NIRU JEWELS P.LTD, MUMBAI V. DCIT (OSD)-1CENTRAL RG 7, MUMBAI

ITA 1468/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3854 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-03-2014
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: B V JHAVERI
• Keywords: Competent authority

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH , JM ./ ITA NO. 1468 / MUM/20 14 ( / ASSESSMENT YEAR : 20 0 8 - 0 9 ) M/S NIRU JEW ELS PVT. LTD. UNIT NO.704, TOWER - 1, SEEPZ SEZ, ANDHERI(EAST), MUMBAI - 400096 VS. DCIT(OSD - 1), MUMBAI - 400020 ./ ./ PAN/GIR NO. : A A BCN 8598 A ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SH RI B.V.JHAVERI /REVENUE BY : SHRI N.P.SINGH / DATE OF HEARING : 0 7 / 04 /201 6 / DATE OF PRONOUNCEMENT 27 / 04 /201 6 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED B Y THE ASSESSEE AGAINST THE ORDER OF CIT(A) - MUMBAI, FOR THE ASSESSMENT YEAR 20 0 8 - 20 0 9 . 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR RESTRICTING THE CLAIM OF DEDUCTION U/S.10A TO THE EXTENT OF EXPORTS SALE PROCEEDS RECEIVED UPTO 30 - 9 - 2008 ON THE PLEA THAT NECESSARY EX TENSION OF TIME TO RECEIVE FOREIGN EXCHANGE FROM RBI WAS NOT OBTAINED BY THE ASSESSEE. ACCORDINGLY, CIT(A) HELD THAT EXPORT TURN OVER ELIGIBLE FOR DEDUCTION U/S.10A IS RESTRICTED TO THE TURNOVER OF RS.98,38,23,087/ - AS AGAINST TURN OVER OF RS.125,55,29,2 31/ - . ITA NO. 1468 / 14 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT ASSESSEE COMPANY IS ENGAGED IN BUSINESS OF MANUFACTURING AND EXPORT OF DIAMOND STUD DED JEWELLERY. ITS CLAIM FOR DEDUCTION U/S.10A WAS RESTRICTED BY CIT(A) TO THE EXTENT OF RECEIPT OF FOREIGN EXCHANGE UPTIL 30 - 9 - 2008. IT WAS ARGUED BY LD. AR THAT RBI HAS ALREADY ISSUED CIRCULAR IN RESPECT OF UNITS SITUATED IN SE Z (SPECIAL ECONOMIC ZONE) , RELAXING THE REALISATION TO THE EXPORTS PROCEEDS. RELIANCE WAS ALSO PLACED ON THE DECI SION OF COORDINATE BENCH IN THE CASE OF TARA JEWELS EXPORTS PVT. LTD., ITA NO.662/MUM/2012, DATED 29 - 1 - 2014, WHEREIN IT WAS HELD THAT AFTER THE RBI HAVE CLARIFIED THAT IT HAS NOT STIPULATED ANY TIME PERIOD FOR THE REALISATION OF SALE PROCEEDS FOR SEZ UNITS , IT CAN ONLY BE CONSIDERED AS HAVING ALLOWED AND INDEFINITE PERIOD FOR THE SAME. CONSEQUENTLY, IT CANNOT BE SAID THAT THE CONDITION OF SECTION 10A WAS NOT SATISFIED. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT DEDUCTION U/A.10A WAS RESTRICTED TO THE EXTENT OF EXPORT RECEIPTS REALISED UPTLL 30 - 9 - 2008 . T HE ASSESSEE COMPANY IS SITUATED IN SEZ, THE RBI, THE COMPETENT AUTHORITY, U/S. 10A (3) OF THE ACT HAD VIDE ITS CIRCULAR BEARING A.P. - (DIR SERIES) CIRCULAR NO:91 DATED 1 ST APRIL, 2003 RELAXED THE RE ALIZATION OF EXPORT PROCEEDS, WHICH READS AS UNDER: 'IN TERMS OF PARA II(C) OF AP (DIR SERIES) CIRCULAR NO.28 DATED MARCH 30, 200 1 , UNITS SITUATED IN SPECIAL ECONOMIC ZONES HAVE BEEN PERMITTED TO REALISE AND REPATRIATE TO INDIA THE FULL VALUE OF GOODS OR SOFTWARE WITHIN A PERIOD OF TWELVE MONTHS FROM THE DATE OF EXPORT. IT HAS NOW BEEN DECIDED TO REMOV E THE STIPULATION OF TWELVE MONTHS OR EXTENDED PERIOD THEREOF FOR REALIZATION OF EXPORT PROCEEDS. ACCORDINGLY, THERE SHALL BE NO PRESCRIPTION OF AN Y TIME LI MIT FOR REALIZATION OF EXPORTS MADE BY UNITS IN SEZS. HOWEVER, THE UNITS IN SEZS WILL CONTINUE TO FOLLOW THE GR/PP/SOFTEX EXPORT ITA NO. 1468 / 14 3 PROCEDURE OUTLINED IN PART B OF ANNEXURE TO A.P .(DIR SERIES) CIRCULAR NO .12 DATED SEPTEMBER 9, 200 0 AS AMENDED FROM TIME TO TI ME. FURTHER, WE FOUND THAT THE TRIBUNAL, MUMBAI BENCH, IN THE CASE OF ACIT VS. TARA JEWELS EXPORTS PVT. LTD. IN ITA NO.662/MUM/2012 FOR A.Y. 2003 - 04 DATED 29TH JANUARY, 2014 HELD AS UNDER (PAGE - 9): 'ONCE, THEREFORE, THE RBI HAS CLARIFIED THAT IT HAS NO T STIPULATED ANY TIME PERIOD FOR THE REALIZATION OF THE SALE PROCEEDS FOR THE SEZ UNITS, AS THE ASSESSEE. IT CAN - ONLY BE CONSIDERED AS HAVING A L LOWED AN INDEFINITE TIME PERIOD FOR THE SAME. CONSEQUENTLY, IT CANNOT BE SAID THAT THE CONDITION OF SECTION 10A( 3) IS' NOT SATISFIED. THE OBJECTION OF THE REVENUE IS, IN OUR VIEW, NOT VALID.' IN VIEW OF THE ABOVE, WE RESTORE THE MATTER BACK TO THE FILE OF AO FOR RECOMPUTING ELIGIBLE DEDUCTION AFTER CONSIDERING THE RBI CIRCULAR AND ALSO CONSIDERING THE DECISION OF COORDINATE BENCH AS DISCUSSED ABOVE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27/04 / 201 6 . SD/ - ( PAWAN SINGH ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 27/04 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / B Y ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / TH E RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//