1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.2035 OF 2009 The Commissioner of Income Tax ..Appellant. V/s. M/s. Element K. India Pvt. Ltd. ..Respondent. Ms. Suchitra Kamble for appellant. None for respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 29TH AUGUST, 2009. P.C. :- 1. Heard learned counsel for the revenue. Office objections are overruled. Registry is directed to register the appeal. At the instance of the revenue, appeal is taken up for admission. 2. The issue sought to be raised in the appeal is relating to deletion of deduction under section 10A of the Income Tax Act, 1961 even though the undertaking in question is formed out of reconstruction of business already in existence. The Tribunal after taking into consideration the facts and circumstances of the case and relying upon the judgment of the Apex Court in the case of Textile Machinery Corporation Ltd. V/s. CIT reported in 107 ITR 195 has recorded a categorical finding reading as under:- " In the case of the assessee, all the above requirements are satisfied. The assessee invested substantial capital in purchase of fixed assets, 2 hiring of premises. It employees 125 employees in or around January, 2004 and it crossed 225 later. The profits from A.Y. 2004-05 are attributable only to the Chennai unit. The Chennai unit was a distinct identity. All other conditions even according to the Assessing Officer stood satisfied u/s.10A of the Act. The deduction claimed by the assessee therefore deserves to be allowed. The A.Y. 2005-06 will however be the second year of deduction u/s.10A because in A.Y. 2004-05 the Chennai unit started manufacture of computer software. The assessee's withdrawal of claim u/s.10A in A.Y. 2004-05 was not in accordance with provisions of section 10A(8) of the Act and therefore the Assessing Officer was right in his conclusions in this regard. " 3. The above finding is a findings of fact based on appreciation of evidence. In this view of the matter no substantial question of law arise in the appeal. The appeal is dismissed in limini with no order as tocosts. (J.P.DEVADHAR, J.) (V.C.DAGA, J.)