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2023 (2) TMI 1356
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....ssessment proceedings. It is prayed that reliance placed by the AO/ CIT (A) on decision of M/s. Goetze (India) Limited vs CIT (284 ITR 383) is misplaced. Ground 2: The Hon'ble CIT (A) erred in confirming the decision of the Ld. A.O. of not granting deduction for donation made which are eligible for 100% deduction u/s. 80G of the Act. Also, the CIT (A) erred in confirming the action of A.O. in not granting deduction for payments made to Zavri Mangalji Yamalshi Dispensary of Rs. 7,00,000 inspite being eligible for deduction u/s 35AC of the Act. Ground 3: The Hon'ble CIT (A) erred in confirming the decision of Ld. A.O. of considering provision for current tax as Rs. 2,82,41,000 instead of Rs. 2,88,51,681 which was correct figure while computing book profits u/s 115JB of the Act. Ground 4: The Hon'ble CIT (A) erred in confirming the action of the Ld. A.O. of not granting set-off of brought forward losses and unabsorbed depreciation totaling to Rs. 5,92,38,205 inspite the assessee being eligible for set-off of these losses." 3. The relevant facts, as emanating from record, are that the Appellant, an....
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....would have resulted in reduction of taxable income of the Appellant holding that the Appellant could make revised claimed before the Assessing Officer only by way of filing the revised return of income by placing reliance upon the judgment of the Hon'ble Supreme Court in the case of M/s Goetze (India) Ltd Vs. CIT (284 capital ITR 383). 5. Being aggrieved, the Appellant carried the issue in appeal before the CIT (A) or decline to grant any relief. While dismissing the appeal, the CIT (A) observed that the CIT (A) could have admitted additional grounds/evidence only if he was satisfied that the grounds raised was bonafide and the same could not have been raised earlier for a good reason or on account of change of circumstances. According to the CIT (A) the Appellant had failed to satisfy the aforesaid factors, and therefore, the CIT (A) confirmed the order passed by the Assessing Officer vide order dated 01/11/2022. 6. Now the Appellant is before us in appeal against the above order of CIT (A) on the grounds reproduced in paragraph 2 above. 7. We have heard both the sides and perused the material on record. The Hon'ble Bombay High Court has, in the case of CIT Vs. Pruthvi Br....
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....gh not raised earlier. 6. In the case of Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 688, this Court, while dealing with the powers of the AAC, observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the AAC in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the ITO. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The AAC must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The AAC should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same obs....
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....ts and circumstances of the present case. Accordingly, we admit the revise claims made by the Appellant in respect of (a) deduction of INR 700,000/-under Section 35AC (while simultaneously withdrawing deduction of INR 3,50,000/-claimed under Section 80G of the Act), (b) reduction of book profits by INR 6,10,681/-by adding the correct amount of provisions for current tax to the net profits as per Profit & Loss Account and (c) the claim of set-off of brought forward losses and unabsorbed depreciation of INR 5,92,38,205/-. It is not the case of Revenue that the facts relevant to the adjudication of the aforesaid claims are not on record. Therefore, the Assessing Officer is directed to adjust/recompute the taxable income of the Appellant after verification of the aforesaid revised claims made by the Appellant. Accordingly, Ground Nos. 1 to 4 raised by the Appellant in the present appeal are allowed. 10. In the result, the present appeal preferred by the Assessee is allowed. ITA No. 3008/Mum/2022 11. The Appellant has raised the following grounds in appeal for the Assessment Year 2018-19. "Ground No. 1: On the facts and circumstances of the case and in law, th....
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....llowance of deduction of Rs. 16639234/-u/s 10AA of the Act on the basis that export proceeds have not been realized within a period of six months from the end of the previous year. Ld Assessing Officer was of the view that as the assessee is a unit established under SEZ, therefore, if the proceeds have not been received in convertible exchange on or before 30th September 2010 then, the deduction u/s 10AA cannot be granted. Assessee submitted that there is no specific provision u/s 10AA requiring the realization of export proceeds within a prescribed time limit. Further, assessee relied on the master circular on export of goods and services issued by the RBI under FEMA. The ld Assessing Officer rejected the contention of the assessee for the reason that according to section 10AA(8) which makes applicable subsection 5 and 6 of section 10A to this section i.e. 10 AA of the act, and according to form No. 56F, the realization of export proceeds is required to be shown. In that form assessee has shown that full consideration in convertible foreign exchange for exports made by the undertaking was brought into in India within a period of 6 months from the end of the previous year. The audi....
