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Income Tax Appellate Tribunal, “A” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri C.N. Prasad (JM)
O R D E R Per Shamim Yahya (JM) :-
These appeals by the Revenue against common order of learned CIT(A) dated 5.9.2018 pertaining to A.Y. 2013-14 and 2014-15.
Common grounds of appeal
read as under :-
1. On the facts and circumstances of the case and in law the Ld. CIT (A) has erred in allowing the deduction Rs. 2,08,63,034/- (for A.Y. 2014-15 Rs. 2,55,97,817) u/s. 10AA of the I.T. Act without appreciating the fact that though the deduction is unit; specific, the beneficial owner of the unit was the proprietor concern and not partnership firm and there was no fresh approval from SEZ in respect of the partnership firm, viz. Ms. Lorey Jewel for claiming deduction u/s. 10AA of the Income-tax Act.
2. On the facts and circumstances of the case and in law, the Ld. CIT (A) has failed to appreciate the fact that in Form 56F the deduction was claimed in the name of proprietary concern whereas the business was taken over by the partnership firm, for which no fresh approval had been obtained.
3. The appellant prays that the order of the CIT (Appeals) on the above grounds be set aside and that of AO be restored.
2 M/s. Lorey Jewel
Brief facts of the case are being discussed hereunder with reference to facts and figures for A.Y. 2013-14, since facts for both years are identical. The disallowance u/s. 10AA in this regard was made by the Assessing Officer by holding as under :- In the computation of Income, the assessee had shown Gross total income of Rs.2,08,63,034/- which entire amount was claimed as deduction u/s. 10A, resulting in total income shown at Rs. Nil. Vide questionnaire submitted to AR on 01.12.2015 the query was raised to assessee in respect of the deduction claimed.
In response, the AR in his letter dtd. 18.01.2015 submitted details of various other queries, however no details or explanation was submitted in respect of deduction claimed. Incidentally, in response to other query requiring to submit copy of all Partnership Deeds since beginning till date, the AR submitted a copy of Partnership Deed dtd. 26.06.2012. On going through said partnership deed, it appeared that prior to the execution of this deed, the M/s. Lorey Jewel was run as a proprietary concern of Mr. Albert Kallati. By this deed of Partnership his daughter Ms. Reout Kallati joined in business as a partner to carry on the business in name of M/s. Lorey Jewel. The recitals of said Partnership deed stated that Mr. Albert Kallati has applied to the Development Commissioner SEEPZ-SEZ for setting up a unit in Seepz Special Economic Zone vide application dtd. 16,09.2008, 15.10.2008 and 10.11.2008 in the name of Kallati Jewels. The said Albert Kallati applied for change of name to Lorey Jewel from Kallati Jewels. The approval for the same was received vide letter dtd. 10.06.2011. The partner of the first part, Albert Kallati, having now received requisite approvals and permissions decided to invite his daughter Ms. Reout Kallati to join the business as a partner of M/s. Lorey Jewel.
In view of the fact that the assessee firm M/s Lorey Jewel came in existence since 01.04.2012 as per said Deed of Partnership, whereas the approval of SEZ was received prior to that in name of M/s. Lorey Jewel as a proprietary concern of Mr. Albert Kallati, the claim of any deduction by Lorey Jewel as a proprietary concern the claim of any deduction by Lorey Jewel as a partnership firm was considered to be highly questionable. Hence, vide notice u/s. 142(1) dtd. 17.03.2016 the facts were brought to the notice of the assessee, and the assessee was asked to provide the documentary evidence that it was holding a valid letter issued by Development Commissioner to set up a unit in a SEZ as per sec 10AA. The assessee was further show caused as to why Alternate Minimum Tax u/s. 115JC to 115jF should not be levied. The assessee was also asked to submit personal return of income of Mr. Albert Kallati. Further in Form 56F from A CA which also the assessee had failed to provide. In view of the above, the assessee was show caused as to why the deduction claimed u/s. 10AA should not be disallowed.
In response, vide letter dtd. 20.03.2016 the AR submitted his reply. The submission made by the assessee are considered but not found to be acceptable. A close perusal of letters of SE2 shows that there are two
3 M/s. Lorey Jewel different Letter of Apprcnal of SEZ in place given to two different manufacturing units of Mr. Albert Kallati in his individual capacity. In name of Kallati Jewels vide letter dtd. 18.10.2004 for setting up unit in Gala No. 186/C, which unit commenced production activities w.e.f 01.08.2005 and the LOA is valid till 31.03.2015 & in the name of Lorey Jewel vide letter dtd. 04.01.2010 for setting up unit in Gala No. 186/B, which unit commenced production activities w.e.f. 28.09.2011 and the LOA is valid till 27.09.2016. Mr. Albert Kallati was carrying on the manufacturing activity from above two nearby locations. Earlier in one proprietary concern M/s. Kallati Jewels, and thereafter in two different proprietary concerns. It is interesting to note that in Form 56F the Auditors have given Report u/s. 10A, stating that they have examined the accounts and records of Albert Kallati, and the Annexures A to said report gives details relating to claim of deduction in name of Lorey Jewel for AY 2013-14 at Rs.2,08,63,034/-. The name and PAN mentioned is that of Mr. Albert Kallati, whereas the deduction of Rs.2,08,63,034/- is as claimed by assessee firm. It appears that the Auditors do not recognize any difference between Mr. Albert Kallati & the assessee. This is completely unacceptable under any circumstance, since both are separate legal entities. In view of the above, the entire deduction claimed by assessee firm U/s. 10AA of Rs.2,08,63,034/- is disallowed, and added back to total income of the assessee."
Upon assessee’s appeal learned CIT(A) noted the submissions of the assessee. As regards the issue of receipt of foreign exchange for export proceeds he noted that in remand proceedings Assessing Officer has accepted the same. As regards disallowance of deduction u/s. 10AA the learned CIT(A) culled out following objections of the Assessing Officer. i) SEZ Authorities approved unit no.186-C in the name of Kallati Jewels, proprietor Mr. Aiberi KalJati vide their letter dated 18.10.2004 and in this unit, Mr. Albert Kallati commenced production activities w.e.f. 01.08.2005 and the Letter of Approval of SEZ for this unit is valid till 31.03.2015, ii) SEZ authorities vide their letter dated 04.01.2010 gave letter of approval for setting up another unit namely unit no.l86-B in the name of KalJati Jewel, which name was changed to Lorey Jewel - proprietor being Mr. Albert Kallati. The production from this unit commenced
4 M/s. Lorey Jewel w.e.f. 28.09.2011 and the SEZ approval letter is valid till 27.09.2016 for this unit; iii) Thus, both the above units were set up as proprietary concern of Mr. Albert Kallati; iv) Mr. Albert Kallati subsequently formed a Partnership Firm alongwith his daughter - in the name of M/s. Lorey Jewel (the present appellant) vide partnership deed dated 26.06.2012 (effective from 01.04.2012) having the main object to take over the ongoing business of his proprietary concern Lorey Jewel, which was functioning from unit no. 186-B; v) No fresh approval is taken from SEZ authorities in the name of Partnership Firm M/s. Lorey Jewel to carry out production activities from the unit no. 186-B. "Since the individual and partnership firms are two separate legal entities and upon formation of partnership firm, the unit 186-B is transferred to partnership firm u/s.2(47) of the Act, the permission and approval granted to seller party [i.e. juorey Jewel proprietor Mr. Albert Kallati in this case] does not automatically pass to the buyer party [i.e. Lorey Jewel, partnership firm - in this case] without approval of SEZ authorities; vi) Even the auditors in Form 56F have not differentiated between the proprietary concern and the partnership firm as the auditors has mentioned the name and PAN of the proprietor Mr. Albert Kallati, which is unacceptable as both are separate legal entities; vii) Details of export proceeds received in convertible foreign currency is not submitted either in Form 56F or in course of assessment proceedings, even though specifically called for, the deduction u/s. l0AA of the Act cannot be allowed.
5 M/s. Lorey Jewel
Thereafter learned CIT(A) noted that the deduction of section 10AA is unit specific and it is not dependent upon the ownership. For this proposition he placed reliance upon several case laws learned CIT(A) held as under :- 4.9. I have gone through the provisions of section 10AA of the Act. As per the provisions of section 10AA of the Act and more particularly sub-clause (i) to subsection (1) of Section 10AA of the Act, the deduction is allowed of the 100% of profits derived from the export for a period of 5 consecutive assessment years beginning with the assessment year relevant to the previous year in which the UNIT begins to manufacture or produce & 50% thereafter for further 5 years. Thus, from the bare reading of the provisions of section 10AA of the Act, the deduction is vis-a-vis the UNIT which begins to manufacture or produce the articles or goods, and not the entity. The legislature has thus allowed the deduction Unit specific and NOT entity specific. Further, in sub-section 4 to section 10AA of the Act, the emphasis given is to the Unit and not assessee or the legal entity carrying out the operation from the said unit. In other words, the Legislature in its wisdom has though it fit to allow the deduction under section 10AA of the Act to whosoever is carrying out the manufacture or production from such unit, which is being exported.
4.10 In the facts of the present case of the appellant, the unit 186/B was initially set up and manufacturing activity commenced by the proprietor namely Mr. Albert Kallati, which was then taken over by partnership firm namely Lorey Jewel wherein the partners were Mr. Albert Kallati and his daughter Ms. Leout Kallati. The nature of business carried out from the unit remain same i.e. manufacture and export of stuffed gold and diamond jewellery. Therefore in my view, the appellant has rightly claimed the deduction under section 10AA of the Act and merely because there is change in constitution, the same does not debar the appellant from claiming deduction u/s.l0AA of the Act. Having said so, the next question which arises is whether a separate approval is required from SEZ authorities for claiming deduction u/s. l0AA of the Act. There is no such provision in section 10AA of the Act. Further, from the details filed, the appellant has duly intimated to the SEZ authorities about the change in constitution. It appears that the SEZ authorities also recognize the Unit and not the entity since the SEZ authorities grant approval in respect of the Unit for carrying on the business activity. The reasoning appears to be the same since if the SEZ authorities recognize only the entity for giving letter of approval, then the same would be contrary to provisions of section 10AA of the Act and by mere change in constitution, the assessee would start claiming deduction of 100% profits from the said Unit even though it may be a case, where 100% profits deduction for the first five years is already allowed to entity carrying on the business from that very Unit in SEZ.
4.11 The appellant has relied upon decisions in their submissions, which in my view directly covers the issue at hand. The Hon'ble Allahabad HC in the case of CIT v. Bullet International (2012) 349 ITR 267 (All) dealt with the same issue arising in the present case of the appellant. In that case also, there was change in constitution from proprietary concern to partnership
6 M/s. Lorey Jewel firm and the issue arose whether the partnership firm is entitled to deduction u/s.l0A of the Act. The High Court relied upon the circular issued by CBDT and allowed the claim of deduction u/s.l0A of the Act. Similarly, the decision relied upon in the case of Samsung India Software Operations P. Ltd v. ACIT (Bang) ITAT- unreported (copy filed in Paper book), wherein the facts were that deduction u/s.l0A of the Act was sought to be claimed in respect of the undertaking purchased via slump sale. The argument placed in that case was that the deduction is undertaking (unit) specific and the same could not be denied on the ground that the undertaking (unit) has a new owner. The ITAT therein relied upon earlier decisions of the ITAT on the same issue and held that a mere organizational change was not a ground for the AO to hold that the assessee was not entitled for deduction u/s. 10A of the Act within the meaning of section 10A(2) of the Act. Thus, in view of the above and respectfully following the aforesaid referred to earlier order of the coordinate Bench, we set aside the impugned order passed by the Id. CIT(A) and direct the AO to allow the claim of the assessee for deduction u/s. l0A of the Act.
4.12 In view of the above, the appellant is eligible for claim of deduction u/s. l0AA of the Act. With respect to the issue of realization of convertible foreign currency on export proceeds, the AO has duly verified the same and called for various details in the remand proceedings and nothing adverse is stated in respect to the same. The only grievance of the AO in the remand proceedings in respect of this issue of realization of export proceeds in convertible foreign currency is that the details were not filed in the course of assessment proceedings and thus, the details now filed as additional evidence may not be accepted. Here also, I have gone through various correspondences between the AO and the appellant. In the letter filed to the AO dated 02.02.2016, in point no. (vii) the appellant has specifically clarified the mistake occurred in Form 56F and categorically stated that the details of foreign exchange received is submitted. The AO has thereafter issued final notice dated 17.03.2016 after going through the submission made by appellant vide its letter dated 02.02.2016 and once again sought for final submission in respect of certain queries for allowability of deduction u/s. l0AA of the Act and in this final query notice, there is no mention by the AO of non-submission of details of realization of export proceeds and neither stated in the notice that these details are not submitted in spite of giving opportunities. In any case, the AO has been given opportunity for verifying the same which has subsequently been verified and the same have been found to be in order. Hence, the ground taken by the AO in the assessment order for denying the claim of deduction u/s. l0AA of the Act does not survive anymore.
Against the above order the Revenue is in appeals before us.
We have heard both the counsel and perused the records. The sole issue in dispute in the case is eligibility of deduction u/s. 10AA by the assessee. Assessment unit is the same. However, there is change in the ownership from 7 M/s. Lorey Jewel sole proprietorship to partnership. Earlier unit was under the proprietorship of Mr. Albert Kallati and same was taken over by the partnership firm namely Lorey Jewel wherein the partners were Mr. Albert Kallati and his daughter. Nature of business carried out from the unit remains same. Unit remains approved by the SEZ authority. No case has been made out the SEZ authorities have revoked approval. Similar issue has been dealt with by Hon'ble Allahabad High Court in the case of in the case of CIT Vs. Bullet International (349 ITR 267. On similar issue of deduction u/s. 10A for change in constitution from proprietorship to partnership firm, Hon'ble High Court relied upon Circular issued by CBDT and allowed the claim. Similar view was taken by the ITAT in the case of Samsung India Software Operations P. Ltd. Vs. ACIT Bangalore. Grounds for relief were that deduction is undertaking (unit) specific and the same could not be denied on the ground that undertaking has a new owner. In our considered opinion issue from these case laws are squarely applicable under the facts of the present case also. In this view of the matter, in our considered opinion issue raised by the Revenue is covered against the Revenue by the aforesaid decisions. Accordingly, following the above precedent, we uphold the order of learned CIT(A).
In the result, these appeals by the Revenue stand dismissed. Order has been pronounced in the Court on 02.03.2020.