TECNIMONT ICB PVT. LTD,MUMBAI vs. THE ACIT,CIRCLE 9(3), MUMBAI

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, , , , मुंबई आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण मुंबई मुंबई “ ई” खंडपीठ मुंबई खंडपीठ खंडपीठ खंडपीठ Income-tax Appellate Tribunal -“E”Bench Mumbai सव"ी सव"ी राजे"" राजे"",लेखा लेखा सद"य सद"य एवं एवं, राम लाल नेगी राम लाल नेगी, "याियक "याियक सद"य सद"य सव"ी सव"ी राजे"" राजे"" लेखा लेखा सद"य सद"य एवं एवं राम लाल नेगी राम लाल नेगी "याियक "याियक सद"य सद"य Before S/Shri Rajendra,Accountant Member and Ram Lal Negi,Judicial Member आयकर अपील अपील संसंसंसं./I.T.A./1380/Mum/2009, िनधा"रण िनधा"रण वष" वष" /Assessment Year: 2004-05 आयकर आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" आयकर अपील अपील संसंसंसं./I.T.A./3874/Mum/2010, िनधा"रण िनधा"रण वष" वष" /Assessment Year: 2004-05 आयकर आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" Technimont ICB Pvt.Ltd. ACIT-9 504 Link Road, Chincholi Bunder Mumbai. Vs. Malad (W),Mumbai-400 064. PAN:AAACI 2628 B (अपीलाथ" /Appellant) (""यथ" / Respondent) Revenue by: Shri Manjunatha Swamy-CIT-DR Assessee by: Shri Nitesh Joshi सुनवाई क" तारीख / Date of Hearing: 16.03.2017 घोषणा क" तारीख / Date of Pronouncement:19.04.2017 आयकर आयकर आयकर अिधिनयम आयकर अिधिनयम अिधिनयम,1961 क" अिधिनयम क" क" धारा क" धारा धारा 254(1)केकेकेके अ"तग"त धारा अ"तग"त अ"तग"त आदे अ"तग"त आदे आदेश आदे Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा लेखा सद"य लेखा लेखा सद"य सद"य राजे"" सद"य राजे"" राजे"" केकेकेके अनुसार राजे"" अनुसार अनुसार PER RAJENDRA, AM- अनुसार Challenging the order dtd.16.12.2008 of the CIT-9,passed u/s. 263 of the Act,the assessee has filed the appeal for the above mentioned year.Assessee- company,engaged in the business of engineering design and construction activities, filed its return of income on 29/10/2004, declaring loss at Rs.93.92 lakhs and book profit u/s.115 JB at Rs.18.18 lakhs.Subsequently,a revised return was filed on 28/09/2005,declaring Loss of Rs.1.67 croresand book profit at Rs. 18,18,098/-.The Assessing Officer(AO)completed the assessment u/s. 143 (3) of the Act, on 08/12/2006,determining its Loss at Rs.1.63 crores. During the course of hearing before us,grounds of appeal no.12 and 13 were not pressed. Hence,same stand dismissed as not pressed. Brief facts: 2.The CIT called for and examined the assessment records.Vide his notice, issued u/s. 263 (1) of the Act,on 28/11/2007,he observed that order passed by the AO for the year under appeal, was erroneous and prejudicial to the interest of revenue,that in the computation of total income the deduction u/s.10B as per the normal provisions of the income tax for computing total income as well as u/s.115JB of the Act had been claimed in excess, that while comput - ing the total income depreciation on export oriented unit’s assets were excluded, that while same were added back to profit in the profit and loss account, that the claim of the depreciation due to change in written down value should have been adopted on yearly basis, that for computation of book profit u/s.115JB the deduction u/s.10B should have been restricted to 90% of the profit of export oriented unit in view of the 2nd proviso to section 10B,that it had resulted in under assessment to the extent of Rs. 1.92 lakhs.On 10/10/2008,

the CIT issued a fresh notice u/s. 263 wherein he mentioned two more reasons for holding the order of the AO erroneous and prejudicial to the interest of revenue.On 05/12/2008,he issued one more notice for revising the order passed by the AO and observed that service charges of Rs.6.27 lakhs were erroneously considered as part of export turnover,that the turnover of Rs. 27.65 crores had to be reduced by the sum of Rs.6,27, 180/-,that total turnover was adapted at Rs.27.69 crores as against the actual turnover of Rs.27. 93 crores.The assessee filed detailed reply on all the three occasions. 