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Before: Shri S.S Viswanethra Ravi,
SHRI S.S VISWANETHRA RAVI, JM
The appeal of the revenue is arising out of the order of the Learned CIT(A)- VIII, Kolkata in appeal no.232/CIT(A)-VIII/Kol/11-12 dated 16-11-2012 for the assessment years 2009-10 against the order of assessment framed by the ld.AO u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
The only issue to be decided in this appeal of revenue is as to whether the assessee is entitled for claim of deduction u/s. 10B/10A of the Act in respect of profits derived from its call centre operations from unit registered with STPI as Software Technology Park of India [ in short ‘STPI’] as 100% export oriented unit [EOU].
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The brief facts of this issue are that the assessee claimed exemption from profits u/s. 10B of the Act from its call centre operation in the return of income. The assessee started its call centre operation w.e.f 16-02-2006. The assessee claimed deduction u/s. 10B of the Act for the assessment year 2009-10. The AO disallowed the same on the ground that it is not a 100% export oriented undertaking and was not approved by the concerned statutory board. The CIT-A deleted the addition made by the AO and allowed the exemption claimed by the assessee. In second appeal, the question before us to decide is as to whether the assessee is eligible to claim of deduction u/s. 10B/10A of the Act.
The Ld. DR relied on the order of AO. The Ld.AR relied on the order of Tribunal. We find that as rightly pointed out by the Ld.AR, a similar issue came up before the co-ordinate bench of ITAT Kolkata wherein it examined the documents produced by the assessee before the AO in detail and an elaborate order was passed thereon holding that the assessee is entitled to claim the benefit of deduction under the provisions of section 10A as well as section 10B of the Act. Relevant portions of finding from paras 10 to 20 of the Tribunal order dated 04-03-2016 are reproduced herein below for the sake of clarity.
“10. We have heard the ld.AR and perused the materials available on record including the paper book as filed by the assessee before us. The facts as stated herein above remain undisputed and hence the same are not reiterated for the sake of brevity. We find from page 43-46 of the assessee’s paper book containing an agreement entered into by the assessee for software export technology park with the Central Government on 20th day of January, 2006, wherein the following clauses require careful consideration:-
WHEREAS the Government have communicated vide STP:DIR 441:2005-06: 1548 dated 10.01.2006 to the unit the terms and conditions for setting up of the 100% export oriented Software Technology Park under software export scheme of Ministry of Communications & Information Technology for the execution of IT enabled services and the unit has duly accepted the said terms and conditions vide their letter No. NIL dated 13th January, 2006.
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AND WHEREAS the unit has been granted the status of 100% export oriented unit as defined in Ministry of Commerce Resolution No. 33/(RE)/92-97 dated 2nd March, 1994 in Technology Park.
AS WHEREAS the unit has been allowed to import the capital goods, raw materials, spares and consumables etc free of import duty for the execution of IT enabled services for export through satellite data link or in form of physical export. “
We find from page 47-48 of the paper book regarding copy of the green card issued by the designated officer, Govt. of India, Deptt. Of Information Technology and Chairman, Inter-ministerial standing Committee on software technology park scheme vide green card number STPK/233/06 dated 16th 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 pertinent to reproduce the same herein below:- “ Sl No. 6047 Green Card No.STPK/233/06 Dated the February 16th 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 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 understood in its true and fullest sense in the larger interest and purpose behind setting up a unit and the allied benefits it is likely to bring. These export benefits would automatically be eligible for deduction u/s. 10B of the Act. Otherwise, the purpose of granting the same for setting up a unit and registering with STP as 100% EOU status would get defeated.
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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 CBDT’s instruction no. 1/2006 dated 31-03-2006 assumes great significance. The same is reproduced herein below for better appraisal :- “ SECTIONS 10A AND 10B FREE TRADE ZONES / 100% EXPORT ORIENTED UNDERTAKINGS, 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 STP scheme requires approval by the Inter-Ministerial Standing Committee of the Department of Electronics. Accordingly, the cases of such claimants have been reopened by the authorities. 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 approval 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, 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 Software Technology Parks. However, it has to be ensured that all other conditions specified in section l0A are fully satisfied before allowing any such claim. 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.”
It is not in dispute that a call centre operation has been duly notified as IT enabled services and thereby eligible for deduction for 100% export oriented unit contemplated u/s. 10A/10B of the Act.
We also find from page 51 of the paper book containing a letter dt. 02- 09-2011 addressed to the assessee by Software Technology Parks of India (STPI),
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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 for 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 91-33-2367-3597 Email:infor@kol.stp.in/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 officials, the facts w.r.t, your STP unit registration is produced below: 1. Your unit 'Wizard Enterprises Pvt. Ltd.' is registered as a 100% Export Oriented Unit under STP scheme vide LOP no. STPK:DIR:441:2005-06:1548 dt: 10.01.2006 as per notification no. 33/(RE)(92-97 dt: 22.03.1994 read with subsequent amendments and EXIM Policy ( Foreign Trade Policy. 2. As per Para 6.26 of Foreign Trade Policy 2004-2009: 'In the case of units under EHTP /STP Schemes, necessary approval/ permission under relevant paragraphs of this Chapter shall be granted by the officer designated by the Ministry of Communication and Information Technology, Department of Information Technology instead of the Development Commissioner and by the Inter-Ministerial Standing Committee (IMSC) instead of BOA: 3. Approval of your unit is granted by Director, STPI 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
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It was also brought to our attention by the ld.AR that the Instruction (F.No.178/19/2008-IT-I) dated 9th March’ 2009 issued by CBDT clarifies that the power to grant approval u/s. 14 of industrial (Development & 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 the instant case approval under the STP scheme is granted by the Designated Officer, Department of Information Technology and by the Inter-ministerial Standing Committee (IMSC). Hence, the approval granted under STP Scheme complies with all the requirements contemplated u/s. 10B of the Act when read with Industrial (Development & Regulations) Act, 1951, Foreign Trade Policy 2004-2009, Hand book of Procedures (Volume-I) & Appendix to the Handbook. We also find that the ld.AR further argued before us that to the best of his knowledge the order passed under similar circumstances by the ld.CIT(A)-II, Kolkata in the case of ARB Software (India) Ltd for the assessment year 2003-04 has not been appealed by the revenue before the tribunal. 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 assessee on the ground that no approval was obtained from the Board appointed by the Central Govt. in exercise of power conferred by section 14 of Industrial (Development & 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 failed 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 powers had been given to consider the application for setting up of units under STP Scheme operated vide custom notification No. 138 and 140 dated 22.10.1991. The said committee was also empowered to consider the proposals for industrial license, foreign technical collaboration, agreement and import of .capital goods. The assessee has furnished the Registration under the Software Technology Park Scheme of India vide approval No. STPIM/PCMG/PSE/02/199-7492 dated 17.2.2003 registering the assessee as an 100% EOU. The copy of the said certificate is enclosed at pages 105 to 109 of the paper book alongwith the copy of the agreement entered into by the assessee company 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 entitled to deduction u/s 10B of the Act as a 100% EOU on being registered with STPI. In the entirety of facts and circumstances of the case 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.
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10B of the Act. Accordingly, ground No.2 raised by the revenue is thus dismissed.”
We also find glaring similarities between Section 10A and 10B of the Act as below:-
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 exempted Yes exempted as Any product or service of the similar as per CBDT as per CBDT nature as may be notified by CBDT. Notification Notification CBDT vide Notification No.SO 890(E) Explanation (2) Explanation (2) dated 26.09.2000 has notified the list below Section10A 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 Yes Not available w.e.f 01.04.2012 4th Proviso to 3rd Proviso to sub- sub-section (1) section (1)
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
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Letter dated 05.09.2011 6. Undertaking claiming deduction should Yes Yes not be formed by the splitting up or Clause(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 machinery or plant previously used for any purpose. 7. The provisions of sub-section(8) and sub- Yes Yes 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 Sub-section(8) Sub-section(8) The return should be accompanied by a r.w FORM No.56F r.w FORM No.56G report of the Chartered Accountant
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 income. 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 ITA 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 remand report he noticed the following undisputed facts i.e., (a) there is no dispute regarding the amount which is claimed as exempt under 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) There is also no dispute regarding the fact that in the return of income the assessee claimed deduction of the amount admissible as deduction under section 10A by mentioning it as section 10B of the Act. Thus the only dispute that exists is whether the claim of the assessee regarding deduction under section 10A is allowable if the claim was made under section 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 return 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 wrong section should not deprive the assessee from claiming deduction so long as the other conditions for making such claim are satisfied. He relied upon
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the circular issued by the CBDT dated 11.04.1955 wherein 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 to have guided the assessee with regard to eligibility to claim deduction under section 10A of the Act.”
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 by 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 regard, he cited the relevant extract of the decision of the Hon’ble Bombay High Court in the case of Sanchi Software & Solutions Pvt. Ltd Vs. CIT reported in (2012) 349 ITR 404 (Bom), wherein it was held as under:-
“Income-tax Department cannot take advantage of the assessee’s mistakes in not claiming the exemption in the Income-tax Return and not deny him exemption. The entire object of administration of tax is to secure the revenue for the development of the country and not to charge the assessee more tax than that which is due and payable by the assessee.”
We find that the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs. India Capacitors Ltd reported in 180 ITR 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 correct section. In fact, it could be appreciated that the assessee had only run the risks of not having been able to avail the benefit of justice and not gained anything by not claiming deduction under the correct section. The Hon’ble Supreme Court in the case of CIT Vs. Mahalaxmi 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 for the purpose of determining the true figure of the assessee's taxable income and the consequential tax liability_ That the assessee fails 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."
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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.
In view of above facts and circumstances and judicial 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 section 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 impugned orders of the ld.CIT(A). Hence, the grounds raised by the department in both the appeals are dismissed.
We find that the issue raised by the appellant Revenue in this appeal is squarely covered by the order of Tribunal supra in assessee’s own case for assessment years 2007- 08 and 2008-09, respectfully following the same we hold that the assessee is entitled to claim the benefit of deduction under the provisions of section 10A as well as section 10B of the Act in the circumstances of the case. Therefore, we dismiss the sole ground raised by the appellant Revenue. In the result, the appeal of the Revenue is dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 29 /04/2016
Sd/- Sd/-
( Waseem Ahmed, Accountant Member ) ( S.S Viswanethra, Ravi, Judicial Member) Date 29 /04/2016
Copy of the order forwarded to: 1.. The Appellant/Department: Income Tax Officer, Ward 7(2), Aaykar Bhavan, P-7 Chowringhee Square, 5th Fl, Kol-69. 2 The Respondent/Assessee- M/s. Wizard Enterprises Pvt. Ltd 5B, Rawdon Street, 2nd Fl. Kolkata-700017. 3 /The CIT, 4.The CIT(A) 5. DR, Kolkata Bench 6. Guard file. True Copy, By order, Asstt Registrar *PRADIP SPS
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