN RESPONSE TO THE SAME, TH E ASSESSEE ARGUED THAT THE POWER TO GRANT OF APPROVAL U/S. 14 OF THE INDUSTRIES (DEVE LOPMENT & REGULATION) ACT (IDRA), 1951 HAS BEEN DELEGATED TO THE DEVELOPMENT COMMISS IONER AND APPROVAL GRANTED BY THE DEVELOPMENT COMMISSIONER SHALL BE CONSIDERED VALID FOR THE PURPOSE OF EXEMPTION U/S. 10B. HE ALSO STATED THAT IN THE C ASE OF UNITS UNDER EHTP/STP SCHEME NECESSARY APPROVAL/PERMISSION SHALL BE GRANT ED BY THE OFFICER DESIGNATED BY THE MINISTRY OF COMMUNICATION AND INFORMATION TECHN OLOGY, DEPTT. OF INFORMATION TECHNOLOGY FOR THE PURPOSE INSTEAD OF DEVELOPMENT COMMISSIONER BY THE INTER MINISTERIAL STANDING COMMITTEE(IMSC) INSTEAD OF BOA (BOARD OF APPROVAL). HE ALSO STATED THAT IN THE INSTANT CASE APPROVAL UNDER THE STP SCHEME IS GRANTED BY THE DESIGNATED OFFICER, DEPTT. OF INFORMATION TECHNOLOG Y AND BY THE INTER MINISTERIAL STANDING COMMITTEE (IMSC). HE FURTHER ARGUED THAT THE APPROVAL GRANTED TO THE ASSESSEE UNDER STP SCHEME COMPLIES WITH ALL THE REQ UIREMENTS CONTEMPLATED U/S. 10B OF THE ACT WHEN READ WITH INDUSTRIAL (DEVELOPMENT) & REGULATIONS) ACT, 1951, FOREIGN TRADE POLICY 2004-2009, HAND BOOK PROCEDURE (VOL.-1) AND APPENDIX TO THE HAND BOOK. IN OTHER WORDS, IT WAS ARGUED THAT AS THE UNIT OF THE ASSESSEE AT KOLKATA WAS APPROVED AS 100% EXPORT ORIENTED UNIT (EOU) UN DER THE STP SCHEME, IT MUST BE HELD THAT IT WAS SO APPROVED AS 100% EOU BY TH E BOARD REFERRED TO CLAUSE (I) OF EXPLANATION TO SECTION 10(B) OF THE ACT. THE LD. AO NOT BEING SATISFIED WITH THE ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 6 ASSESSEES REPLY DENIED TO GRANT BENEFIT OF DEDUCTI ON U/S. 10B OF THE ACT. ON 1 ST APPEAL, BEFORE THE LD.CIT(A) THE ASSESSEE REITERATED ITS SU BMISSIONS AS MADE BEFORE THE LD.AO AND ALSO MADE AN ALTERNATIVE CLAIM THAT THE ASSESSE E IS ALSO ENTITLED FOR DEDUCTION U/S. 10A OF THE ACT. ALL THE CONDITIONS STIPULATED THE REIN WERE DULY COMPLIED WITH BY THE ASSESSEE. THE LD. CIT(A) BY PLACING HIS RELIANCE O N THE EARLIER ORDER OF LD. CIT(A)-II, KOLKATA IN APPEAL NO.78/A-11/2(2)/05-06 IN THE CASE OF ARB SOFTWARE (INDIA) LTD FOR THE ASSESSMENT YEAR 2003-04 UNDER SIMILAR CIRCUMST ANCES HAD GRANTED THE BENEFIT OF DEDUCTION U/S. 10B OF THE ACT. AGGRIEVED, THE REVE NUE IS IN APPEAL BEFORE US AND THE ASSESSEE HAS ALSO FILED CROSS OBJECTION FOR ITS ALT ERNATIVE CLAIM OF DEDUCTION U/S. 10A OF THE ACT. 8. NONE APPEARED ON BEHALF OF THE REVENUE, BUT ADJO URNMENT PETITION FILED BY THE REVENUE IS REJECTED BY THE BENCH AS THE LEARNED SEN IOR DR HAD SOUGHT ADJOURNMENT FOR 16 CASES OUT OF 21 CASES LISTED IN THE BENCH. SO WE PROCEED TO DISPOSE OFF THE APPEALS AND CROSS OBJECTIONS AFTER HEARING THE LD.AR AND P ERUSING THE MATERIALS AVAILABLE ON RECORD ON MERITS. 