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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO& SHRI D.S. SUNDER SINGH
आदेश /O R D E R
PER D.S. SUNDER SINGH, Accountant Member: This appeal is filed by the revenue against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-1, Visakhapatnam vide ITA No.10080/2016-17/ACIT-C-3(1),VSP/2017-18 dated 20.06.2018. Cross Objections are filed by the assessee in support of the order of the order of the Ld.CIT(A) for the Assessment Year (A.Y.) 2009-10.
All the grounds of appeal are related to the deduction u/s 10AA and the reopening of assessment u/s 147 of the Act. The assessee company is engaged in the business of manufacture and export of chrome concentrate, filed its return of income for the A.Y. 2009-10 electronically on 29.09.2009 admitting total income of Rs.38,56,890/-. Subsequently, the assessee company revised its return of income on 21.09.2010 admitting the same income as was admitted in the original return of income. The said return was processed u/s 143(1) and selected for scrutiny and the assessment was completed u/s 143(3) on 29.04.2011 on total income of Rs.40,14,900/- . Subsequently, the Assessing Officer (AO) found from the assessment records that the assessee had claimed the exemption u/s 10AA of the Act to
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the tune of Rs.66,38,369/-, hence reopened the assessment u/s 147 of the Act by issue of notice u/s 148 on 10.12.2014. In response to the notice issued u/s 148, the assessee filed a letter requesting to treat the return of income filed originally, as return in response to the notice issued u/s 148. Subsequently, notice 143(2) was issued to the assessee and completed the reassessment restricting the exemption u/s 10AA to the extent of Rs.2,07,74,719/- as against the claim made by the assessee at Rs.2,74,13,088/-. Accordingly computed the total income at Rs.1,06,53,269/- as against the originally determined income of Rs.40,14,900/-. 2.1. In the reassessment proceedings, from the Schedule –I, pertains to sales forming part of profit and loss account the AO found that the assessee had admitted the total turnover of the business at Rs.30,18,95,670/- and export sales of Rs.20,05,69,300/-. Since profit and loss account was consisting of both the domestic sales as well as the export sales, the AO was under the opinion that the assessee has not maintained the separate books of accounts for export sales pertaining to the unit which was located at Visakhapatnam Special Economic Zone (VSEZ). Hence, viewed that the deduction u/s 10AA has to be allowed on profits, proportionate to the
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export sales. Therefore, computed the deduction u/s 10AA proportionately to the export turnover and accordingly worked out the profit relatable to the 10AA unit at Rs.2,07,74,719/- and the same was allowed as exemption.
Against the order of the AO, the assessee went on appeal before the CIT(A) and challenged the order of the AO both technically as well as on merits. The Ld.CIT(A) considered the submissions of the Ld.AR and observed that the assessment in this case was originally completed u/s 143(3) of the Act and the notice u/s 148 was issued subsequently after expiry of 4 years from the relevant assessment year. The Ld.CIT(A) found that the assessee had furnished all the details relating to the deduction u/s 10AA during the original assessment proceedings and there was no failure on the part of the assessee in furnishing the details required for assessment. Since there was no failure on the part of the assessee, the Ld.CIT(A) held that that the notice issued u/s 148 is invalid and consequent reassessment u/s 147 r.w.s. 143(3) was void-ab-initio. The Ld.CIT(A) followed the order of this Tribunal in the case of Ganesh Associates & Developers vide order dated 09.09.2016.
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Against the order of the Ld.CIT(A), the revenue is in appeal before this Tribunal. During the appeal hearing, the Ld.DR argued that though, it is not specifically mentioned in the reasons recorded for reopening of assessment that there is a failure of the assessee to disclose truly and fully all material facts, the fact remains that the assessee had only furnished the consolidated P&L account for the entire business and claimed deduction u/s 10AA for SEZ unit as if it is an independent unit with separate books of accounts. In Form No.56F, the assessee has reported the consolidated turnover of all three units and claimed the deduction u/s 10AA separately on export unit. The Ld.DR contended that the assessee is not maintaining the separate books of accounts as required u/s 10AA and maintained common books of accounts, hence, deduction u/s 10AA is required to be allowed proportionately, therefore, argued that the AO has rightly reopened the assessment, accordingly, requested to set aside the order of the Ld.CIT(A) and uphold the issue of notice u/s 148 of the Act.
On the other hand, the Ld.AR relied on the order of the Ld.CIT(A) and argued that no interference is required in this case.
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We have heard both the parties and perused the material placed on record. The assessee is engaged in the manufacture and export of chrome concentrate. The assessee is operating 3 independent units viz (i) trading unit (ii) SEZ Unit (iii) manufacturing unit. Income of the VSEZ unit is entitled for exemption u/s 10AA of the Act.In this case, assessment was originally completed u/s 143(3) after verification of the complete details filed by the assessee during the assessment. In the paper book, the assessee has furnished Form No.56F, wherein the assessee has worked out the exempted income at Rs.2,73,73,054/- which was claimed as deduction u/s 10AA of the Act. Total turnover was reported at Rs.30.18 crores and the gross profit derived by the assessee was worked out at Rs.3.06 crores and more specifically profits derived from the undertaking was worked out to Rs.2,73,73,054/-. The assessee also furnished the consolidated P&L account, Balance Sheet before the AO. The assessee claimed the deduction u/s 10AA in the computation of income for an amount of Rs.2,73,73,054/-. The AO issued notice u/s 142(1) on 17.01.2011 which is enclosed to the paper bookin page nos. 19 to 28. In question No.19, the AO specifically requested the assessee to furnish the details if any with regard to tax free income. In response the assessee has furnished the details stating that the
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assessee is having a separate processing unit at VSEZ, Visakhapatnam. Separate set of books of documents have been maintained. The profit from the unit has been claimed as exemption u/s 10AA of the Act, since the unit is located at SEZ. Therefore, from the perusal of the information filed by the assessee before the AO in the original assessment proceedings, it is clearly observed that the assessee had furnished the entire details with regard to the deduction u/s 10AA of the Act and the AO has completed the assessment after verification of the details furnished by the assessee at the time of original assessment. Having filed Form No.56F, Profit & Loss account, Balance Sheet and furnishing the specific information in response to question No.19 of the questionnaire dated 17.01.2011 that the separate books of accounts have been maintained by the assessee, it is established that the assessee had furnished the complete details and there was no failure on the part of the assessee in furnishing true and correct details before the AO. Apart from the above, it is also noticed from the original assessment order dated 29.04.2011, that the assessee has produced the books of accounts which was verified by the AO and made certain disallowances under the head administrative expenses, foreign travel on account of self made vouchers. The AO has not given any finding with
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regard to non maintenance of separate books of accounts for 10AA unit. During the appeal hearing, the Ld.DR could not specify the details which were not furnished by the AR at the time of original assessment to hold that there was failure on the part of the assessee to furnish the details truly and correctly. As discussed earlier in this case, the assessment was reopened u/s 147 after 4 years and it is obligation on the part of the AO to establish that there is failure on the part of the assessee to furnish the details truly and correctly and the department failed to demonstrate that there was failure on the part of the assessee. The Ld.CIT(A) has also given the same finding that the assessee has maintained separate books of accounts for VSEZ, Visakhapatnam unit and there was no omission whatsoever on the part of the assessee. The Ld.CIT(A) has followed the decision of this Tribunal while quashing the notice in the case of Ganesh Associates & Developers dated 09.09.2016. Hon’ble Gujarat High Court in the case of Kumari Aditi Janmejay Vyas vs. Dy.Commissioner of Income Tax, 89 taxmann.com. 336 held that assumption of jurisdiction to reopen assessment beyond the period of four years was contrary to provisions of section 147 of the Act , if there is no failure on the part of the assessee to disclose all material facts necessary for assessment,. For the sake of clarity
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and convenience we extract relevant part of the order of the Hon’ble High Court of Gujarat which reads as under : “Section 14A, read with section 147 of the Income tax Act, 1961 - Expenditure incurred in relation to income not includible in total income (Reopening of assessment) - Assessment year 2009-10 - Assessee flied its return declaring certain taxable income - Assessing Officer completed assessment under section 143(3) - After expiry of tour years from end of relevant year, Assessing Officer sought to reopen assessment on ground that even though assessee had earned certain exempt income under section 10(34), yet no disallowance had been made under section 14A, read with rule SD - It was noted that assessee had disclosed interest expenses in profit and toss account and investment in balance sheet - Assessee had also disclosed exempt income in its return - Whether since there was no failure on part of assessee to disclose all material facts necessary for assessment, assumption of jurisdiction to reopen assessment beyond period of four years was contrary to provisions of section 147 - Held, yes - Whether, therefore, impugned reassessment proceedings deserved to be quashed - Held, yes [Para 6] [In favour of assessee]
6.1. In the instant case, there is no dispute that the assessment was reopened u/s 147 after expiry of 4 years and the revenue could not place any material to establish that there is a failure on the part of the assessee to disclose all material facts required for assessment. Therefore, we hold that the AO has wrongly invoked the jurisdiction. Accordingly, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the revenue.