3.After considering its submissions,the CIT held that the assessee had shown loss of Rs. 1.67 crores in the revised computation of income against which the AO had assessed the loss of Rs.1.63 crores,that as per the amended provisions of section 10B with effect from 01/04/ 2001,the deduction of such profit and gains as computed u/s.10B(4)of the Act had to be allowed from the total income of the assessee, that while computing the loss the assessee had first deducted a sum of Rs.12.85 crores u/s.10B which had been computed as profit derived from 100% EOU and unabsorbed depreciation of Rs. 2.03 crores carried forward from the AY.2002-03 had been deducted from the amount of income remaining after trimming exemption u/s.10B, that the claim of exemption u/s. 10B made by the assessee from the gross total income was not in accordance with the provisions of section 10B of the Act, that section provided for deduction of profit and gains of export oriented unit from the total income of the assessee,that in spite of unambiguous provisions the assessee had claimed deduction of Rs. 12.85 crores from the gross total income computed before set off of unabsorbed depreciation, that the order passed by the AO,accepting the computation of deduction under the said section,claimed by the assessee,under the normal provisions of the Act was erroneous and prejudicial to the interest of revenue.He referred to the case of Sword Global (I)P Ltd. (306 ITR-AT-286) and held that there was no provision for allowing carry forward of unabsorbed deduction u/s.10B of the Act.With regard computation of income u/s. 115 JB of the Act ,he held that deduction u/s.10B was worked out at Rs.12.85 crores,that clause II to explanation 115 JB provided that amount of income -to which any of the provisions of section 10B A or 10B or section 11or12 would apply-had to be reduced from the book profit if such amount was credited to the profit and loss account,that for purpose of computation of book profit the amount of deduction to which the assessee was entitled,as per law,had to be reduced from the book profit,that the AO had accepted the computation of book profit shown by the assessee after reducing the entire profit of the business of the undertaking, that the amount of deduction of Rs.12.85 crores claimed by the assessee was not in accordance with the provisions of section 10B (4),that the term export turnover would mean the consideration of articles or things or computer software received in, or brought into, India by the assessee in convertible foreign exchange in accordance with subsection (3), that it did not include freight telecommunication charges or insurance attributable to the delivery of the articles or things or computer software outside India or expenses,if any, incurred in foreign exchange in providing the technical services outside India, that the assessee has wrongly included service charges of Rs.6.27 lakhs a part of export turnover,that it had not excluded freight and insurance attributable to the delivery of the articles or things, that the export turnover had to be worked out as per the provisions contained in section 10B,that total turnover of the undertaking had been shown at Rs. 27.65 crores,that the said figure was incorrect representation of turnover amount, that total foreign exchange loss,claimed at Rs. 23.67 lakhs,did not pertain to the export made in the year under consideration, that amount of deduction u/s.10B,for the purpose of computation of book profit, could not exceed the amount of deduction to which the assessee was entitled u/s. 10B, as per the normal provisions. Finally, he held that order passed by the AO was erroneous and prejudicial to the interest of revenue due to incorrect application of law and also non-application of mind,that he had not computed the book profit as per the provisions of section 115 JB, that there was no discussion the assessment order on the issue at all, that there was no deliberation about deduction u/s. 10B of the Act in the order. With regard to computation of depreciation,the CIT directed the AO verify the claim of the assessee and allow the same. As regards restriction on deduction u/s. 10B to the extent of 90% of the profit derived by hundred percent EOU, he observed that claim made by the assessee was as per law, that the said restriction applied for the AY. 2003-04 only.

