Whether when EoU Unit acquires whole business of medical transcription and claims deduction u/s 10B, benefit of Sec 10A allowed by higher appellate forums is legally sustainable - YES: Madras HC

THE issues before the Bench are - Whether when an EoU Unit acquires the whole business of medical transcription and claims deduction u/s 10B, the benefit of Sec 10A allowed by higher appellate forums is legally not sustainable; Whether the provisions of Sec 10A(2)(iii) will apply to this case and Whether when the assessee has been allowed the benefit of Sec 10A, any merit can be found in the AO's order to allow benefit of Sec 80HHE. And the verdict goes against the Revenue.

Facts of the case

The assessee is an industrial undertaking engaged in Medical Transcription Business. From the facts submitted it emerges that M/s KGISL got approval as a 100% EOU in the year 1998 from Software Technology Park of India and started its new business of Medical Transcription during financial year 1999-2000. It also had another undertaking engaged in the business of development of software and exported the same outside India. To that end it was stated to have imported machinery, during the assessment year 2000-01 and 2001-02. In respect of business income earned from export, the said undertaking claimed for exemption under Section 10A of the Income Tax Act. In July 2001, the said company transferred the entire undertaking engaged in the export business of Medical Transcription along with all transcriptions contracts, books, records, all rights, all permits, all warranties, including computer software to the assessee company by letter dated 28.5.2001 and 28.6.2001. The transfer was recognised and allowed by Software Technology Park of India. The vendor company also transferred its export obligation to the assessee company. By reason of transfer of the entire business, the employees of the vendor company engaged in Medical Transcription were also transferred and employed by the assessee company. In the background of the income on export, originally, the assessee claimed deduction under Section 10B of the Act. The Officer however rejected the said claim on the ground that when the assessee had filed approval obtained from the Software Technology Park of India for the purpose of Section 10B, the same would not be sufficient to grant the relief. The Assessing Officer further viewed that the assessee had not satisfied the conditions on account of the transfer of business. The Officer further pointed out that transfer related only to machinery. Consequently, the claim could not be sustained. Thus the claim was rejected. However, on the claim under Section 80HHE as an alternative claim, the Officer granted 30% deduction on the profit as allowable under Section 80HHE.

On appeal, the CIT(A) held that even though the assessee had made the claim originally under Section 10B, yet, the relief being one to be considered under Section 10A, and the said claim being already allowed at the hands of the vendor company, the same would be available to the assessee company too as the alternative claim made before the Officer. Thus, the assessee's appeal was allowed. In the light of the reasoning, the Commissioner of Income Tax (Appeals) held that the relief under Section 80HHE would not be available to the assessee.

On appeal, the Tribunal held that admittedly the unit was located in Software Technology Park of India and the copy of the approval letter dated 25.4.2001 clearly showed the status of the assessee company. The Tribunal held that the assessee was entitled to the relief under Section 10A. As regards the objection of the Department that there was only transfer of machinery, the Tribunal pointed out that the letter dated 28.5.2001 from Software Technology Park of India showed that there was transfer of whole business of the undertaking on the medical transcription. Thus, it cannot be said that it was a case of formation of an undertaking by using assets previously used, as contended by the Revenue. In the background of the said factual position, the Tribunal held that the order of the Commissioner of Income Tax (Appeals) merited to be confirmed.

Having heard the parties, the HC held that,

++ as far as the first question raised as regards the claim of the assessee originally made under Section 10B of the Income Tax Act is concerned, we do not think, the said question can be answered in favour of the Revenue. A reading of the order of the Assessing Officer as well as the Commissioner of Income Tax (Appeals) shows that even though the assessee originally claimed relief under Section 10B, it was cautious enough to make an alternative plea under Section 10A in view of the fact that the assessee's vendor had the benefit under Section 10A. It is not denied by the Revenue that the assessee had the whole business transferred to its favour and that the factum of transfer was also intimated to the Software Technology Park of India. Thus, as a Software Technology Park, the assessee is entitled to place his claim under Section 10A. In any event, even assuming for a moment, the assessee had not referred to the Section correctly, the fact remains that if the claim could be favourably be considered under any of those special deduction provisions and on the conditions specified therein being satisfied, we do not think that there exists any justifiable ground for the Revenue to contend that the assessee shall not be entitled to have the benefit of Section 10A;

++ given the fact that the findings of the Tribunal is that the entire business of M/s.KGISL stood transferred to the assessee and that the assessee is also recognised to have had its industrial unit, in the Software Technology Park, we have no hesitation in confirming the order of the Tribunal in granting the relief to the assessee under Section 10B. Consequently, the first question of law is answered against the Revenue;

++ as far as the second question of law as to whether the Tribunal was right in sustaining the order of the Commissioner of Income Tax (Appeals), that the assessee had not satisfied the provisions under Section 10A(2)(iii) of the Act to claim the deduction under Section 10A, is concerned, the factual position has already been pointed out that the assessee had the entire medical transcription transferred to its favour, a fact which would not be controverted by the Revenue at any stage. Contrary to the assertion of the Revenue that what was transferred was only machinery, we find that the Officer himself had accepted that the balance sheet of the assessee reflected the transfer of the entire business and to that extent, it was removed in the vendor's balance sheet;

++ even a cursory reading of the provisions of Section 10(A)(2) shows that where an undertaking is formed by splitting up or reconstruction of business already in existence then the said undertaking would not be entitled to claim deduction under Section 10A. The other conditions is that the industrial undertaking should not be formed by transfer of plant and machinery already used for any purpose. Thus, what is prohibited in Section 10(A)(2)(iii) is that the transfer of used machinery and plant to a new business undertaking and forming of an industrial undertaking by splitting or reconstruction of the existing industrial undertaking. The intention thus under Section 10A being clear and that there is no specific prohibition or even by inference to an industrial unit formed by transfer of entire business, we have no hesitation in rejecting the Revenue's plea that by transfer of machinery, the assessee would be disentitled to the relief under Section 10A. As already pointed out, the fact herein is that the transfer was not that of plant and machinery alone but of sale of whole business unit to the transferor company which was primarily only of export of articles or things. In the circumstances, going by clear provisions of Act, we reject the Revenue's plea;

++ the third question of law before us is that whether the Tribunal was right in granting deduction under section 10A, although the assessee was entitled to deduction under Section 80HHE of the Income Tax Act. We do not find that the question survives for any consideration, for the simple reason, that this Court accepts the plea of the assessee that the assessee would be entitled to the claim under Section 10A. Having thus granted relief to the assessee under Section 10A, the Tribunal rightly held that the assessee was not entitled to the relief under Section 80HHE. Having regard to the above fact, we do not find that question No.3, in this case survives for consideration and the same is rejected.