9. THE LD.AR VEHEMENTLY SUPPORTED THE ORDERS OF THE LD.AO IN GRANTING DEDUCTION AND THE SUBMISSIONS MADE THEREIN. HE ALSO PLACED HI S RELIANCE ON THE DECISION OF THE ITAT CHANDIGARH IN THE CASE OF BEBO TECHNOLOGIES (P ) LTD VS. JCIT IN ITA NOS. 1115/CHD/2008, 116/CHD/2009 DATED 29-04-2011 REPORT ED IN 2011 (4) TMI 870-ITAT, CHANDIGARH , IN SUPPORT OF ITS CONTENTION. 10. WE HAVE HEARD THE LD.AR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK AS FILED BY THE ASSESSEE B EFORE US. THE FACTS AS STATED HEREIN ABOVE REMAIN UNDISPUTED AND HENCE THE SAME ARE NO T REITERATED FOR THE SAKE OF BREVITY. WE FIND FROM PAGE 43-46 OF THE ASSESSEES PAPER BOOK CONTAINING AN AGREEMENT ENTERED INTO BY THE ASSESSEE FOR SOFTWA RE EXPORT TECHNOLOGY PARK WITH THE ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 7 CENTRAL GOVERNMENT ON 20 TH DAY OF JANUARY, 2006, WHEREIN THE FOLLOWING CLAUSE S REQUIRE CAREFUL CONSIDERATION:- WHEREAS THE GOVERNMENT HAVE COMMUNICATED VIDE STP:D IR 441:2005-06: 1548 DATED 10.01.2006 TO THE UNIT THE TERMS AND CONDITIONS FOR SETTING UP OF THE 100% EXPORT ORIEN TED SOFTWARE TECHNOLOGY PARK UNDER SOFTWARE EXPORT SCHEME OF MIN ISTRY OF COMMUNICATIONS & INFORMATION TECHNOLOGY FOR THE EXE CUTION OF IT ENABLED SERVICES AND THE UNIT HAS DULY ACCEPTED TH E SAID TERMS AND CONDITIONS VIDE THEIR LETTER NO. NIL DATED 13 TH JANUARY, 2006. AND WHEREAS THE UNIT HAS BEEN GRANTED THE STATUS O F 100% EXPORT ORIENTED UNIT AS DEFINED IN MINISTRY OF COM MERCE RESOLUTION NO. 33/(RE)/92-97 DATED 2 ND MARCH, 1994 IN TECHNOLOGY PARK. AS WHEREAS THE UNIT HAS BEEN ALLOWED TO IMPORT THE CAPITAL GOODS, RAW MATERIALS, SPARES AND CONSUMABLES ETC FR EE OF IMPORT DUTY FOR THE EXECUTION OF IT ENABLED SERVICES FOR E XPORT THROUGH SATELLITE DATA LINK OR IN FORM OF PHYSICAL EXPORT. 11. WE FIND FROM PAGE 47-48 OF THE PAPER BOOK REGAR DING COPY OF THE GREEN CARD ISSUED BY THE DESIGNATED OFFICER, GOVT. OF INDIA, D EPTT. OF INFORMATION TECHNOLOGY AND CHAIRMAN, INTER-MINISTERIAL STANDING COMMITTEE ON S OFTWARE TECHNOLOGY PARK SCHEME VIDE GREEN CARD NUMBER STPK/233/06 DATED 16 TH FEB., 2006 AS AN UNIT APPROVED UNDER THE STP SCHEME OF THE GOVT. OF INDIA AS 100% EXPORT ORIENTED UNIT TO CARRY OUT IT ENABLED SERVICES (CALL CENTRE). IT WOULD BE PERT INENT TO REPRODUCE THE SAME HEREIN BELOW:- SL NO. 6047 GREEN CARD NO.STPK/233/06 DATED THE FEBRUARY 16 TH 2006 SOFTWARE TECHNOLOGY PARK(STP) UNIT HAS BEEN APPROVED UNDER THE STP SCHEME OF THE GOVT. OF INDIA AS A 100% EXPORT ORIENTED UNIT FOR COMPUTER SOFTWARE. THIS UNIT IS ENTITLED TO TOP PRIORITY TREATMENT FROM ALL CONCERNED CENTRAL AND STATE GOVERNMENT DEPARTMENTS AND OTHER ORGANISATIONS IN ALL MATTERS RELATING TO THE PROJECT ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 8 SD/- DESIGNATED OFFICER FOR SECRETARY TO THE GOVT OF INDIA DEPARTMENT OF INFORMATION TECHNOLOGY AND CHAIRMAN, INTERMINISTERIAL STANDING COMMITTEE ON SOFTWARE TECHNOLOGY PARK SCHEME. 