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Income Tax Appellate Tribunal, DELHI BENCH ‘C’ : NEW DELHI
Before: SHRI G.D. AGRAWAL & SHRI KULDIP SINGH
Order
: 10.02.2017 O R D E R
PER KULDIP SINGH, JUDICIAL MEMBER :
The Appellant, M/s. Infrasoft Technologies Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal sought to set aside the impugned order dated 14.12.2012 passed by the Commissioner of Income-tax (Appeals)-V, New Delhi qua the assessment year 2003-04 on the grounds inter alia that :- “1. That on the facts and circumstances of the case, the Learned CIT (A) was not justified in sustaining the disallowance of the claim of exemption of Rs.1,87,92,750 u/s 10A of the Act, 1.1 That the learned CIT (A) has failed to appreciate that there were two distinct undertakings i.e domestic & STPI undertaking of the appellant company, 1.2 That the learned CIT (A) has erred in holding that there was conversion of the undertaking established in AY 96-97 into STPI unit, 1.3 That on the facts and circumstances of the case, the learned CIT (A) ought to have held that a new unit was established in FY 1999-2000, 2. Whether on the facts and circumstances of the case and in law the CIT(A) erred in law in holding that the appellant had violated the conditions prescribed in sub-section (9) of section 10A of the Act and was therefore, not eligible for claiming deduction under section 10A? 2.1 That for the purposes of section 10A(9 ) read with explanation 1 the comparison of shareholding ought to have been done as at 31.03.2000 and 31.03.2003 2.2 Without prejudice to the above grounds whether transfer in shareholding made before 01.04.2000 can be reckoned for purposes of ascertaining change in beneficial shareholding for purposes of section 10A(9 ) read with explanation 1.
That in any case the Section 10A is an incentive provision and should be construed liberally.
4. That on the facts and in the circumstances of the case the Learned CIT(A) was not justified in upholding the disallowance in respect of employer & employee contribution to PF & ESI amounting to Rs.548462/- and Rs.16731/- respectively.” 2. Briefly stated facts of this case are : assessee is into the business of development and sale of software products and has claimed its income as exempt under section 10A of the Income-tax Act, 1961 (for short ‘the Act’). Assessing Officer, by following the Assessment Years 2001-02 and 2002-03, disallowed the claim of the assessee. Assessee’s claim u/s 10A was disallowed by the Revenue u/s 143(3)(ii) of the Act for AY 2001-02 against which the assessee has preferred an appeal which was also dismissed by the ld. CIT (A) and consequently, AO disallowed the deduction of the assessee amounting to Rs.1,87,92,750/- u/s 10A of the Act.
AO has disallowed an amount of Rs.46,75,972/- and Rs.1,35,662/- pertaining to PF and ESI respectively on the ground that the same were not deposited within the prescribed period.
3. Assessee carried the matter before the ld. CIT (A) who has confirmed the disallowance of Rs.1,87,92,750/- u/s 10A of the Act and confirmed the disallowance of Rs.5,65,193/- i.e. disallowance of Rs.5,48,462/- on account of late deposit of PF and Rs.16,731/- on account of late deposit of ESI. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
GROUNDS NO.1, 1.1, 1.2, 1.3, 2, 2.1, 2.2 AND 3 :
5. Undisputedly, the assessee company was incorporated on 06.07.1995 and has started a new export unit in previous year relevant to AY 2000-01 which was registered with STPI on 28.03.2000. It is also not in dispute that AO disallowed the claim of deduction of the assessee u/s 10A of the Act by merely relying upon assessment order for AY 2001-02 which was confirmed by CIT (A) who has relied upon the order passed by the Tribunal in assessee’s own case for AY 2002-03. CIT (A) disallowed the deduction for AY 2002-03 on the grounds inter alia that since the assessee has converted its domestic unit started in 1995 into STPI unit and has not started the new export unit, it is not entitled to deduction u/s 10A; that provisions contained u/s 10A(a) are applicable to the assessee and as such not eligible to claim deduction u/s 10A of the Act; Tribunal while adjudicating the issued in controversy qua AY 2002-03 also held that the assessee is not eligible for deduction u/s 10A of the Act being hit by provisions contained u/s 10A of the Act.
6. The ld. AR for the assessee contended that provisions contained u/s 10A(a) of the Act are not applicable to the assessee as the same has been omitted from AY 2004-05 meaning thereby the said sub-section never existed in the statute book and relied upon the decision rendered y Hon’ble Karnataka High Court in CIT vs. G.E. Thermometrics India Pvt. Ltd. in ITA 876/2008 dated 25.11.2014.
The ld. AR for the assessee by relying upon Circular No.1 of 2005 dated 06.01.2005 issued by CBDT saying the assessee to be eligible for deduction claimed u/s 10A of the Act.
8. The assessee for the sake of brevity also given chronology of events to prove its eligibility for claiming deduction u/s 10A of the Act which is extracted as under :-
Sr.No. Date Particulars 1. 06.07.1995 Assessee company incorporated and started domestic unit engaged in local sale of various computer software. 2. F.Y. 1999-00 Assessee company started export unit for rendering software development services and for that purpose undertook various activities as under 06.08.1999 Board resolution for registering the export oriented unit with STPI 23.09.1999 Agreement with M/s Direct Credit Exchange Ltd, UK, for manufacturing and export of software 11.12.1999 Premises of ground floor of the same building taken on lease to shift existing domestic unit. 03.02.2000 Advance received from M/s Direct Credit Exchange Ltd, UK. This was first ever foreign exchange remittance in respect of export received by assessee. 07.02.2000 New EEFC account opened. 14.03.2000 Board resolution permitting authorized people to sign documents in connection with registration of export unit with STPI 16.03.2000 Application made to STPI Authority for approval. 3. 28.03.2000 Approval received from STPI Authority.
Now, the first question arises for determination of this case is :-
“as to whether assessee is eligible for claiming deduction u/s 10A of the Act being a converted STPI unit from existing domestic unit?”
This issue has already been dealt with by the coordinate Bench of the Tribunal in assessee’s own case for AY 2002-03 wherein the issue has been answered in favour of the assessee that even if, the unit of the assessee has held to be converted from existing domestic unit to a STPI unit, it will still be eligible to claim deduction u/s 10A of the Act from the date of conversion for an unexpired period of 10 years starting from AY 1996-97. So, the first ground taken by the ld. AO/CIT (A) to disallow the claim of the assessee u/s 10A for the assessment year under consideration that the assessee being a converted STPI unit from domestic unit is not eligible for deduction u/s 10A, is not sustainable in the eyes of law.
So far as the question of disallowing the claim of the assessee u/s 10A by taking shelter of section 10A(9) of the Act is concerned, this issue has already been dealt with by the Hon’ble Karnataka High Court in case of CIT vs. GE Thermometrics India Pvt. Ltd. (supra). Operative part of the judgment is extracted as under for ready perusal :-
4. The substantial question of law that arises for consideration in these appeals is as under:- “Whether the Tribunal was correct in holding that in view of the omission of sub-section 9 to Section 10B of the Act, w.e.f. 01.04.2004, it should be understood that the said section never existed in the statute book and therefore the benefit claimed by the assessee u/s 10B should be allowed?
The learned Counsel for the revenue assailing the impugned order contends that it is well settled that the Income Tax Act as it stands amended on the first day of April of any financial year must apply to the assessment of that year. Any amendments in the Act which come into force after first day of April of a financial year would not apply to the assessment for that year, even if the assessment is actually made after the amendments come into force. In support of his contention, he relies on the judgment of the Apex Court in the case of KARIMTHARUVI TEA ESTATE LTD., VS. STATE OF KERALA reported in [1966] 060 ITR 0262. On the same analogy, though sub-section (9) of Section 10B was omitted with effect from 01.04.2004, on the day the beneficial interest was transferred and for subsequent period, till the said omission took place, the said omitted provision is applicable and he submits that the approach of the Tribunal is erroneous and requires to be set aside.
Per contra, the learned Counsel for the assessee relying on the judgment of the Constitution Bench of the Apex Court contended that when a provision in a statute is omitted from the statute book, the result is that the said provision did not ever exist in the statute in the absence of any saving provision. Admittedly, there is no saving provision. Therefore, he submits that the approach of the Tribunal is correct and no case for interference is made out.
7. The Apex Court in the case of KOLHAPUR CANESUGAR WORKS LTD., VS. UNION OF INDIA reported in AIR 2000 SC 811dealing with the effect of deletion of a provision in the statute is held at Para 38 as under:
“38. The position is well-known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this Rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.”
Admittedly, in the instant case, there is no saving clause or provision introduced by way of an amendment while omitting sub-section (9) of Section 10B. Therefore, once the aforesaid section is omitted from the statute book, the result is it had never been passed and be considered as a law that never exists and therefore, when the assessment orders were passed in 2006, the Assessing Officer was not justified in taking note of a provision which was not in the statute book and denying benefit to the assessee. The whole object of such omission is to extend the benefit under Section 10B of the Act irrespective of the fact whether during the period to which they are entitled to the benefit, the ownership continues with the original assessee or it is transferred to another person. Benefit is to the undertaking and not to the person who is running the business. We do not see any merit in these appeals. The substantial question of law is answered in favour of the assessee and against the revenue. Accordingly, the appeals are dismissed.”
The ratio of the judgment in case of CIT vs. GE Thermometrics India Pvt. Ltd. (supra) is that once any provision is omitted from the statute book, the result is that it had never been passed and be considered as a law that never exists and as such, the assessee is entitled for benefit of section 10A of the Act and section 10A(9) is not attracted in its case.
13. By following the law laid down by Hon’ble Karnataka High (supra), the coordinate Bench of the Tribunal in & 6387/Del/2012 in assessee’s own case extended the relief u/s 10A of the Act to the assessee in AY 2005-06. Since the year under assessment falls in the unexpired period of 10 years, the assessee is entitled for exemption of Rs.1,87,92,750/- u/s 10A of the Act having been wrongly disallowed by the AO and confirmed by the ld. CIT (A). So, findings of the ld. CIT (A) are hereby reversed.
Grounds No.1, 1.1, 1.2, 1.3, 2, 2.1, 2.2 and 3 are determined in favour of the assessee.
GROUND NO.4 :
Assessee challenged disallowance of Rs.5,48,462/- and Rs.16,731/- on account of employees contribution towards PF and ESI respectively by the AO and affirmed by the CIT (A) on the grounds inter alia that the date of filing the return of income for AY 2003-04 was extended by the CBDT vide order dated 16.10.2003 from 31.10.2003 to 30.11.2003 and the payment made by the assessee to the tune of Rs.2,63,477/- made on 14.11.2003 is well within the due date of filing the return; that under section 43B of the Act, assessee was entitled to deduction only if contribution was deposited on or before the due date given in the Provident Fund Act and vide amendment by Finance Act, 2003 applicable form 01.04.2004 i.e. for AY 2004-05 the deduction u/s 43B of the Act is allowed if the PF contribution is made before the due date of filing the return of income; that Hon’ble Supreme Court in the case of CIT vs. Alom Extrusions Ltd. 319 ITR 307 held that the said amendment would be treated retrospectively from 01.04.1998 and the amount of Rs.2,63,477/- deposited on 14.11.2003 is allowable.
Issue in controversy has been dealt with by Hon’ble Delhi High Court in case of CIT vs. AIMIL Limited – 321 ITR 508. The ratio of the judgment in case of CIT vs. AIMIL Limited (supra) is that in case of AY 2002-03, the deposit of employees contribution on account of PF and ESI after due date as prescribed under the relevant Act/Rules but before the due date for filing the return under Income-tax Act, no disallowance can be made in view of the provisions contained u/s 43B as amended by Finance Act, 2003. So, by following the decision rendered by Hon’ble jurisdictional High Court in case of CIT vs. AIMIL Limited (supra), amount of Rs.2,63,477/- is allowable. So, this ground is allowed and restored to the AO to decide afresh in the light of the findings returned herein before.
In view of what has been discussed above, present appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 10th day of February, 2017.