4.During the course of hearing before us,the Authorised Representative (AR) argued that the order passed by the AO u/s.143(3) of the Act was neither erroneous nor prejudicial to the interest of revenue, that the AO had applied his mind while finalising the scrutiny assessment, the issues raised by the CIT in various show cause notices were covered in favour of the assessee, that two views were possible in all the issues raised by the CIT, while computing the total income the assessee had first claimed the deduction u/s. 10B of Rs.12.85 crores, that thereafter it reduced the brought forward unabsorbed depreciation of Rs.2.03 crores pertain - ing to non-EOU unit, that in the revisionary order order the CIT first reduced the unabsorbed depreciation and thereafter allowed the deduction u/s. 10B from the total income of the assessee,that during the year under consideration it had exported engineering designs to its parent company as per the specification,that exemption for such export was claimed u/s. 10B, 3

that to ensure the quality of designs the parent company had sent its representative to India to supervise the development work related to export of services,that it had incurred certain expenses like Hotel charges,travel tickets of the representatives and had charged such expenses back to the parent company after adding service charges totalling to Rs.6.27 lakhs, that it received payment for this in India in foreign currency, that the service charges received in foreign currency had a close and direct nexus with export activities of the engineering designs,that same had been considered to be part of export turnover for the purpose of section 10B, that the CIT had held that assessee had wrongly included the service charges as part of export turnover for the purpose of claiming deduction u/s. 10B, that export turnover included consideration for export that was brought into India income in convertible foreign exchange but excluded certain items, that service charges were brought into India and they did not fall in any of the classes of receipts that had been excluded from the definition of export turnover, that it had correctly included the service charges in export turnover.Alternatively, it was argued that if service charges were to be excluded from export turnover they should also be excluded from the total turnover. With regard to foreign exchange loss of Rs. 23.67 lakhs,he argued that while computing the total turnover/export turnover for the purpose of computing exemption u/s. 10B the assessee had excluded foreign exchange loss, the CIT had held that foreign exchange loss did not pertain to the export made in the year under consideration,that the gain due to fluctuation in foreign exchange rate emanating from exports was its integral part, that when goods were exported such invoices raised in the currency of the country from where the goods were sold, that when the amounts were realised in that foreign currency and converted into Indian rupees the entire amounts would relate to the exports made, that it was only the translation of invoice value from the foreign currency to Indian currency Rupees, that irrespective of the fact that the Indian currency had assumed northward or southward vis- a-vis the other foreign currency the amount realised in Indian rupees would remain attribut - able to exports made in foreign currency, that for the purpose of this computing the book profit u/s.115 JB, the assessee had added back expenses of Rs. 14.81crores relating to the EOU division and had reduced the income of Rs. 27.69 crores relating to EOU division from the total profits as per the books of accounts in accordance with the provisions of section 115 JB, that the CIT had held that for purpose of computation of book profit only the amount of deduction to which assessee was entitled was to be reduced from the book profit, that under the provisions of section 115 JB both the items i.e. expenditure and income related to an undertaking whose profits were exempt,had to be taken out of the purview of book profit liable to tax,that for the purpose of computing the book profit no adjustment was permitted 4

other than those which were specified under explanation to section 115 JB and was normal computation of income would not have any bearing on the computation of book profit. He relied upon the cases of People Interactive I Private Ltd.’s(ITA/3558 and 3717/ Mum/2016) Gabriel India Ltd. (203 ITR 108),Yokogawa India Ltd (77 taxmann. com.41), Gam plus Jewellery India Ltd.(330 ITR 175)Tata Elxsi Ltd. (349 ITR 98)and Moser Baer India Ltd. (17SOT510B).He is also referred to the assessee’s own appeal for the AY. 2002-03 (ITA/ 3873/ Mumbai/2010) and the decision of the Hon’ble Bombay High Court for the same AY. The Departmental Representative(DR)strongly supported the order of the CIT.