On merits also, the AO made the disallowance u/s 10AA without examining the books of accounts. In the original assessment it appears that the assessee had produced the books of accounts and the AO made certain disallowances. No finding was given by the AO in original assessment with
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regard to non maintenance of separate books of accounts for 10AA unit. In the instant case, the assessee has filed separate trading account for both SEZ and manufacturing unit, P&L account and balance sheet separately. The assessee has stated that it has maintained separate books of account and worked out the Net profit of Rs.2,93,93,500/-, before reducing the interest earned on bank FDs of Rs.20,20,444/-,thus, the profit from SEZ unit worked out to Rs.2,73,73,054/- which was claimed as exemption. The assessee is trading in bauxite which is relating to domestic sales and the SEZ is dealing in Chrome Concentrate, both are different products. From the information filed in the paper book, these are taken separately by the assessee. The AO after verifying the books of accounts, instead of working out the actual profit of the SEZ unit, resorted for proportionate disallowance of exemption claimed by the assessee which is highly arbitrary. When the material is placed before the AO, it is for the AO to examine the books and work out the correct amount of profit related to the exempted unit unless there is any defect in the books of account. As per the Trading & Profit & Loss account, the profit derived by the assessee in respect of VSEZ unit which is eligible for deduction u/s 10AA was Rs.2,73,73,054/-. Therefore, we hold that on merits also, the assessee is
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entitled for deduction u/s 10AA to the extent of Rs.2,73,73,054/- as allowed originally. Accordingly, we do not see any reason to interfere with the order of the Ld.CIT(A) and the same is upheld.
Cross objections filed by the assessee are supportive of the order of the Ld.CIT(A). Since the appeal of the revenue is dismissed, cross objections of the assessee becomes infructuous, hence, dismissed.
In the result, appeal of the revenue as well as the cross objections of the assessee are dismissed.
Order pronounced in the open court on 23rd April, 2019.
Sd/- Sd/- (िी.दुगाा राि) (धड.एस. सुन्दर धसंह) (V. DURGA RAO) (D.S. SUNDER SINGH) न्याधयक सदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER नवशधखधपटणम /Visakhapatnam नििधंक /Dated : 23.04.2019 L.Rama, SPS
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आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. रधजस्व/ The Revenue – Asst.Commissioner of Income Tax, Circle-3(1), Visakhapatnam 2. निर्धाऩरती/ The Assessee- M/s Minimet Refractory Solutions Pvt. Ltd., (formerly known as Almag Marketting (India) Pvt. Ltd.), 101-B, Sri Venkateswara Towers, 5th Lane, Dwaraka Nagar, Visakhapatnam 3. The Pr.Commissioner of Income Tax-1,Visakhapatnam 4. The Commissioner of Income-Tax (Appeals)-1, Visakhapatnam 5. तिभागीय प्रतितिति, आयकर अिीिीय अतिकरण, तिशाखािटणम /DR, ITAT, Visakhapatnam 6.गार्डफ़ाईि / Guard file आदेशािुसार / BY ORDER // True Copy //
Sr. Private Secretary ITAT, Visakhapatnam