ITO 15(1)(4), MUMBAI vs. DUTY DISTRIBUTION SERVICES PVT. LTD., NAVI MUMBAI

Assessee by: Shri J. P. Bairagra Department by: Shri Saurabh Deshpande(DR) Date of Hearing: 01.05.2018 Date of Pronouncement: 22.06.2018 O R D E R

PER AMARJIT SINGH, JM:

(i) On the facts and in the circumstances of the case and in Law, the Ld.CIT(A) Mumbai erred in holding that the assessee is eligible for deduction u/s.10AA of the IT, Act in respect of profits of SEZ unit amounting to Rs.2,82,47,713/-". (ii) "On the facts and in the circumstances of the case and in Law, the Ld.CIT{A}, Mumbai erred in holding that the assessee is eligible for deduction in respect of profits of SEZ unit without appreciating the fact that the claim of the assesses as a service provider could not be considered with reference to the definition of 'Services' as provided in the SEZ Act for claiming deduction u/s.10AA of the Act." (iii) he appellant craves leave to add amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of appeal. (iv) The appellant prays that the order of Ld.CIT(A)on the above ground be set aside and that of the Assessing Officer be restored.”

4. The brief facts of the case are that the assessee company was engaged in the business of Importer and exporter of goods in the nature of alcoholic products, cigarettes, confectionaries, high quality watches etc. The return of income was filed declaring the income to the tune of Rs.Nil. The assessee computed the gross income to the tune of Rs.1,35,18,914/- and claimed exemption u/s 10AA of the Act(100% deduction of profit of SEZ) offering Nil income to tax. On verification, it was found that the assessee was not eligible for exemption u/s 10AA of the Act. As per Section 10AA(5) of the Act, ITA. No.6198/M/16 & 6199/M/16 A.Y. 2012-13 & 2009-10 the exemption was not admissible for the assessment year unless the assessee furnished in the prescribed Forms (as per rule 16D and Form no. 56F) along with the return of income, the report of accountant as defined below Explanation sub-section 288 of the Act, certifying that the deduction has been claimed in accordance with law provision exemption u/s 10AA of the Act. The assessee was engaged purely in trading activity which has been reported in Form no. 3CB para 28A vis a vis 28B. The deduction u/s 10AA of the Act was allowable only to be under taken which exports the articles products/manufacturer by it. Since the assessee was not the manufacturer/producer and merely trader so the exemption u/s 10AA of the Act was not allowable. The case was taken up in view of the order u/s 263 of the Act and notice was given and after getting the reply, the claim of the assessee was declined. The total income of the assessee was assessed to the tune of Rs.2,82,89,040/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who allowed the claim of the assessee, therefore, the revenue has filed the present appeal before us. ISSUE NOs.1& 2:- 5. Both the issues are in connection with the allowance of claim of the assessee u/s 10AA of the I.T. Act, 1961 in respect of profits of SEZ unit amounting to Rs.2,82,47,713/-. The Assessing Officer disallowed the claim of the assessee on account of this fact that the assessee failed to furnish form as per Rule 16D and Form no. 56F of & 6199/M/16 A.Y. 2012-13 & 2009-10 the Act with the return of income and the assessee was involved in trading activities. The Assessing Officer is also view that the deduction u/s 10AA of the Act was allowable only to the undertaking which export the articles products/manufacturer by it. The assessee filed an appeal against the said order before the CIT(A) who allowed the claim of the assessee. The contention of the Ld. Representative of the Department is that the case of the assessee does not come within the ambit of necessary condition of SEZ for claiming deduction us/ 10AA of the Act, therefore, the CIT(A) has wrongly allowed the exemption u/s 10AA of the Act, therefore, the finding of the CIT(A) is not justifiable and is liable to be set aside. However, on the other hand, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deemed it necessary to advert the finding of the CIT(A) on record: - “2.4.2 Ground No. 2 Is general in nature and hence, need riot be adjudicated separately. 2.4.3 Before coming to the merits of the disallowance which has been agitated vide Ground Nos. 3 to 5, it is important to note that the appellant vide Ground No. 6 has refuted the Ld. AO's observation that it had not obtained and filed Audit Report in Form No. 56F during the course of the assessment proceedings. In this regard, it has been stated that under the e-filing system, no attachment can be filed with the Return electronically filed with the Department and hence, unless the Ld AO required Audit Report to be submitted, it could not have been done Further, it has also been stated that the said Audit Report was produced before the Ld AO in the proceedings u/s 263 and obviously the same was available before the Ld, AO even in the proceedings giving effect to & 6199/M/16 A.Y. 2012-13 & 2009-10 the Order u/s 263 and hence, the observations made by the Ld. AO are incorrect 2.4.4 Having considered the issue and the material available on record, it is seen that the Audit Report in Form No. 56F was filed with the AO in the course of proceedings u/s 263 of the Act. Further, as per Circular No.03/2009 of the CBDT, it has been provided that the Returns to be furnished electronically shall not be accompanied by any attachments/annexures and as per clause 7(ii) therein, if called for by any Income Tax authority during any proceedings under the Act, it shall be incumbent upon the assessee to furnish/produce the document including any statutory form or report of Audit. Moreover, the said Audit Report in Form No.56F was also filed before Ld. AO during the course of the proceedings impugned before me, vide appellant's letter dated 23.022015, a copy of which has also been produced during the course of the current appellate proceedings. The appellant has also placed reliance on the following decisions in support of the claim that even if the Audit Report in Form No. 56F is filed at the appellate stage, the benefit of exemption u/s 10A cannot be denied: 1. CIT, Central Circle vs American Data Solutions India (P) Ltd. [2014] 45 taxmann.com 379 (Karnataka) 2. ITO, Ward-2(3), Kolkata v. Last Peak Data (p) Ltd. (2015) 63 taxmann.com 45 (Kolkata Trib.) 3. CIT-II Vs. Mantec Consultants (P) Ltd. (2009) 178 Taxman 429 (Delhi). 2.4.5 In view of the above and the fad that Ld AO has not found any fault with Audit Report in Form rjo.56F available on his record during the proceedings giving effect to Order u/s 263, i am constrained to hold that exemption u/s 10A could not have been denied for this reason. However, as regards the merits, I shall now turn to Ground Nos.3to5. 2.4.6 Ground No. 3 is against the action of the Ld. AO in not allowing deduction claimed by the appellant u/s 10AA of the Act. Ground Nos* 4 & 5 are also related to the above said Ground No. 3 and hence, these three grounds are being adjudicated simultaneously. Ld. AO disallowed the appellant's claim by holding that the appellant was neither a manufacturer nor a producer of & 6199/M/16 A.Y. 2012-13 & 2009-10 any article or things. Further, he also held that the appellant's claim that it was a service provider could not be considered with reference to the definition of the term 'services' as provided in the SEZ Act that the appellant wanted the Ld, AO to follow. Ld. AO further held that the provisions of a taxing statute dealing with machinery provisions have to be construed by the ordinary rules of construction and as the Legislature deliberately excluded the definition of 'services' from SEZ Act to be imported into the IT Act, the same could not be taken help of by the appellant for claiming exemption of its income as it was not doing any value addition. 24.7 Per Contra, during the course of the appellate proceedings, Ld. AR stated that Section 51 of the SEZ Act contains a non- obstante clause vide sub-section (1) stating that provisions of SEZ Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It was also brought to my notice that my Ld. Predecessor in A.Y. 2010-11 in appeal No. ClT(A)-22/ITO-10(3)(iyiT-18S/2013-14 dated 16.02.2015 had allowed the appellant's appeal by holding that sale to customers by the appellant done on a "bond to bond transfer" basis amounts to re-export and hence, it was eligible for deduction u/s 10AA of the Act. Similarly, in A.Y 2011-12 in appeal No ClT(A)-22/DCIT(OSD)-10(3)/JT-91/14-15 dated 19.02.2016 I had allowed the appeal following the above said decision. In this regard, further reliance is placed on the decisions of Hon'ble Mumbai Bench of ITAT in the case of Geetanjali Exports Corporation Ltd. and Geetanjali Gems Ltd. in lTANo. 6947 & 6948/Mum/2011 dated OB.05.2013. 2.4.8 In view of the fact that similar issue was also adjudicated in A.Ys. 2010-11 and 2011-12 and there being no change in the facts and circumstances in the present appeal, respectfully following the same, the ground raised are allowed in favour of the appellant.”

6. On appraisal of the above mentioned order, we noticed that the firstly the claim of the assessee was declined u/s 10AA of the Act on the ground of non-furnishing the form no. 56F of the Act. The CIT(A) analysis of record and arrived at this conclusion that the form no. 56F & 6199/M/16 A.Y. 2012-13 & 2009-10 of the Act has been furnished by assessee even the course of proceeding u/s 263 of the Act. The assessee filed the return of income electronically which was not accompanied by any annexure. Even at the time of filing the return, filing of the other documents are not necessary but are liable to be produced as when required by AO. The Form no. 56F of the Act was also produced by assessee before the CIT(A) by virtue of letter dated 23.02.2015. No doubt, in the said circumstances, the claim of the assessee is not liable to be declined u/s 10AA of the Act. The CIT(A) while passing the order relied upon the law mentioned above, therefore, there is no need to repeat the same. So far as decline the claim of Section 10AA of the Act on the ground of that the assessee was neither manufacturer nor any producer of articles or things we noticed that the CIT(A) has decided the matter of controversy on the basis of the decision of earlier year in the assessee’s own case. The CIT(A) also observed that the claim of the assessee was also allowed by the CIT(A) for the A.Y. 2010-11 & 2011-12. The CIT(A) has decided the matter of controversy in favour of the assessee on the basis of the decision of Hon’ble ITAT Mumbai in the case of Geetanjali Exports Corporation Ltd. in & 6948/M/2011 dated 08.05.2013. Nothing came into notice that the order of the CIT(A) has been reversed or varied in the appeal. No law contrary to the law relied by the CIT(A) has been produced before us. Taking into account, all the facts and circumstances of the mentioned above we are of the view that the ITA. No.6198/M/16 & 6199/M/16 A.Y. 2012-13 & 2009-10 CIT(A) has passed the order judiciously and correctly which is not liable to be interfere with at this appellate stage. Accordingly, these issues are decided in favour of the assessee against the revenue.

ISSUE NOs.3&4:- 7. Issue nos. 3 & 4 are formal in nature which nowhere required any adjudication. In the result, the appeal filed by the revenue is hereby ordered to be dismissed. :- 8. The Revenue has filed the present appeal against the order dated 20.07.2016 passed by the Commissioner of Income Tax (Appeals)-24, Mumbai, [hereinafter referred to as the “CIT(A)”] relevant to the assessment years 2009-10.