5.We have heard the rival submissions and perused the material before us.We find that the AO had completed the assessment u/s.143(3)of the Act,that he had asked the assessee to file justify the claim made by it u/s.10B of the,that he made inquiries about computation u/s.115 JB of the Act,that the CIT had issued three notices to the assessee revise the assessment on following grounds: i. Grant of deduction under section 10B before set off of unabsorbed depreciation relating to non- eligible undertaking. ii. reduction of book profits for the purpose of section 115JB based on book profits as against tax profits iii. inclusion of service charges as export turnover iv. reduction of foreign exchange loss from the total turnover v. Calculation of correct depreciation. The last issue was set aside,by the CIT,to the file of the AO.In the order giving effect to the directions of the CIT,he found that claim made by the assessee was as per law. Therefore,the assessee did not agitated the issue before us. As per the established principles of taxation jurisprudence,the CIT can revise the assessment passed by the AO,if he finds that the order passed by the AO is erroneous and prejudicial to the interest of revenue.The higher judicial forums have defined the terms ‘erroneous’as well as ‘prejudicial to the interest of revenue’.Unless and until the revisionary order is not justified on the touchstone of the twin preconditions,order passed,u/s.263 of the Act,cannot be upheld. Courts are of the opinion that if the AO has adopted one of the possible views revisionary order would be invalid.But,if only one view is possible about an issue and the AO has not followed that view,the CIT would be fully justified in revising such an order.If the AO has not applied his mind while determining the tax liability of an assessee,a revisionary action cannot be challenged.But,non application of mind has to be proved.Not calling for details and calling for details and not mentioning the same in the assessment order are two different things.In second type of matters,the assessee cannot be visited by revisionary provisions.If the AO chooses not to mention anything even after calling for details and going through the same,the assessee cannot be penalised for it.It cannot compel the AO to pass a detailed order covering all the issues.The legal presumption in such cases is that the AO had passed the scrutiny order after deliberating upon the material filed by the assessee. Considering these broad principles in mind,now,we would like to adjudicate the first two grounds of appeal that deal with validity of 263 proceedings. 5.1.We find that during the assessment proceedings,the assesse had filed details,in response to the notices issued u/s.142(1)and 143(2)of the Act,with regard to deduction u/s.10B and computation of profit u/s.115JB of the Act (Pg.s14-21).We find that the assessee,while justifying claim u/s.10B had referred to Notification No.SO.890(E)dtd.26.09.2000 and had mentioned that in all earlier AY.sprofits from EOU had been held to be exempt consistently. Besides,detailed computation,as per the MAT provisions,was also submitted.Thus,it is clear that the AO had sufficient material before him,while passing order u/s.143(3)of the Act and it has to be held that he had allowed deduction u/s.10B after considering that material.Similar is the position of computation made u/s.115JB of the Act.In short,the AO had formed an opinion after due deliberations. Here,we would like to refer to the case of Gabriel India Ltd. (203 ITR10B8)and it reads as under: “The power of suo motu revision under sub-section (1) of section 263 of the Income-tax Act, 1961, is in the nature of supervisory jurisdiction and can be exercised only if the circumstances specified therein exist. Two circumstances must exist to enable the Commissioner to exercise the power of revision under this sub-section, viz., (i) the order should be erroneous; and (ii) by virtue of the order being erroneous prejudice must have been caused to the interests of the Revenue. An order cannot be termed as erroneous unless it is not in accordance with law. If an Income-tax Officer acting in accordance with law makes certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately. This section does not visualise a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous. Cases may be visualised where the Income-tax Officer while making an assessment examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the accounts or by making some estimates himself. The Commissioner, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a higher figure than the one determined by the Income-tax Officer. That would not vest the Commissioner with power to re-examine the accounts and determine the income himself at a higher figure. This is because the Income-tax Officer has exercised the quasi-judicial power vested in him in accordance with law and arrived at a conclusion and such a conclusion cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the conclusion. It may be said in