11.1 THE ABOVE GREEN CARD APPROVAL HAS TO BE UNDERS TOOD IN ITS TRUE AND FULLEST SENSE IN THE LARGER INTEREST AND PURPOSE BEHIND SETTING U P A UNIT AND THE ALLIED BENEFITS IT IS LIKELY TO BRING. THESE EXPORT BENEFITS WOULD AUTOM ATICALLY BE ELIGIBLE FOR DEDUCTION U/S. 10B OF THE ACT. OTHERWISE, THE PURPOSE OF GRAN TING THE SAME FOR SETTING UP A UNIT AND REGISTERING WITH STP AS 100% EOU STATUS WOULD G ET DEFEATED. 12. WE ALSO FIND LOT OF FORCE IN THE ALTERNATIVE ARGUMENT MADE BY THE LD.AR THAT THE ASSESSEE COMPANY BEING REGISTERED WITH STP IS ENTITLED FOR CLAIMING DEDUCTION U/S. 10A OF THE ACT. IN THIS CONNECTION, THE CBDTS INST RUCTION NO. 1/2006 DATED 31-03- 2006 ASSUMES GREAT SIGNIFICANCE. THE SAME IS REPROD UCED HEREIN BELOW FOR BETTER APPRAISAL :- SECTIONS 10A AND 10B FREE TRADE ZONES / 100% EXPORT ORIENTED UNDERTAKING S, EXEMPTION FOR NEW INDUSTRIAL UNDERTAKINGS IN [SECS.10A AND 10B] DEDUCTION TO STPS - INSTANCES HAVE BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT A LARGE NUMBER OF UNITS REGISTERED/ APPROVED BY THE DIRECTORS OF THE STPI ARE CLAIMING DEDUCTION UNDER SECTION 10A WHEREAS THE ST P SCHEME REQUIRES APPROVAL BY THE INTER-MINISTERIAL STANDING COMMITTE E OF THE DEPARTMENT OF ELECTRONICS. ACCORDINGLY, THE CASES OF SUCH CLAIMAN TS HAVE BEEN REOPENED BY THE AUTHORITIES. THE MATTER HAS BEEN EXAMINED IN CONSULTATION WITH T HE OFFICERS OF THE DEPARTMENT OF INFORMATION TECHNOLOGY (EARLIER, DEPA RTMENT 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 C ONSIDER THE APPROVALS BY DIRECTOR OF STPS ISSUED IN THE PAST. THEREFORE, WIT H A VIEW TO AVOID INFRUCTUOUS DEMAND RAISED IN ASSESSMENT AND REASSESSMENT OF ASS ESSEES CLAIMING DEDUCTION UNDER SECTION 10A, IT HAS BEEN DECIDED THAT THE CLA IM OF DEDUCTION UNDER SECTION 10A, SHALL NOT BE DENIED TO STP UNITS ONLY ON THE G ROUND THAT THE ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 9 APPROVAL/REGISTRATION TO SUCH UNITS HAS BEEN GRANTE D BY THE DIRECTORS OF SOFTWARE TECHNOLOGY PARKS. HOWEVER, IT HAS TO BE EN SURED THAT ALL OTHER CONDITIONS SPECIFIED IN SECTION L0A ARE FULLY SATI SFIED BEFORE ALLOWING ANY SUCH CLAIM. IN CASES WHERE ASSESSMENTS/REASSESSMENTS HAVE ALREA DY 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 INT ER-MINISTERIAL STANDING COMMITTEE IN ACCORDANCE WITH THE SCHEME, THE DEMAND SO ARISING SHOULD BE KEPT IN ABEYANCE UNTIL FURTHER ORDERS. 13. IT IS NOT IN DISPUTE THAT A CALL CENTRE OPERAT ION HAS BEEN DULY NOTIFIED AS IT ENABLED SERVICES AND THEREBY ELIGIBLE FOR DEDUCTIO N FOR 100% EXPORT ORIENTED UNIT CONTEMPLATED U/S. 10A/10B OF THE ACT. 14. WE ALSO FIND FROM PAGE 51 OF THE PAPER BOOK CON TAINING A LETTER DT. 02-09-2011 ADDRESSED TO THE ASSESSEE BY SOFTWARE TECHNOLOGY PA RKS OF INDIA (STPI), MINISTRY OF COMMUNICATION & INFORMATION TECHNOLOGY, DEPT OF IT, GOVT. OF INDIA, KOLKATA REGARDING REGISTRATION FOR SETTING UP STP UNIT ( 100% EXPORT ORIENTED UNIT UNDER STP SCHEME). THE SAME IS REPRODUCED HERE IN BELOW F OR THE SAKE OF CONVENIENCE:- SOFTWARE TECHNOLOGY PARKS OF INDIA MINISTRY OF COMMUNICATION & INFORMATION TECHNOLOGY, DEPT OF IT, GOVT. OF INDIA PLOT NO.5/1 DP SECTOR-V, SALT LAKE, KOLKATA-700 091 PH: 91-33-2367-3598/99-2367 3798/99, FAX [phone] EMAIL: [e-mail]/URLHTTP://WWW.KOL.STP.IN TO THE DIRECTOR WIZARD ENTERPRISES PVT. LTD. 5, LAKE AVENUE, KOLKATA - 700026 SUB: YOUR STP UNIT APPROVAL RATIFICATION REG. REF: YOUR LETTER DT: 29.08.2011 SIR, WITH REFERENCE TO ABOVE AND DISCUSSIONS WITH YOUR O FFICIALS, THE FACTS W.R.T, YOUR STP UNIT REGISTRATION IS PRODUCED BELOW: ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 10 1. YOUR UNIT 'WIZARD ENTERPRISES PVT. LTD.' IS REGI STERED AS A 100% EXPORT ORIENTED UNIT UNDER STP SCHEME VIDE LOP NO. STPK:DIR:441:200 5-06:1548 DT: 10.01.2006 AS PER NOTIFICATION NO. 33/(RE)(92-97 DT: 22.03.1994 R EAD WITH SUBSEQUENT AMENDMENTS AND EXIM POLICY ( FOREIGN TRADE POLICY. 2. AS PER PARA 6.26 OF FOREIGN TRADE POLICY 2004-20 09: 'IN THE CASE OF UNITS UNDER EHTP /STP SCHEMES, NECE SSARY APPROVAL/ PERMISSION UNDER RELEVANT PARAGRAPHS OF THIS CHAPTE R SHALL BE GRANTED BY THE OFFICER DESIGNATED BY THE MINISTRY OF COMMUNICA TION AND INFORMATION TECHNOLOGY, DEPARTMENT OF INFORMATION TECHNOLOGY IN STEAD OF THE DEVELOPMENT COMMISSIONER AND BY THE INTER-MINISTERI AL STANDING COMMITTEE (IMSC) INSTEAD OF BOA: 3. APPROVAL OF YOUR UNIT IS GRANTED BY DIRECTOR, ST PI AS PER POWERS DELEGATED ON HIM BY THE IMSC. THANKING YOU. YOURS FAITHFULLY, SD/- [MANJIT NAYAK] OFFICER- IN -CHARGE COPY TO: 1. THE DIRECTOR, STPI-KOLKATA / GUWAHATI 15. IT WAS ALSO BROUGHT TO OUR ATTENTION BY THE L D.AR THAT THE INSTRUCTION (F.NO.178/19/2008-IT-I) DATED 9 TH MARCH 2009 ISSUED BY CBDT CLARIFIES THAT THE POWER TO GRANT APPROVAL U/S. 14 OF INDUSTRIAL (DE VELOPMENT & REGULATIONS) ACT, 1951 HAS BEEN DELEGATED TO DEVELOPMENT COMMISSIONERS AND APPROVAL GRANTED BY THE DEVELOPMENT COMMISSIONER SHALL BE CONSIDERED VALID FOR THE PURPOSE OF EXEMPTION U/S. 10B. IT WOULD BE PERTINENT TO NOTE THAT IN TH E INSTANT CASE APPROVAL UNDER THE STP SCHEME IS GRANTED BY THE DESIGNATED OFFICER, DEPAR TMENT OF INFORMATION TECHNOLOGY AND BY THE INTER-MINISTERIAL STANDING COMMITTEE (IM SC). HENCE, THE APPROVAL GRANTED UNDER STP SCHEME COMPLIES WITH ALL THE REQUIREMENT