2014 (2) TMI 1216 - AT - Income Tax

SEZ Unit Eligibility Confirmed Without Physical Presence Requirement

Income Tax Officer, Ward-2 (3), Kolkata Versus M/s. Last Peak Data Pvt. Ltd.

Income Tax Officer, Ward-2 (3), Kolkata Versus M/s. Last Peak Data Pvt. Ltd. - TMI Issues:Interpretation of sub-section 6 of section 115JB of the Income Tax Act, 1961 regarding eligibility for exemption as a Special Economic Zone (SEZ) Unit.Detailed Analysis:Issue 1: Applicability of sub-section 6 of section 115JBThe appeal raised the question of whether the assessee, operating from a Software Technology Park (STP) within Falta Export Processing Zone, qualified as a SEZ Unit under sub-section 6 of section 115JB. The Assessing Officer contended that the assessee did not operate from a notified SEZ and thus was not eligible for the exemption. However, the assessee argued that being in the Falta Export Processing Zone, controlled by the Development Commissioner under the SEZ Act, made it eligible for the exclusion under sub-section 6. The CIT(A) agreed with the assessee's interpretation, emphasizing that the definition of a Unit under the SEZ Act covered existing units as well. The Tribunal upheld the CIT(A)'s decision, stating that physical presence within an SEZ was not a prerequisite for claiming the benefit of sub-section 6.Issue 2: Definition of 'Unit' under the SEZ ActThe Tribunal analyzed the definition of 'Unit' under the SEZ Act, which included existing units established before or after the commencement of the Act. This definition supported the assessee's claim that physical location within an SEZ was not mandatory for availing the exemption under sub-section 6 of section 115JB. The Tribunal highlighted that the disjunctive use of 'or' between 'unit' and 'Special Economic Zone' in the Income Tax Act indicated that functioning from an SEZ was not a strict requirement for eligibility.Issue 3: Compliance with SEZ Rules and Reporting AuthorityThe Tribunal noted that the assessee complied with the rules applicable to SEZs and reported to the same authority mentioned in the SEZ Act. This further reinforced the assessee's eligibility for the benefit of sub-section 6 of section 115JB. The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decision that the assessee was entitled to the exemption from Minimum Alternative Tax under section 115JB.In conclusion, the Tribunal upheld the assessee's eligibility as a SEZ Unit under sub-section 6 of section 115JB, emphasizing that physical presence within an SEZ was not a prerequisite for claiming the exemption. The decision was based on a thorough analysis of the relevant legal provisions and definitions under the SEZ Act, supporting the assessee's position and dismissing the Revenue's appeal.