such a case that in the opinion of the Commissioner the order in question is prejudicial to the interests of the Revenue. But that by itself would not be enough to vest the Commissioner with the power of suo motu revision because the first requirement, namely, that the order is erroneous, is absent. Similarly if an order is erroneous but not prejudicial to the interests of the Revenue, then the power of suo motu revision cannot be exercised. Any and every erroneous order cannot be the subject- matter of revision because the second requirement must be fulfilled. There must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute, on an incorrect or incomplete interpretation, a lesser tax than what was just has been imposed. When exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on record to satisfy it in that regard. If the action of the authority is challenged before the court it would be open to the courts to examine whether the relevant objective factors were available from the records called for and examined by such authority.” In this case,the AO had made enquiries in regard to the nature of the expenditure incurred by the assessee.The assessee had given a detailed explanation in that regard by a letter in writing. All these were part of the record of the case.The Hon’ble Court held that ‘evidently’, the claim was allowed by the AO on being satisfied with the explanation of the assessee,that the decision of the AO could not be held to be "erroneous" simply because in his order he did not make an elaborate discussion in that regard. We would like to mention that the CIT had taken objection with regard to 10B claim holding that there was excess claim of Rs.1.92 lakhs in MAT computation,that for the purpose of computing the total income under normal provisions the claim made by the assessee was of Rs.12.85 crores and while computing the Book Profit deduction was claimed at Rs.12.87 crores.It is clear from the Report in form no.56 G that total income of the assessee from EOU was 27.69 croress and total expenses for the year were of Rs.14.81 croress,that the balance (Rs.12.87 crores)profit was considered for computing income u/s.115JB of the Act.As per the provisions of section 10B(4) the assessee had claimed pro rata deduction of Rs.12.85 crores under the normal provisions.The alleged difference has arisen because of the provisions of the Act.Under the MAT provisions no adjustment can be made except for the adjustments provided under explanation to the section.Provisions of section 10B(4)are not applicable to MAT calculation.We would also like to deal with one more issue regarding computation of book profit u/s.115JB of the Act.We find that the CIT had held that for the purpose of computation of book profit only the amount of deduction, to which the assessee was entitled as per section 10B, was to be reduced from the book profit,that the AO had accepted the computation of profit shown by the assessee after reducing the entire profit of business of undertaking, that the amount of production u/s.10B for the purpose of computation of book profit u/s.115 JB could not exceed the amount of deduction to which the assessee was entitled as per the normal provisions. It is found that for the purpose of computing book profit the assessee had added back expenses were Rs.14.81 crores relating to the EOU division and had 7

reduced income of Rs. 27.69 crores from the total profits as per the books of accounts.In our opinion,under the provisions of section 115 JB of the Act, income and expenditure related to an undertaking whose profits are exempt u/s.10B have to be taken out of the purview of book profit,that no adjustment could be made other than the adjustment specified in the explana - tion.The computation of income under the normal provisions of the Act would not affect the computation of book profit under the MAT provisions.In the matter of Moser Bayer (supra)the Tribunal has held as under: “5.As regards merits of the computation of book profit u/s. 115JB it would be relevant to consider the relevant provision of section 115JB. For purpose of computing, book profit u/s. 115JB profit is to be first arrived at as computed under Parts II & III of Schedule VI, Companies Act, 1956. In so computing the accounting policies the accounting standards adopted for preparing such accounts and the method and rates adopted for calculating the depreciation shall be the same as have been adopted for the purpose of preparing such accounts and rate before the company at its Annual General Meeting. The profit is so computed which is not in dispute. Explanation to section 115JB(2) provides as under :— XXXXX Under the scheme of provisions of section 115JB of the Act, Minimum Alternate Tax (MAT) is levied with reference to the book profit disclosed in the profit and loss account prepared in accordance with the provisions of Parts II and III of Schedule VI of Companies Act, as opposed to 'profits or gains of business or profession' as computed as per the provisions of the Act. The book profit