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Income Tax Appellate Tribunal, F Bench, Mumbai
Before: Shri Jason P. Boaz & Shri Sandeep Gosain
These are cross appeals, by the assessee and Revenue directed against the order of the CIT(A)-9, Mumbai dated 12.12.2013 for A.Y. 2010-11.
The facts of the case, briefly are as under: - 2.1 The assessee, a company engaged in the business of manufacturing and export of diamond studded jewellery, filed its return for A.Y. 2010-11 on 26.09.2010 disclosing total income of `4,20,000/-. The case was subsequently taken up for scrutiny. The assessment was completed under section 143(3) of the Income Tax Act, 1961 (in short ‘the Act’) vide order 2 M/s. Finestar Jewellery and Diamonds P. Ltd. dated 22.01.2013, wherein the income of the assessee under the normal provisions was determined at `4,20,000/-, which, inter alia, included additions/disallowances of `57,563/- on account of internet on FD’s and `13,39,825/- on account of EEFC income being excluded from computation of deduction under section 10A of the Act. While computing the book profits under section 115JAB of the Act, at `2,26,92,585/-, the Assessing Officer (AO) disallowed the assessee’s claim for deduction under section 10A of the Act. 2.2 Aggrieved by the order of the assessment for A.Y. 2010-11 dated 22.01.2013, the assessee preferred an appeal before the CIT(A)-9, Mumbai. The CIT(A) disposed off the appeal by way of the impugned order dated 12.12.2013 allowing the assessee partial relief. In the impugned order, the learned CIT(A) upheld the AO’s order with respect to the addition made; (i) on account of interest earned on FDs amounting to `57,563/-, and (ii) `13,39,825/- on account of interest received on EEFC, and (iii) allowed the assessee’s claim for deduction under section 10A of the Act to the extent of `1,63,48,175/- from ‘Book Profit’ under section 115JB of the Act.
Both the assessee and Revenue, being aggrieved by the orders of the CIT(A)-9, Mumbai dated 12.12.2013 for A.Y. 2010-11 to the extent the issues were held against them have preferred appeals before the Tribunal in this regard. We now proceed to dispose off these cross appeals hereunder. Assessee’s appeal for A.Y. 2010-11 in ITA No. 957/Mum/2014 4. In this appeal the assessee has raised the following grounds: - “
1. On facts and in law, the learned CIT(A) had erred in not directing the Assessing Officer to include Rs.57,563/- being the interest received on Fixed Deposits as profits on the business while calculating deduction u/s. 10A. Under the facts and circumstances of the matter, he ought to have directed the Assessing Officer to include the said sum of Rs.57,563/- being the interest received on Fixed Deposits as profits of the business while calculating deduction u/s. 10A.
2. Without prejudice to Ground of Appeal No. 1, the learned CIT(A) had erred in upholding that only net interest should be excluded for deduction u/s. 10A.
3 M/s. Finestar Jewellery and Diamonds P. Ltd.
3. On facts and in law, the learned CIT(A) had failed to appreciate that Rs.13,39,825/- is not interest received on EEFC, but the exchange difference on EEFC and the same should be considered as such while calculating deduction u/s. 10A. Under the facts and circumstances of the matter, he ought to have considered the said sum of `13,39,825/- as exchange difference on EEFC and directed the Assessing Officer to allow deduction u/s. 10A on the said amount.
The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal
, at any time before or at the time of hearing of the appeal, so as to enable the Hon. ITAT to decide this appeal according to law.”
5. Ground No. 1: Interest on Fixed Deposits - `57,563/- 5.1 In this ground, the assessee contends that the learned CIT(A) erred in holding that the interest of `57,563/- received on Fixed Deposits was not be included as profits of the assessee’s business while computing the eligible deduction under section 10A of the Act. At the outset the learned A.R. for the assessee submitted that this issue is covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal in the assessee’s own case for A.Y. 2009-10 in ITA No. 7371/Mum/2012 dated 15.07.2015. 5.2 We have heard both the learned A.R. for the assessee and the learned D.R. for Revenue in the matter. We find that this issue of whether interest received on fixed deposits is to be treated as part of the assessee’s business income has been considered and held in favour of the assessee by the decision of the Coordinate Bench of this Tribunal in the assessee’s own case for A.Y. 2009-10 in ITA No. 7371/Mum/2012 dated 15.07.2015, wherein at para 14 thereof it has been held as under: - “14. We have given a thoughtful consideration to the issue under consideration. A perusal of the balance sheet of the assessee shows that the fixed deposit account is shown as secured against bank guarantee which shows that the fixed deposits have a direct nexus with the business of the assessee. In our considered view, the interest earned from such deposits of the money kept apart for the purpose of business is to be taxed under the head ‘Income from business’ and cannot be taxed under ‘Income from other sources’. We draw support from the decision of the Hon'ble Bombay High Court in the case of Indo Swiss 284 ITR 389. We, accordingly direct the AO to treat the interest income under the head ‘Profits and gains of the business’ and for the 4 M/s. Finestar Jewellery and Diamonds P. Ltd. reasons given in ground No. 1 of this appeal, we direct the AO to allow deduction u/s. 10A of the Act. Ground No. 2 is accordingly allowed.” 5.2.1 Following the aforesaid decision of the Coordinate Bench in assessee’s own case for A.Y. 2009-10 (supra) we hold and direct that the interest earned from fixed deposits kept apart for the purposes of business is to be treated under the head ‘Income from Business’ and not under the head ‘Income from other sources’ and is to be treated as profits of the business while calculating the deduction under section 10A of the Act. Consequently, ground No. 1 of the assessee’s appeal is allowed.
6. Grounds No. 2: At the time of hearing, the learned A.R. for the assessee submitted that this ground is not being pressed. Since this ground is not pressed in this appeal, it is rendered infructuous and is accordingly dismissed.
7. Ground No. 3: Exchange difference on EEFC - `13,39,825/- 7.1 In this ground, the assessee contends that the learned CIT(A) has erred in treating this amount of `13,39,825/- as interest received on EEFC rather than the exchange difference on EEFC and in holding that the same should not considered as such while computing the deduction under section 10A of the Act. Before us, the learned A.R. for the assessee submitted that this issue has been considered and held in favour of the assessee by the decision of the Coordinate Bench of this Tribunal in the assessee’s own case for A.Y. 2008-09 in its order in ITA No. 7371/Mum/2012 dated 15.07.2015. 7.2 We have heard both the learned A.R. for the assessee and the learned D.R. for Revenue in the matter. We find, as submitted by the learned A.R. for the assessee that similar issue was considered and held in favour of the assessee by the Coordinate Bench of this Tribunal in its order in ITA No. 7371/Mum/2012 dated 15.07.2015 in assessee’s own case for A.Y. 2008- 09, holding as under at para 19 thereof: - “19. We have carefully perused the relevant part of the orders of the Revenue authorities. It is not in dispute that Rs.35,86,248/- is not interest earned but gain on the fluctuation of foreign exchange. From the chart exhibited at page-24, we find that the assessee has suffered losses on foreign exchange fluctuation which have been accepted by the Revenue authorities. We, therefore, do not find any reason for giving 5 M/s. Finestar Jewellery and Diamonds P. Ltd. differential treatment to the exchange gains. In our considered opinion, the exchange gains should be taxed under the head business income. We, accordingly direct the AO to tax the exchange gain under the head business income and accordingly allow deduction u/s. 10A of the Act, for the detailed reasons given while deciding ground No. 1 of this appeal, ground No. 3 is accordingly allowed.” 7.2.1 Following the aforesaid decision of the Coordinate Bench in assessee’s own case for A.Y. 2009-10 (supra), we hold that the amount of `13,39,825/- is not interest earned but gain on fluctuation of foreign exchange, which are to be taxed under the head ‘Income from Business’. We direct the AO to tax the exchange gain under the head ‘Income from Business’ and accordingly allow the assessee deduction under section 10A of the Act. Consequently, ground No. 3 of the assessee’s appeal is allowed.
8. Ground No. 4 being general in nature, no adjudication is called for thereon.
In the result, the assessee’s appeal for A.Y. 2010-011 is allowed as indicated above. Revenue’s appeal for A.Y. 2010-11 in
In this appeal Revenue has raised the following grounds: - “
1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the assessee’s appeal by allowing deduction u/s. 10A amounting to Rs.1,63,48,175/- from Book Profit u/s. 115JB of the Income tax Act, 1961?
2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has failed to appreciate that the statute has omitted the deduction available in respect of amount of income to which the provisions of section 10A or 10B apply in order to arrive at the Book Profit u/s. 115JB?” 10.1 The learned D.R. for the Revenue was heard in support of the ground raised (supra) and placed reliance on the orders of the AO on this issue. 10.2 Per contra, the learned A.R. for the assessee supported the finding of the learned CIT(A) in the impugned order on this issue. The learned A.R. for the assessee submitted that this issue of allowing deduction under section 10A of the Act from ‘Book Profit’ under section 115JB of the Act has been considered and held in favour of the assessee by a Coordinate Bench of the 6 M/s. Finestar Jewellery and Diamonds P. Ltd. Tribunal in assessee’s own case for A.Y. 2009-10 in its order in ITA No. 7371/Mum/2012 dated 15.07.2015. 10.3 We have heard the rival submissions and perused and carefully considered the material on record. We find that, as submitted by the assessee, the Coordinate Bench of this Tribunal in assessee’s own case for A.Y. 2009-10, vide order in ITA No. 7371/Mum/2012 dated 15.07.2015, at para 22 thereof, following the decision of another Coordinate Bench of this Tribunal in the case of Genesys International Corporation Ltd. (55 SOT 10) held and directed the AO to exclude the exemption/deduction allowable under section 10A of the Act from the Book Profits taxable under section 115JB of the Act. At para 22 of the order the Coordinate Bench in assessee’s own case for A.Y. 2009-10 (supra) held as under: - “22. After giving a thoughtful consideration to the facts in issue, we find force in the contention of the Ld Counsel. The Tribunal in the case of Genesys International Corpn (supra) at para-21 of its order has held as under: It is evident from above that an existing SEZ unit will also be governed by Special Economic Zones Act, 2005. Therefore, we are of the considered view that the benefits which are to be provided to the newly established unit in SEZ as per section 10AA of the Act will also be available to the existing units in SEZ. Moreover, section 4(1) of SEZ Act provides that an existing SEZ unit shall be deemed to have been notified and established in accordance with provisions of SEZ Act and the provisions of Special Economic Zones Act shall apply to such existing SEZ units. It is also observed that by the SEZ Act, sub-section (6) to section 115JB was also inserted providing that provisions of section 115JB shall not apply to the income accrued or arisen on or after 1.4.2005 from any business carried on, or services rendered, by an entrepreneur or a Developer, in a Unit or Special Economic Zone, as the case may be. Hence, income of units located SEZ will not be included while computing book profit for the purpose of MAT as per section 115JB(6) of the Act. In view of above, we are of the considered view that there is merit in the contention of Id A.R. that irrespective of the fact that amendment has been made in clause (f) of Explanation (1) to section 115JB(2) of the Act to apply the provisions of MAT in respect of units which are entitled to deduction u/s.10A or 108 but the units which are in SEZ will continue to get benefits from the applicability of provisions of MAT in view of sub-section(6) of the Act. We also observe that benefit given to SEZ unit from the applicability of provisions of section 115JB has been withdrawn by the Finance Act, 2011 by inserting a proviso to section 115JB(6) of the Act."