S CONTEMPLATED U/S. 10B OF THE ACT WHEN READ WITH INDUSTRIAL (DEVELOPMENT & REGUL ATIONS) ACT, 1951, FOREIGN TRADE POLICY 2004-2009, HAND BOOK OF PROCEDURES (VO LUME-I) & APPENDIX TO THE HANDBOOK. WE ALSO FIND THAT THE LD.AR FURTHER A RGUED BEFORE US THAT TO THE BEST OF HIS KNOWLEDGE THE ORDER PASSED UNDER SIMILAR CIRCUM STANCES BY THE LD.CIT(A)-II, ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 11 KOLKATA IN THE CASE OF ARB SOFTWARE (INDIA) LTD FOR THE ASSESSMENT YEAR 2003-04 HAS NOT BEEN APPEALED BY THE REVENUE BEFORE THE TRIBUNA L. WE FIND FORCE IN THE CASE LAW AS RELIED UPON BY THE ASSESSEE ON THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT CHANDIGARH (SUPRA) IN THE CASE OF BEBO TECHNOLOGIES P.LTD VS. JCIT (SUPRA) , WHEREIN THE LEARNED AO DENIED DEDUCTION U/S. 10B TO THE ASS ESSEE ON THE GROUND THAT NO APPROVAL WAS OBTAINED FROM THE BOARD APPOINTED BY T HE CENTRAL GOVT. IN EXERCISE OF POWER CONFERRED BY SECTION 14 OF INDUSTRIAL (DEVE LOPMENT & REGULATION) ACT 1951 & RULES MADE UNDER THAT ACT. IT WAS ULTIMATELY HELD IN THAT CASE AS UNDER:- 39. THE LD. DR FOR THE REVENUE BEFORE US HAS FAIL ED TO POINT OUT ANY CONTRARY EVIDENCE TO THE SAME. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE GAZETTED NOTIFICATION IN THIS REGARD PLACED AT PAGE 16 OF THE PAPER BOOK-II UNDER WHICH THE POW ERS HAD BEEN GIVEN TO CONSIDER THE APPLICATION FOR SETTING UP OF UNITS UNDER STP SCHEME OPERATED VIDE CUSTOM NOTIFICATION NO. 138 AN D 140 DATED 22.10.1991. THE SAID COMMITTEE WAS ALSO EMPOWERED T O CONSIDER THE PROPOSALS FOR INDUSTRIAL LICENSE, FOREIGN TECHN ICAL COLLABORATION, AGREEMENT AND IMPORT OF .CAPITAL GOO DS. THE ASSESSEE HAS FURNISHED THE REGISTRATION UNDER THE S OFTWARE TECHNOLOGY PARK SCHEME OF INDIA VIDE APPROVAL NO. STPIM/PCMG/PSE/02/199-7492 DATED 17.2.2003 REGISTER ING THE ASSESSEE AS AN 100% EOU. THE COPY OF THE SAID CERTI FICATE IS ENCLOSED AT PAGES 105 TO 109 OF THE PAPER BOOK ALON GWITH THE COPY OF THE AGREEMENT ENTERED INTO BY THE ASSESSEE COMPA NY WITH STPI ON 17.2.2003, A COPY OF WHICH IS ENCLOSED AT PAGES 111 TO 113 OF THE PAPER BOOK. IN VIEW OF THE ABOVE SAID EVIDENCE, UPHOLDING THE ORDER OF CIT(A), WE HOLD THAT THE ASSESSEE IS ENTIT LED TO DEDUCTION U/S 10B OF THE ACT AS A 100% EOU ON BEING REGISTERE D WITH STPI. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE C ASE AND IN VIEW OF OUR OBSERVATION IN PARAS HEREINABOVE, WE UPHOLD THE ORDER OF CIT(A) IN HOLDING THAT THE ASSESSEE IS ELIGIBLE TO THE EXEMPTION CLAIMED U/S. 10B OF THE ACT. ACCORDINGLY, GROUND NO .2 RAISED BY THE REVENUE IS THUS DISMISSED. 