gets substituted for the total income as computed under the Act. The book profit has therefore to be wholly quarantined from the said total income. For the determination of book profits thus any mode and manner of computation of total income under the Act has not to be applied unless specifically provided, as held by the Apex Court in Apollo Tyres Ltd. v. CIT [2002] 255 ITR 273and as clarified in the Memorandum explaining Provisions of the Finance Bill, 2000 [242 ITR (St.) 117, 138]. In other words, for the purpose of levy of MAT, reference is to be made only to the annual accounts as prepared for the purpose of Companies Act as would be clearly borne out from the scheme of section 115JB of the Act inasmuch as : (i)MAT is levied with reference to the book profit, which is deemed to be the total income of the assessee [sub-section (1) of section 115JB] (ii)For the purpose of section 115JB profit and loss account is to be prepared as per Parts II and III of Schedule VI of the Companies Act [sub-section (2) of section 115JB] (iii)While preparing the annual accounts, (i) accounting policies, (ii) accounting standards and even (iii) methods and rules adopted for calculating depreciation ought to be same as adopted for the purpose of preparing such accounts as laid before the company at its annual general meeting. [Proviso to section 115JB(2)] Explanation to section 115JB of the Act provides the manner of computation of book profit. The starting point is the book profit as disclosed in the profit and loss account prepared in accordance with Parts II and III of Schedule VI of the Companies Act, 1956. Such profit is subject to adjustments specified in the Explanation to said section. In terms of Explanation (ii) of section 115JB the amount of income to which provisions, inter alia, section 10BA/10BB apply if such amount is credited to profit and loss account, is to be reduced from the profit as per profit and loss account. Similarly Explanation (f) of section 115JB of the Act provides that profit as shown in the profit and loss account be increased by the amount of expenditure relatable to any income to which, inter alia, section 10BA or 10BB apply. The amount of income to which, inter alia, section 10BA/10BB of the Act apply, if such amount is credited to the profit and loss account would only refer to such amount as appearing in the books of account. Similarly the amount of expenditure, including depreciation relatable to any income to which section 10BA/10BB apply would certainly refer to the expenses and depreciation debited to the profit and loss account and not computed in the manner provided u/s.s 28 to 44 of the Act.” The Tribunal narrated the facts of the case as follow: The appellant, accordingly, while computing book profit u/s. 115JB, on which tax was paid, deeming the same to be the total income chargeable to tax in the hands of the appellant, adjusted the profit as shown in the profit and loss account to the following extent :

(i)Expenditure and book depreciation in relation to CDR A-164 Unit and Floppy III unit were added back to the profit. (ii)The income of the aforesaid two units minus other income, interest dividend, etc., was reduced from the profit. The Assessing Officer on the other hand reduced the book profit by deduction admissible u/s. 10BA/10BB of the Act in respect of the aforesaid units, calculated in accordance with the provisions of the Act.” After considering the facts the Tribunal further held as under: “The major difference in the basis adopted by the appellant and the Assessing Officer is on account of adjustment of depreciation.In the books of account, depreciation has been calculated on Straight Line Method (SLM) and the book profit has been computed taking into account the aforesaid basis of book depreciation in terms of clear and unambiguous mandate contained in clause (iii) of the proviso to sub-section (2) of section 115JB providing that methods and rates adopted for calculating depreciation would be the same as have been adopted for preparing the accounts that are laid before annual general meeting convened as per the provisions of section 210B of the Companies Act. The Assessing Officer on the other hand has sought to exclude depreciation calculated on the basis of written down value as provided in section 32 of the Act while adding back book depreciation. As a consequence of the aforesaid, exclusion of income net of expenses relatable to units eligible for deduction u/s. 10BA/10BB of the Act has been taken by the Assessing Officer at Rs. 9,825.14 lakhs as against Rs. 13,343.61 lakhs excluded by the appellant. The action of the Assessing Officer is contrary to the scheme of section 115JB of the Act, the unambiguous provisions of clauses (f) and (ii) of Explanation thereto and the settled judicial precedent in this regard. The Central Board of Direct Taxes vide Circular No. 559: 184 ITR (St.) 91, dated 4-5-1990 and also Circular No. 680: 206 ITR (St.) 297, dated 21-2-1994, clarified that for the purpose of section 115J (which is