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....e unbilled revenue the assessee has not exported the goods and therefore such sum do not fall in the definition of export and therefore it cannot fall into the definition of export turnover. Hence, according to us the deduction under section 10 AA of the income tax act cannot be allowed on this sum as it does not qualify the definition of export and export turnover. Even otherwise assessee has not given any details of receipt of foreign exchange and therefore the consideration in respect of that is either received in or brought into India by the assessee. Hence, we confirm the finding of the lower authorities regarding disallowance of deduction under section 10 AA of the income tax act on this sum. With respect to the other sum of Rs. 4.80 crores The assessee has given foreign inward remittance certificates and such sum has also been received in India on 04/02/2011 and 24/2/2011. The provisions of section 10AA does not provide any time-limit of bringing such consideration into India like section 10A(3) which provides for receipt of consideration or sale proceeds in India in convertible foreign exchange within a period of 6 months from the end of the previous year, or within such fu....
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....rts should be brought into India. However in paragraph 6.2, the CIT (A) has returned a specific finding that the Appellant has nowhere in the submission explained or prove that the export proceeds were realized and brought into India. 17. In rejoinder, the Learned Authorised Representative for the Appellant submitted that the findings returned by the CIT (A) is factually incorrect referring to the relevant portion of certain submissions reproduced by the CIT (A) in paragraph 5 of the order impugned (at page 6 of 10), he submitted that export proceeds relating to sales made during the Previous Year 2017-18 was submitted during the course of assessment proceedings and were also filed before the CIT (A) as Annexure-3 to the written submissions. He submitted that a copy of the aforesaid annexure has also been placed before the Tribunal. 18. We have considered the rival submissions and perused the material on record. 19. We find that the solitary issue raised in the present appeal stands decided in favour of the Appellant/Assessee by the decision of Delhi bench of the Tribunal bench in the case of BT e-Serv (India) Private Limited (Supra) wherein it was held as under: ....
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.... services received in, or brought into, India by the assessee but does not include freight, telecommunication charges or insurance attributable to the delivery of the articles or things outside India or expenses, if any, incurred in foreign exchange in rendering of services (including computer software) outside India. Explanation 1 (ii) defines export as "export in relation to the Special Economic Zones" taking goods or providing services out of India from a Special Economic Zone by land, sea, air, or by any other mode, whether physical or otherwise. Therefore primarily there should be export and consideration for export should be brought in to India. The Ld. assessing officer as well as the Ld. DRP has disallowed the claim of the assessee on the sum of Rs. 75085404/. The above sum comprises of a sum of Rs. 480000000/-being foreign currency received of the export amount received by the assessee on 04/02/2011 and 24/2/2011. A sum of Rs. 27085404/-is unbilled revenue of the assessee. The unbilled revenue is like work in progress in case of ITES industries. The explanation 1 (ii) defines export means taking goods or providing services out of India from SEZ by land, sea, or by any othe....
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....r section 10 AA of the income tax act. Accordingly, Ground No. 14 to 22 of the appeal of the assessee are partly allowed." (Emphasis Supplied) 20. We are in agreement with the above decision of the Tribunal since Section 10AA does not prescribe any time limit for realization of export proceeds, the benefit of Section 10AA cannot be denied to an Assessee merely because the export proceeds were realized after the expiry of 6 months from the end of relevant previous year in which export sales were made. In our view, in case an assessee is able to show that the consideration in respect of exports was received in India or brought into India, the deduction under Section 10AA of the Act should be allowed. In the present case the Appellant had filed the details of realization of export sales with the Assessing Officer and the CIT(A). Therefore, we direct the Assessing Officer to allow deduction to the Appellant under Section 10AA of the Act by taking into account the export sales realized by the Appellant. Accordingly, the order passed by the Assessing Officer and the CIT (A) are set aside. Ground No. 1 raised in the appeal is allowed. In result the present appeal by the Assess....