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Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI A. MOHAN ALANKAMONY
आदेश /O R D E R
PER N.R.S. GANESAN, JUDICIAL MEMBER:
This appeal of the Revenue is directed against the order of the Commissioner of Income Tax (Appeals) -15, Chennai, dated 28.09.2017 and pertains to assessment year 2009-10.
The first issue arises for consideration is with regard to direction of the CIT(Appeals) to exclude the expenditure incurred in foreign currency both from export turnover and total turnover for the purpose of deduction under Section 10A of the Income-tax Act, 1961 (in short 'the Act').
We heard Shri Guru Bashyam, the Ld. Departmental Representative and Sh. SP. Chidambaram, the Ld.counsel for the assessee. The only contention of the Revenue before this Tribunal is that the appeal filed by the Revenue against the order of the Special Bench of this Tribunal in ITO v. Sak Soft Limited (2009) 313 ITR (AT) 353 is pending before the High Court and it has not attained finality. This Tribunal is of the considered opinion that when the Special Bench of this Tribunal decided the matter, it is binding on all other Benches. It is not the case of the Revenue that the order of this Tribunal in Sak Soft Limited (supra) is stayed by the High Court. In those circumstances, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly followed the order of this Tribunal in the case of Sak Soft Limited (supra).
Even otherwise, the denominator and numerator should be of the same factor. Therefore, once it was taken as export turnover, it should be taken as total turnover also. In this case, the Assessing Officer has taken the expenditure made in foreign currency as export turnover. However, the same was excluded from the total turnover. Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly directed the Assessing Officer to exclude the expenditure incurred in foreign currency both from export turnover and total turnover. Hence the order of the CIT(Appeals) is confirmed.
The next issue arises for consideration is direction of the CIT(Appeals) to examine the case of exemption under Section 10A of the Act in respect of Unit II.
Having heard the Ld. D.R. and the Ld.counsel for the assessee, this Tribunal is of the considered opinion that when the assessee made claim in respect of Unit II, it has to be examined.
The CIT(Appeals) may not have power to set aside the order of the Assessing Officer for re-examination. However, the matter needs to be re-examined by the Assessing Officer. Therefore, in exercise of power conferred on this Tribunal, the Assessing Officer is directed to re-examine the matter in respect of Unit II also.
The next issue arises for consideration is claim of surcharge and education cess for the purpose of computing MAT credit. The CIT(Appeals) directed the Assessing Officer to allow the MAT credit after verification. The objection of the Department is that the CIT(Appeals) has no power to direct the Assessing Officer to verify.
However, the MAT credit has to be verified before allowing the claim. The surcharge and education cess are part of income-tax as held by Apex Court in CIT v. K. Srinivasan (1972) 83 ITR 346.
Therefore, in exercise of power conferred on this Tribunal, the Assessing Officer is directed to verify the claim of the assessee and thereafter allow the claim with regard to MAT credit. In view of the above, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the court on 16th November, 2018 at Chennai.