pari materia to section 115JB of the Act) deduction u/s. 80HHC of the Act that needs to be excluded (from book profits) in terms of clause (iii) of Explanation is to be calculated with reference to book profits. In CIT v. G.T.N. Textile Ltd. [2001] 248 ITR 372, the Hon'ble Kerala High Court, while considering clause (iii) of Explanation to section 115J of the Act, held that the deduction u/s. 80HHC of the Act excluded for purpose of the said section had to be computed as per the books of account and not calculated under the provisions of the Act. The Special Bench of Tribunal in the case of Dy. CIT v. Syncome Formulations (India) Ltd. [2007] 10B6 ITD 193(Mum.) considering provisions of sections 115JA and 115JB held that the Assessing Officer is not permitted to deviate from the book profit while computing the deduction u/s. 80HHC of the Act that is to be excluded in terms thereof.The relevant findings of the Special Bench are extracted as under : "53. . . The circular clarified that the quantum of computation is to be worked out on the basis of the adjusted book profit. The Revenue has also accepted the above position for the purpose of section 115J. Now the question is whether the subsequent changes brought in the words and expressions in sections 115JA and 115JB have brought any deviation from the position existed u/s. 115J. . . . 56. . . .Therefore, it is clear from the successive changes brought in the statute that the relief with reference to book profit tax erstwhile given u/s. 115J has been extended in more clearly spoken words in subsequent sections 115JA and 115JB. In section 115JA, it has been clearly stated that the relief will be computed u/s. 80HHC(3)/(3A), subject to the conditions under sub-clauses (4) and (4A) of that section. The conditions are only that the relief should be certified by a Chartered Accountant. As for the manner of calculation, it is very necessary to see that the reference is made only to sub-sections (3) and (3A), where there is Explanation (b) to sub-section (3) referring to the adjusted profit of the business, which is required for the purposes of ascertaining proportionate profits in respect of manufactured goods to be understood by the definition of adjusted profits of business. . . .

the P & L a/c for the instant year prepared in accordance with the provisions of Parts II and III of the Schedule VI of the Companies Act in order to compute book profit squarely fell in error. The said action of the Assessing Officer is clearly not warranted by the statutory provisions. Hence in terms of the ratio of the decision of the Apex Court also, in the instant case, the Assessing Officer exceeded his jurisdiction while computing book profits u/s. 115JA of the Act by seeking to exclude the actual amount of deduction allowable u/s. 80-A in contract to the actual profits of the eligible unit." The aforesaid decisions squarely apply to the case of the appellant and the adjustment, in terms of clause (ii)/(from) of Explanation to section 115JB of the Act has to be for the amounts credited/debited to the profit and loss account,as the case may be.” Considering the above,we are of the opinion there was no difference in the calculations made under both the sections and that the order of the AO cannot be held to be erroneous and prejudicial to the interest of revenue.

5.2.Now,we would deal with the issue of inclusion of service charges of Rs.6.27 lakhs as part of export turnover for the purposes of claiming deduction u/s.10B of the Act. In his order, the CIT had observed that the assessee had wrongly included service charges as part of export turnover of the purpose of claiming deduction u/s. 10B.It is found that the assessee had exported engineering designs to its holding company and had claimed exemption for the same,that the holding company had reimbursed those expenses incurred by the assessee under the contract, that it had recovered 2% of such reimbursements as service charges, that it had also recovered bank charges @of USD30 per transaction,that charges were lesser than the amount in question and the assessee had credited the excess recovery for computing export turnover. Explanation 2 (iii)to section 10B provides the definition of export turnover and it excludes only 3 items namely freight, telecommunication charges and insurance attributable to export delivery or any expenses incurred outside India. Service charges of Rs. 6.27 lakhs would not fall in any of the categories of receipts that have been excluded from the definition of export turnover.Therefore,there was justification for the assessee to include the service charges as part of export turnover. Secondly,as per the established principles of computation of turnover if an item is to be excluded/included from the export turnover same had to be included/excluded in the total turnover also. Therefore, the treatment given by the assessee to the service charges,in our opinion,was as per law and that if the AO had not disturbed the calculation,his order cannot be held to be erroneous.

5.3.Third objection,raised by the CIT,was about foreign exchange loss. The assessee had, while computing the total turnover and export turnover for the purpose of exemption u/s.10B,excluded foreign exchange loss of Rs. 23, 67, 165/-. It is found that the assessee was consistently considering the foreign exchange gain is part of the total turnover, that the gain

due to fluctuation in foreign exchange rate emanating from export was its integral part. If the foreign exchange loss is added back to compute the total turnover, the same would have to be added back to compute the export turnover also.Thus, there would be no difference in the taxable income of the assessee. Besides,we find that in the case of Prakash L Shah (supra) the tribunal has held that exchange-rate gain or loss cannot have a difference character than the transaction to which it would relate, that there cannot be any question of earning exchange- rate gain unless there was realisation of invoice value of Indian rupees. The assessee raised the invoice in foreign exchange and that the time of realisation would convert it into Indian rupees. Thus the entire amount was relatable to the exports made.In our opinion, the method adopted by the assessee was one of the recognised methods and that if the AO had not disturbed it,his order was in accordance with the provisions of the Act. In view of the above discussion,we hold that the order passed by the AO u/s.143(3)of the Act for the year under appeal,cannot be held to be erroneous or prejudicial to the interest of revenue.We find that the revisionary order of the CIT cannot be endorsed either on facts or merits.So, reversing his order,we decide all the grounds of appeal(except G.s OA 12-13)in favour of the assessee and hold that order passed by the CIT u/s.263 was not valid.

ITA/3874/Mum/2010,AY.2004-05 6.In pursuance of the directions of the CIT the AO passed an order u/s.143(3)r.w.s.263 of the Act on 02/02/2010 and revised the order as per the directions except for the issue of calculation of depreciation.In the appellate proceedings,his order was confirmed by the First Appellate Authority. 6.1.In the earlier part of our order,we have held that revisionary order of the CIT was invalid. So,order passed as per the directions of the said order would not survive.Grounds raised by the assesee stand allowed. As a result,ITA/1380/Mum/2009 is partly allowed and ITA /3874/Mum/2010/stands allowed. फलतः आक.अ./1380/ मुंबई /2009 अंशतःमंजूर क" जाती है और आक.अ /3874/मुंबई/2010 मंजूर क" जाती है. Order pronounced in the open court on 19th April, 2017. आदेश क" घोषणा खुले "यायालय म" "दनांक 19 अ"ैल , 2017 को क" गई । (राम लाल नेगी राम लाल नेगी राम लाल नेगी / Ram Lal Negi) (राजे"" / Rajendra) राम लाल नेगी "याियक सद"य / JUDICIAL MEMBER लेखा लेखा लेखा सद"य लेखा सद"य सद"य / ACCOUNTANT MEMBER सद"य मुंबई Mumbai; "दनांक/Dated : 19.04 .2017. Jv.Sr.PS.

आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत 1.Appellant /अपीलाथ% 2. Respondent /"&यथ% 3.The concerned CIT(A)/संब) अपीलीय आयकर आयु*, 4.The concerned CIT /संब) आयकर आयु* 5.DR “A ” Bench, ITAT, Mumbai /िवभागीय "ितिनिध, खंडपीठ,आ.अ."याया.मुंबई 6.Guard File/गाड. फाईल स&यािपत "ित //// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst.