2019 (6) TMI 1173

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.... Thus it was submitted that the delay in filing the appeal was due to reasons beyond the control of the assessee and not willful and intentional and prayed that the delay may be condoned and the appeal disposed of on merits. 2.1 We have heard the rival submissions and gone through the reasons advanced by the assessee for filing the appeal belatedly before this Tribunal. We are satisfied with the reasons explained by the assessee for filing the appeal belatedly. Accordingly, we condone the delay of 03 days in filing the appeal and admit the appeal for adjudication. 3. The assessee has raised the following grounds of appeal: 1) The learned Commissioner of Income Tax (Appeals) erred in confirming the exclusion of Rs. 10,77,995/- from the export turnover, on the ground that the appellant had not received the sale proceeds within 6 months from the end of the previous year. 2) The learned Commissioner of Income Tax (Appeals) ought to have noticed that this is only a procedural requirement, so much so, it cannot be a reason for exclusion of the amount from export turnover. 3) The learned Commissioner of Income Tax (Appeals) erred in excluding Rs. 1,61,6....

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....deducted from export turnover which was upheld in Commissioner of Income tax, Cochin vs Electronic Controls a Discharge systems P Ltd 13 taxmann.com 193. 5. On appeal, the CIT(A) observed that even though the assessee disputed the action of the Assessing Officer on this issue but has not explained how such action is contrary to the provisions of the Act. According to the CIT(A), the provisions of subsection 3 of the section 10B read as under: "(3) This section applies to the undertaking, if the sale proceeds of articles or things or computer software exported out of India are received in, or brought into, India by the assessee in convertible foreign exchange, within a period of six months from the end of the previous year or, within such further period as the competent authority may allow in this behalf, Explanation 1.-For the purpose of this sub-section the expression competent authority means the Reserve Bank of India or such other authority as is authorised under any law for the time being in force for regulating payments and dealings in foreign exchange. Explanation 2.-The sale proceeds referred to in this sub-section shall be deemed to have been r....

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....provisions of other Acts with regard to special economic zones, had held that inter-unit sales in the Export Processing Zone were not treated as export within the meaning of section 10A of the Act, no matter such transfers are treated as exports for the purpose of Customs and Excise duty exemption. Therefore, the CIT(A) held that the action of the Assessing Officer, in excluding the local sales from the export sales, was in accordance with law and hence, dismissed the ground raised by the assessee. 12. Against this, the assessee is in appeal before us. 13. The Ld. DR on the relied on the order of the CIT(A). 14. We have heard the rival submissions and perused the record. Admittedly, there is a Supreme Court judgment in the case of Dy. CIT vs. Metal Closures (P) Ltd. 261 Taxman 161 wherein by dismissing the SLP, the Supreme Court held as follows: "-Appeal (Supreme Court)-Special leave petition Deduction under section 10B-100 per cent Export Oriented Undertaking-Altowability-[Deemed Export] of goods- Where the department/preferred SLP to appeal against the judgment of Karnataka High Court in Metal Closures (P) Ltd. v. Dy. C1T [ITA Nos. 24-25/2015 c/w ITA Nos. 22-....

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....h exposition of law by the Hon'ble Supreme Court so as to indicate the imprimatur on the reasoning and/or the ratio decidendi of the High Court in the judgment. In such circumstances, there is no merger of the judgment of the Hon'ble High Court. The Hon'ble Apex Court in Hemalatha Gargya v. CIT (2003) 259 ITR 1/128 Taxman 190, has held that dismissal of SLP in limine: "could not operate as a confirmation of the reasoning in the decision sought to be appealed against........". Similar view has been taken by the Hon'ble Supreme Court in Kunhayammed v. State of Kerala (2000) 245 ITR 360/113 Taxman 470, in which their Lordships have held that an order refusing special leave to appeal does not stand substituted in place of order under challenge. In the hue of the above discussion, it is amply vivid that the mere dismissal of SLP by the Hon'ble Supreme Court against the judgment of the Hon J&K High Court in the case of Jammu Development Authority cannot be construed as having the effect of elocution of law by the Hon'ble Supreme Court on the subject against the assessee." 14.2 As rightly pointed out by the Ld. DR, dismissal of SLP by the Supreme Court ....