16. WE ALSO FIND GLARING SIMILARITIES BETWEEN SECTI ON 10A AND 10B OF THE ACT AS BELOW:- ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 12 WHETHER APPLIES WHETHER APPLIES SECTION 10A/ TO SECTION 10B RELEVANT SUB- RELEVANT SUB- SECTION, PROVISO OR SECTION, PROVISO EXPLANATION OR EXPLANATION SL.NO . PROPOSITION 1. BENEFIT OF DEDUCTION FOR EXPORT OF ARTICLES/ COMPUTER SOFTWARE YES YES SUB-SECTION(1) SUB-SECTION(1) 2. BENEFIT IS AVAILABLE FOR A PERIOD OF 10 CONSECUTIVE A.YS. BEGINNING WITH THE YEAR IN WHICH UNDERTAKING BEGINS TO PRODUCE/MANUFACTURE SUCH ARTICLE/ YES YES COMPUTER SOFTWARE SUB-SECTION(1) SUB-SECTION(1) 3. DEFINITION OF COMPUTER SOFTWARE IS YES EX EMPTED YES EXEMPTED AS ANY PRODUCT OR SERVICE OF THE SIMILAR AS P ER CBDT AS PER CBDT NATURE AS MAY BE NOTIFIED BY CBDT. NOTIFICA TION NOTIFICATION CBDT VIDE NOTIFICATION NO.SO 890(E) EXPLANATION ( 2) EXPLANATION (2) DATED 26.09.2000 HAS NOTIFIED THE LIST BELOW SE CTION10A BELOW SECTION10A OF INFORMATION TECHNOLOGY ENABLED PRODUCTS OR SERVICES ELIGIBLE FOR BENEFIT OF EXEMPTION CALL CENTRE ACTIVITY FIGURING AT ITEM (II) OF THE SAID LIST 4. BENEFITS UNDER THE PROVISIONS ARE YES YE S NOT AVAILABLE W.E.F 01.04.2012 4 TH PROVISO TO 3 RD PROVISO TO SUB- SUB-SECTION (1) SECTION (1) 5. BENEFITS AVAILABLE TO THE UNDERTAKINGS YES YES LOCATED AT FREE TRADE ZONE, ELECTRONIC CLAUSE (I) OF SUB-SECTION (1) READ HARDWARE TECHNOLOGY PARK/SOFTWARE SUB-SECTION(2) WITH EXPLANATION 2(IV) TECHNOLOGY PARK OR SPECIAL ECONOMIC BELOW SECTION 10B ZONE OR 100% EXPORT ORIENTED UNDER- TAKINGS. NOTE: STPS ARE NOTHING BUT 100% EOU AS HAS BEEN CLARIFIED BY STPI VIDE LETTER DATED 05.09.2011 6. UNDERTAKING CLAIMING DEDUCTION SHOULD YES YES NOT BE FORMED BY THE SPLITTING UP OR C LAUSE(II)& CLAUSE(II)& (III) OF RECONSTRUCTION OF A BUSINESS ALREADY IN (III) OF SUB- SECTION (2) EXISTENCE AND/OR IS NOT FORMED BY THE SECTION (2) TRANSFER TO A NEW BUSINESS OF MAC HINERY OR PLANT PREVIOUSLY USED FOR ANY PUR POSE. 7. THE PROVISIONS OF SUB-SECTION(8) AND SUB- YES YES ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 13 SECTION(10) OF SECTION 80-IA APPLY IN SUB-SECTION( 7) SUB-SECTION(7) RELATION TO THE UNDERTAKINGS. 8. RETURN OF INCOME SHOULD BE FURNISHED WITHIN YES YES THE DUE DATE SPECIFIED IN SECTION 139(1) AND SU B-SECTION(8) SUB-SECTION(8) THE RETURN SHOULD BE ACCOMPANIED BY A R.W F ORM NO.56F R.W FORM NO.56G REPORT OF THE CHARTERED ACCOUNTANT 17. WE FIND THAT THE ASSESSEE IS ALSO ENTITLED FOR BENEFIT OF DEDUCTION U/S. 10A OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THOUGH THE ASSESSEE HAD NOT CLAIMED THE SAME UNDER THAT SECTION IN THE RETURN OF INCOM E. IN THIS REGARD, WE WOULD LIKE TO PLACE RELIANCE ON THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT MUMBAI IN THE CASE OF ITO VS. ACCENTIA TECHNOLOGIES LIMITED IN IT A NO. 1871/MUM/2011 DATED 08- 05-2014 , WHEREIN IT WAS HELD THAT : 6. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) CALLED FOR A REMAND REPORT. UPON OBTAINING THE REMA ND REPORT HE NOTICED THE FOLLOWING UNDISPUTED FACTS I.E., (A) TH ERE IS NO DISPUTE REGARDING THE AMOUNT WHICH IS CLAIMED AS EXEMPT UND ER SECTION 10A OF THE ACT, (B) THERE IS NO DISPUTE THAT THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION UNDER SECTION 10A OF THE ACT AND ALL THE CRITERIA REGARDING THE SAID CLAIM HAS BEEN MET BY THE ASSESSEE, AND (C) TH ERE IS ALSO NO DISPUTE REGARDING THE FACT THAT IN THE RETURN OF INCOME THE ASSESSEE CLAIMED DEDUCTION OF THE AMOUNT ADMISSIBLE AS DEDUCTION UND ER SECTION 10A BY MENTIONING IT AS SECTION 10B OF THE ACT. THUS THE O NLY DISPUTE THAT EXISTS IS WHETHER THE CLAIM OF THE ASSESSEE REGARDING DEDU CTION UNDER SECTION 10A IS ALLOWABLE IF THE CLAIM WAS MADE UNDER SECTI ON 10B IN THE RETURN OF INCOME. THE LEARNED CIT(A) OBSERVED THAT SECTION 80A(5) IS APPLICABLE ONLY WHEN THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETU RN OF INCOME FOR ANY DEDUCTION WHEREAS IN THE INSTANT CASE THE ASSESSEE DID MAKE THE CLAIM THOUGH, BECAUSE OF A TECHNICAL ERROR, THE CLAIM WAS MADE UNDER SECTION 10B INSTEAD OF 10A. IN HIS OPINION, QUOTING OF WRON G SECTION SHOULD NOT DEPRIVE THE ASSESSEE FROM CLAIMING DEDUCTION SO LON G AS THE OTHER CONDITIONS FOR MAKING SUCH CLAIM ARE SATISFIED. HE RELIED UPON THE CIRCULAR ISSUED BY THE CBDT DATED 11.04.1955 WHEREI N IT WAS OBSERVED THAT IT IS THE DUTY OF THE AO TO GUIDE THE ASSESSEE WITH REGARD TO ELIGIBILITY TO CLAIM DEDUCTION; IN THE INSTANT CASE WHEN THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 10 B THE AO OUGHT T O HAVE GUIDED THE ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 14 ASSESSEE WITH REGARD TO ELIGIBILITY TO CLAIM DEDUCT ION UNDER SECTION 10A OF THE ACT. 18. WE ALSO FIND THAT THE CONTENTS OF AUDIT REPORT IN FORM NO. 56F AND 56G TOGETHER WITH THE COMPUTATION MECHANISM REMAINS THE SAME FOR CLAIMING THE DEDUCTION U/S. 10A/10B OF THE ACT. IT WAS ARGUED ALTERNATIVELY B Y THE LD.AR THAT THE DECISION OF THE LD.AO IS TO EDUCATE THE ASSESSEE OF ITS RIGHTS AND ENTITLEMENTS AS PER LAW AND CANNOT TAKE ADVANTAGE OF IGNORANCE OF ASSESSEE. IN THIS R EGARD, HE CITED THE RELEVANT EXTRACT OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SANCHI S OFTWARE & SOLUTIONS PVT. LTD VS. CIT REPORTED IN (2012) 349 I TR 404 (BOM), WHEREIN IT WAS HELD AS UNDER:- INCOME-TAX DEPARTMENT CANNOT TAKE ADVANTAGE OF THE ASSESSEES MISTAKES IN NOT CLAIMING THE EXEMPTION IN THE INCOME-TAX RETURN AND NOT DENY HIM EXEMPTION. THE E NTIRE OBJECT OF ADMINISTRATION OF TAX IS TO SECURE THE RE VENUE FOR THE DEVELOPMENT OF THE COUNTRY AND NOT TO CHARGE THE AS SESSEE MORE TAX THAN THAT WHICH IS DUE AND PAYABLE BY THE ASSESSEE. 19. WE FIND THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. INDIA CAPACITORS LTD REPORTED IN 180 IT R 641 ALSO SUPPORTS THIS PROPOSITION. WE FURTHER FIND THAT THE ALTERNATIVE ARGUMENT OF THE LD.AR HAS GOT LOT OF FORCE AS IT MAY BE APPRECIATED THAT THERE WAS NO MALA FIDE INTENTION ON THE PART OF THE ASSESSEE IN NOT CLAIMING THE DEDUCTION UNDER THE C ORRECT SECTION. IN FACT, IT COULD BE APPRECIATED THAT THE ASSESSEE HAD ONLY RUN THE RISK S OF NOT HAVING BEEN ABLE TO AVAIL THE BENEFIT OF JUSTICE AND NOT GAINED ANYTHING BY NOT CLAIMING DEDUCTION UNDER THE CORRECT SECTION. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. MAHALA XMI SUGAR MILLS CO. LTD REPORTED IN (1986) 160 ITR 920(SC) HAS OBSERVED AS UNDER:- 'THERE IS A DUTY CAST ON THE INCOME-TAX OFFICER TO APPLY THE RELEVANT PROVISIONS OF THE INDIAN INCOME-TAX ACT FO R THE PURPOSE OF DETERMINING THE TRUE FIGURE OF THE ASSESSEE'S TAXAB LE INCOME AND THE CONSEQUENTIAL TAX LIABILITY_ THAT THE ASSESSEE FAIL S TO CLAIM THE BENEFIT OF A SET-OFF CANNOT RELIEVE THE INCOME-TAX OFFICER OF HIS DUTY TO APPLY SECTION 24 IN AN APPROPRIATE CASE.' ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 15 HENCE, WE FIND THAT THE ABOVE PRINCIPLE HOLDS GOOD AND IN THE EVENT IT HAD BEEN APPLIED, THE ASSESSEE WOULD NOT HAVE BEEN DEPRIVED OF JUSTICE AND ADMITTING THE CLAIM UNDER CORRECT SECTION. 20. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES AND J UDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE ASSESSEE IS ENTITLED TO CLAIM THE BENEFIT OF DEDUCTION UNDER THE PROVISIONS OF SECTION 10A AS WELL AS SECT ION 10B OF THE ACT. HENCE WE FIND NO INFIRMITY IN THE IMPUGNED ORDERS OF THE LD.CIT(A ) IN DELETING THE DISALLOWANCE AS MADE BY THE LD.AO ON THIS ISSUE. WE UPHOLD THE IMPU GNED ORDERS OF THE LD.CIT(A). HENCE, THE GROUNDS RAISED BY THE DEPARTMENT IN BOTH THE APPEALS ARE DISMISSED. 21. IN VIEW OF AFORESAID FACTS AND CIRCUMSTANCES AN D JUDICIAL PRECEDENTS AS RELIED UPON BY THE LD.AR BEFORE US, THE GROUNDS OF CROSS OBJECTIONS AS FILED BY THE ASSESSEE BEFORE US ARE ALLOWED. 22. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED AND CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 04 - 03 - 2016 1.. THE APPELLANT/DEPARTMENT: INCOME TAX OFFICER, WARD 7(2), AAYKAR BHAVAN, P-7 CHOWRINGHEE SQUARE, 5 TH FL, KOL-69. 2 THE RESPONDENT/ASSESSEE- M/S. WIZARD ENTERPRISES PVT. LTD 5B, RAWDON STREET, 2 ND FL. KOLKATA-700017. SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE: DATE 04 -03-2016 COPY OF THE ORDER FORWARDED TO:- ITA NO.628/K/2011 CO NO.134/K/2013 ITA NO.65/K/2012 CO NO.133/K/2013-C-AM M/S. WIZARD ENTERPRISE PVT.LTD 16 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS