By TIOL News Service

CHENNAI, OCT 04, 2013: THE issue before the Bench is - Whether as per the scheme formulated by the Government of India, Ministry of Commerce and Industry in locating the Software Technology Park, the assessee can be deprived of the benefits of Section 10A solely by reason of it being in existence already, but became STPI subsequently. And the verdict goes against the Revenue.

Facts of the case

The assessee is a Proprietory Concern engaged in Electronic Data Transmission (Data Processing). The assessee's Unit was in operation ever since 1994. The Assessee's unit was approved as Software Technology Park by the Government of India as 100% Export Oriented Unit for Computer Software on 27.03.2002. Considering its status as 100% Export Oriented Unit, the assessee claimed the benefit of deduction u/s 10A of the Act, particularly for the AY 2003-04. The assessee had the benefit of 100% deduction u/s 10A for the AYs 2003-04 and 2004-05. For the AY 2005-06, the CIT initiated proceedings u/s 263 on the ground that the assessee got registration as Software Technology Park only on 27.03.2002, whereas, it had commenced production in the Financial Year 1999-2000 itself; as such, the assessee unit was an existing unit wherein the plant and machinery were used for such purposes; by getting permission from the authority as Software Technology Park on 27.03.2002, the assessee had transferred the plant and machinery previously used to the Software Technology Park and the assessee had not registered ever since it commenced production in the Financial Year 1999-2000. In view of the above, the deduction granted was erroneous and prejudicial to the interests of the Revenue. The assessee contested by placing reliance on the decision of the Tribunal, which was rejected by the CIT.

Further, the CIT viewed that the Circular No.1 of 2005 dated 06.01.2005 relied on by the assessee related to the provisions of Section 10B of the Act and has no relevance to the operation of Section 10A of the Act. The CIT confirmed its proposal for the AY 2005-06. On appeal, the Tribunal dismissed the same, against which an appeal has been filed before the High Court. By referring to the reasoning of the CIT, the AO held that since the assessee had used its old machinery, which was in existence from the assessment year 1999-2000, it was not entitled to the deduction under Section 10A of the Act. Thus, aggrieved by the assessment order, the assessee filed appeal before the CIT (A), who agreed with the assessee. Consequent on the CIT's order, the assessment was made on the assessee. On appeal, the CIT(A) agreed with the contentions of the assessee. On appeal by the Revenue, the Tribunal followed its order for 2006-07 and 2007-08 and allowed the appeals. The CIT(A) also allowed the appeals for the AYs 2006-07 and 2007-08 following the order of the Tribunal in the case of ITO Vs. Heartland K.G.Information Ltd.

The Tribunal relied on the decision of the Karnakata High Court in the case of CIT and Others Vs. M/s.Expert Outsource (P) Ltd., wherein the Court had allowed the deduction u/s 10A; even though the assessee had begun operations on 17.12.2003. Thus, Tribunal allowed the assessee's claim, and held that, the fact of the assessee being in the business prior to the date of the registration of the STPI would not stand in the way of granting relief to the assessee.

Aggrieved, the Revenue has filed this appeal before the High Court.

The DR referred to the Sections 10A and Section 10B and submitted that the reliance placed on by the assessee on the decision of the Karnataka High Court has no relevance, because it operated on a different field and reiterated the stand taken by the CIT. The contention of the Revenue could be summarized as that since the assessee, was already in existence cannot take the benefit of Section 10A of the Act and only such of those assessees, who have commenced production with the registration as Software Technology Park as given therein under Section 10A(2) of the Act alone can claim to benefit of Section 10A of the Act.

Having heard the parties, the High Court held that,

+ we do not agree with the said line of reasoning of Standing counsel appearing for the Revenue. At the outset, we may say that we are in respectful agreement with the Karnataka High Court decision in the case of CIT and Others Vs. M/s.Expert Outsource (P) Ltd. Pointing out to the purpose of the STP scheme to encourage exports and gain valuable foreign exchange for the country, the Karnataka High Court held that "The STP scheme provides the benefit of converting a DTA unit into a STPI unit and the same should also hold good for tax purposes." Referring to Circular No.1 of 2005 dated 06.01.2005, the Karnataka High Court pointed out that the said Circular grants certain benefits under Section 10B of the Act; though this was in the context of Section 10B of the Act, the ratio of the Circular No.1 of 2005 dated 06.01.2005 would apply to Section 10A of the Act too. Thus it held that the mere fact that the assessee was in existence prior to its date of registration on 04.08.2004 as Software Technology Park would not disentitle the assessee from claiming deduction under Section 10A of the Act;

+ as far as the present case is concerned, there is no denial of the fact that the assessee is in business right from 1999-2000. It got its registration as STPI on 27.03.2002. The Department accepted the claim of the assessee for two assessment years 2003-04 and 2004-05 and the assessment had become final. It is not as though the facts relating to the assessee's existence prior to its registration on 27.03.2002 is not a fact that the Department did not know and by mistake it allowed the benefit for the year 2003-04 and 2004-2005. In the circumstances, with the orders thus becoming final, principally stating, we do not find any justifiable ground for the Revenue to question the claim of the assessee from the assessment year 2005-06;

+ even otherwise, we find that the claim of the Revenue could not be sustained. The provisions contained in Section 10A of the Act grants 100% deduction on profits and gains derived by an undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce such articles or things or computer software. Section 10A(2) of the Act refers to the undertaking which are entitled to the benefit of Section 10A of the Act;

+ a reading of the provisions referred to above point out that the Section grants 100% deduction to an undertaking, which has begun or begins to manufacture or produce articles or things or computer software as per Sub clause (i) of Sub Section 2 of Section 10A of the Act. The dates mentioned therein show the conditions regarding the year of manufacture for the purpose of reckoning the exemption/ deduction for ten consecutive years with reference to the undertaking set up in different locations viz., for the industries in free trade zone, units in electronic hardware technology park or software technology park, units in special economic zone. The second requirement under Sub Section 2 of Section 10A of the Act is that it is not formed by splitting up or the reconstruction of a business already in existence and Sub clause (iii) of Sub Section 2 of Section 10A of the Act states that it is not formed by the transfer of machinery or plant previously used for any purpose to a new business;

+ as far as the present case is concerned, the assessee is in Software Technology Park. The assessee took advantage of the scheme notified by the Government of India in the Ministry of Commerce and Industry of the "software technology park" and sought for registration as STPI on 2002. In so getting the registration, the question that arises for consideration is as to whether the claim of the assessee would be covered by Clause (b) of Sub clause (i) of Sub Section 2 of Section 10A of the Act. A reading of the above Sub Section shows that in order to claim deduction, an undertaking in hardware technology park or software technology park must be in existence commencing its production on or after the 1st day of April, 1994. Given the fact that the assessee is not formed by splitting up or transfer to a new business and got registration even since 2002, the fact that it has been in existence ever since 1999, does not militate against the applicability of Section 10A of the Act. The case on hand falls under Section 10A(2)(b) of the Act. As already pointed out, even the cursory reading of Section 10A(2)(i) of the Act shows that it has relevance to industry that has begun to manufacture or produce articles or things or computer software on or after the 1st day of April, 1994. Thus, the moment the assessee satisfies this clause and it goes for the second requirement namely, registration as a Software Technology Park in accordance with the scheme of Government of India, the assessee stands benefited by the provisions of Section 10A of the Act;

+ Standing counsel appearing for the Revenue however pointed out to the second proviso to Section 10A(1) of the Act and submitted that the Section will have relevance to the industry;

+ we do not think it so. The second proviso to Section 10A(1) of the Act states that where the undertaking located in any free trade zone or export processing zone is subsequently located in a special economic zone by reason of conversion of such free trade zone or export processing zone into a special economic zone, the period of ten consecutive assessment years referred to in this sub-section shall be reckoned from the assessment year relevant to the previous year in which it had started manufacture or produce such articles or things or computer software in the free trade zone or the export processing zone or otherwise, and clarifies that the benefit would continued to be available to the balance of period available to the free trade zone which has been subsequently got converted into special economic zone. Given the scope of the scheme formulated by the Government of India, Ministry of Commerce and Industry in locating the Software Technology Park, which either may be done by the Government itself or by the individual unit, we do not find any conditions in the Section, throwing the assessee out of benefit of Section 10A of the Act solely by reason of it being in existence already but became STPI subsequently. In the circumstances, we have no hesitation in rejecting the Revenue's appeal, thereby confirming the order of the Income Tax Appellate Tribunal.

(See 2013-TIOL-763-HC-MAD-IT)