ITO, New Delhi V. M/s. Enable Exports Pvt. Ltd., New Delhi

ITA 312/DEL/2012

• Counselvise Citation: 31220114 RSA 2012
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ISHTIYAQUE AHMED
• Section: 10B; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.312/DEL/2012 312/DEL/2012 312/DEL/2012 312/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -11(1), 11(1), 11(1), 11(1), ROOM NO.321, CENTRAL ROOM NO.321, CENTRAL ROOM NO.321, CENTRAL ROOM NO.321, CENTRAL REVENUES B REVENUES B REVENUES B REVENUES BUILDING, UILDING, UILDING, UILDING, I.P.ESTATE, I.P.ESTATE, I.P.ESTATE, I.P.ESTATE, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. VS. VS. VS. VS. M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., EF EFEF EF- -- -5R, INDERPURI, 5R, INDERPURI, 5R, INDERPURI, 5R, INDERPURI, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 012. 110 012. 110 012. 110 012. PAN : AAACE0584B. PAN : AAACE0584B. PAN : AAACE0584B. PAN : AAACE0584B. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ISHTIYAQUE AHMED, SR.DR. RESPONDENT BY : SHRI G.N.GUPTA, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THE ONLY GROUND RAISED IN THIS APPEAL BY THE REVEN UE READS AS UNDER:- ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, WHETHER THE LD.CIT(A) IS CORRECT IN TREATING T HE INCOME OF RS.1,24,99,481/- AS EXEMPT U/S 10B OF THE INCOME TAX ACT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFF ICER DISALLOWED THE DEDUCTION CLAIMED UNDER SECTION 10B ON THE BASI S OF THE ORDER OF HIS PREDECESSOR FOR AY 2007-08. THE CIT(A) ALLOWED THE RELIEF FOLLOWING THE ORDER OF THE CIT(A) FOR AY 2007-08. THE REVENU E, AGGRIEVED WITH THE ORDER OF THE CIT(A), IS IN APPEAL BEFORE US. ITA-312/DEL/2012 2 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT IN AY 2007-08, THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDER OF CIT(A) AND THE ITAT, VI DE ITS ORDER DATED 31 ST DECEMBER, 2010 IN ITA NO.1935/DEL/2010, UPHELD THE ORDER OF THE CIT(A). THE RELEVANT FINDING OF THE ITAT READS AS UNDER:- 7. WE HAVE HEARD BOTH THE PARTIES. THE ONLY SHORT ISSUE TO BE DECIDED IN THIS CASE IS WHETHER THE ASSESSEE IS A HUNDRED PER CENT EOU. DURING THE COURSE OF HEARING , AS MENTIONED ABOVE, THE ASSESSEE HAD FILED LETTER DATE D 8 TH MARCH, 2010 WHEREIN IT HAS BEEN MENTIONED AS UNDER: - I AM DIRECTED TO REFER TO YOUR LETTER DATED 16/02/ 2010 ON THE SUBJECT CITED ABOVE AND TO CONFIRM THAT LOP NUM BER 2- 239/2006-100%EOU/8731 DATED JUNE 15 TH , 2006, ISSUED BY THE DEVELOPMENT COMMISSIONER, NOIDA SEZ, FOR THE CONVERSION OF ENABLE EXPORTS PRIVATE LIMITED DTA UN IT INTO A 100% EOU HAS BEEN RATIFIED BY THE BOARD OF APPROV AL FOR EOU SCHEME. FROM THE LANGUAGE EMPLOYED IN THE LETTER IT IS CLEA R THAT THE DEVELOPMENT COMMISSIONER REFERRED THE MATTER TO THE BOARD OF APPROVAL, WHICH HAS BEEN APPROVED BY THEM AND A CERTIFICATE TO THIS EFFECT HAS BEEN ISSUED VIDE L ETTER DATED 8 TH MARCH, 2010. THEREFORE, THE ASSESSEE HAS BEEN GRA NTED HUNDRED PER CENT EOU STATUS AND, HENCE THE ASSESSEE IS ENTITLED FOR DEDUCTION UNDER SECTION 10-A OF THE AC T. THE LD.CIT(APPEALS) HAS ALSO HELD THAT THE ASSESSEE HAS NOT USED THE OLD MACHINERY. DURING THE COURSE OF HEARI NG, NO MATERIAL WAS PRODUCED BEFORE US TO PROVE THAT THE O LD MACHINERY HAS BEEN USED BY THE ASSESSEE. LD.CIT(A) HAS ITA-312/DEL/2012 3 ALSO HELD THAT SEPARATE BOOKS OF ACCOUNTS WERE NOT REQUIRED TO BE MAINTAINED AS IT IS A CONVERSION OF DTA UNIT INTO 100% EOU AND THERE WAS NO REQUIREMENT OF LAW I N THIS REGARD TO MAINTAIN SEPARATE BOOKS OF ACCOUNTS. HEN CE ALL THE CONDITIONS FOR ELIGIBILITY FOR EXEMPTION U/S 10 B ARE SATISFIED. ACCORDINGLY, IN OUR CONSIDERED OPINION, THE LD.CIT(APPEALS) WAS JUSTIFIED IN GRANTING EXEMPTION UNDER SECTION 10B OF THE ACT. 4. THE REVENUE FILED APPEAL BEFORE THE HONBLE JURI SDICTIONAL HIGH COURT AGAINST THE ORDER OF THE ITAT AND THE HONBLE JURISDICTIONAL HIGH COURT, VIDE ORDER DATED 14 TH SEPTEMBER, 2011 IN ITA NO.1072 OF 2011, DISMISSED THE APPEAL OF THE DEPARTMENT. THAT THE R EVENUE HAS ALSO FILED THE SLP BEFORE THE HONBLE APEX COURT WHICH I S DISMISSED VIDE ORDER DATED 5 TH JULY, 2012. THUS, THE ISSUE IS CONCLUDED IN FAVOU R OF THE ASSESSEE FOR AY 2007-08. ADMITTEDLY, THE FACTS OF THE YEAR UNDER CONSIDERATION ARE IDENTICAL. WE, THEREFORE, RESPEC TFULLY FOLLOWING THE DECISION OF ITAT, HONBLE JURISDICTIONAL HIGH COURT AND HONBLE APEX COURT FOR AY 2007-08, UPHOLD THE ORDER OF LEARNED C IT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 9 TH AUGUST, 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 09.08.2012 VK. ITA-312/DEL/2012 4 COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -11(1), 11(1), 11(1), 11(1), ROOM NO.321, CENTRAL REVENUES BUILDING, ROOM NO.321, CENTRAL REVENUES BUILDING, ROOM NO.321, CENTRAL REVENUES BUILDING, ROOM NO.321, CENTRAL REVENUES BUILDING, I.P.ESTATE, I.P.ESTATE, I.P.ESTATE, I.P.ESTATE, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. 2. RESPONDENT : M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., M/S ENABLE EXPORTS PVT.LTD., EF EFEF EF- -- -5R, INDERPURI, 5R, INDERPURI, 5R, INDERPURI, 5R, INDERPURI, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 012. 110 012. 110 012. 110 012. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR