VINIT KUMAR BORA, Jaipur V. ACIT, Jaipur

ITA 49/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2176 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 10-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 18-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P R MEENA
• Assessee Lawyers: S C JAIN
• Keywords: Additional evidence; Competent authority
• Section: 10AA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 49/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 SHRI VINIT KUMAR BORA, PROP. M/S YASH EXPORTS, B-47/A, PRABHU MARG TILAK NAGAR, JAIPUR. CUKE VS. THE ACIT, CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHCPB0047K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. C. JAIN (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P. R. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/11/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 16/01/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST OR DER DATED 09.10.2015 OF CIT (A) FOR THE ASSESSMENT YEAR 2011- 12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED AUTHORITIES HAD ERRED AT LAW A S WELL AS ON FACTS IN REDUCING THE EXPORT TURNOVER BY RS. 145,95 ,660/- BEING NOT ALLOWABLE FOR CLAIMING THE BENEFIT U/S 10AA OF THE I.T. ACT. ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 2 2. THAT THE LEARNED AUTHORITIES HAD ERRED AT LAW AS WELL AS ON FACTS IN DISALLOWING THE AMOUNT OF LABOR CHARGES OF RS. 5,33,220/- INCURRED ON WAGES PAID BY NOT ACCEPTING THE EVIDENC E INVOKING RULE 46A OF THE ACT. 3. THAT THE LEARNED AUTHORITIES HAD ERRED AT LAW AS WELL AS ON FACTS IN RESTRICTING THE DEDUCTION CLAIMED U/S 10AA AT RS. 5,56,975/- AS AGAINST OF RS. 45,06,355/- AND FURTHE R ERRED IN REDUCING THE SAME TO NIL BY THE CIT(A). 4. THAT THE LEARNED AUTHORITIES HAD ERRED AT LAW AS WELL AS ON FACTS IN TAKING THE AMOUNT OF RS. 2,47,008/- OF INV ESTMENTS MADE IN SHARES OF TATA TEA LIMITED AS UNEXPLAINED INVEST MENT AND AN AMOUNT OF RS. 2,39,500/- OF SALE OF SHARES AS UNDIS CLOSED INCOME AND THEREBY ERRED IN TAKING BOTH THE TRANSACTIONS A S INCOME OF RS. 4,86,508/- 5. THAT THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE HEARING. 2. GROUND NOS. 1 TO 3 ARE REGARDING DISALLOWANCE OF CLAIM OF DEDUCTION U/S 10AA OF THE I.T. ACT. THE ASSESSEE IS A PROPRIETOR OF M/S YASH EXPORTS AND STATED TO BE IN THE BUSINESS OF MA NUFACTURING AND TRADING OF SILVER, GOLD AND OTHER JEWELLERY ITEMS F ROM THE UNIT LOCATED IN SEZ, SITAPURA INDUSTRIAL AREA, SANGANER, JAIPUR. TH E ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER, 2011 DECLARING TOTAL INCOME OF RS. 57,01,610/- AFTER CLAIMING DEDUCTION U/S 10AA OF RS . 45,06,355/-. DURING THE SCRUTINY ASSESSMENT THE AO RESTRICTED TH E CLAIM OF DEDUCTION U/S 10AA TO RS. 39,49,380/- BECAUSE THE AO HAS RED UCED THE EXPORT TURNOVER OF THE ASSESSEE BY AN AMOUNT OF RS. 1,45,9 5,660/- ON THE GROUND THAT THE ASSESSEE HAS NOT BROUGHT THE SALE P ROCEEDS WITHIN THE ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 3 PRESCRIBED PERIOD UPTO 30 TH SEPTEMBER, 2011. THEREFORE, FOR WANT OF REALISATION OF THE EXPORT PROCEEDS IN THE CONVERTIB LE FOREIGN EXCHANGE WITHIN THE STIPULATED PERIOD UPTO 30.09.2011 THE AO REDUCED EXPORT TURNOVER OF THE ASSESSEE AND CONSEQUENTLY RESTRICTE D THE DEDUCTION U/S 10AA OF THE ACT. ON APPEAL, THE LD. CIT(A) HAS NOT ONLY CONFIRMED THE ACTION OF THE AO EXCLUDING THE AMOUNT WHICH WAS NOT REMITTED IN THE CONVERTIBLE FOREIGN EXCHANGE WITHIN THE STIPULATED TIME FRAME UPTO 30.09.2011 ALSO PROPOSED TO WITHDRAW THE ENTIRE CL AIM OF DEDUCTION U/S 10AA ON THE GROUND THAT THE ASSESSEE IS NOT DOING A NY MANUFACTURE ACTIVITY AS THE ASSESSEE IS GETTING THE ENTIRE WORK DONE FROM JOB WORKERS. ACCORDINGLY, THE LD. CIT(A) ISSUED A SHOW CAUSE NOTICE FOR ENHANCEMENT OF THE ASSESSMENT. THE ASSESSEE IN ITS REPLY CONTENDED THAT THE ACTIVITY CARRIED OUT BY THE ASSESSEE IS IN THE NATURE OF MANUFACTURE AS ONLY IS A PART OF THE WORK DONE BY T HE JOB WORKERS AND REST OF THE WORK HAS BEEN CARRIED OUT BY THE ASSESS EE IN THE FACTORY/UNDERTAKING ILLEGIBLE FOR DEDUCTION U/S 10A A OF THE ACT. THE ASSESSEE HAS FURTHER CONTENDED THAT OUTWARD AND INW ARD MOVEMENT OF THE RAW MATERIAL WAS DULY RECORDED IN THE CHALLAN O F THE JOB WORK AND REGISTER HAS BEEN CERTIFIED BY THE EXPORT OFFICER. THEREFORE, THE ENTIRE PROCESS INVOLVING THE PHYSICAL MOVEMENT OF GOODS OU T OF THE SEZ IS ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 4 RECORDED AND IS CERTIFIED BY THE AUTHORITIES AFTER VERIFICATION. THE ASSESSEE HAS ALSO FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) IN SUPPORT OF HIS CLAIM THAT THE ASSESSEE IS CARRYING OUT THE MANUFACTURE ACTIVITY HOWEVER, THE LD. CIT(A) HAS REJECTED THE A DDITIONAL EVIDENCE FILED BY THE ASSESSEE WITHOUT ADMITTING THE SAME. A GGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEAL. 2. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSEE IS HAVING ITS UNIT IN THE SPECIAL ECONOMIC ZONE FOR WHICH THE REALISATION OF EXPORT PROCEEDS WITHIN THE STIPULATE D TIME IS EXEMPTED VIDE R.B.I. CIRCULAR NO. 91 DATED 01.04.2003. HE HA S FURTHER CONTENDED THAT THERE IS NO REQUIREMENT U/S 10AA OF THE ACT TO BRING THE EXPORT PROCEEDS WITHIN STIPULATED PERIOD OF 6 MONTHS UPTO 30.09.2011, THEREFORE, THE EXCLUSION OF THE AMOUNT FROM THE EXP ORT TURNOVER ON THE GROUND THAT THE ASSESSEE HAS NOT BROUGHT THE EXPORT PROCEEDS IN THE CONVERTIBLE FOREIGN EXCHANGE WITHIN STIPULATED PERI OD OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IS NOT JUSTIFIED. THE LD. AR HAS RELIED UPON THE RBI CIRCULAR AND SUBMITTED THAT THERE IS NO PRE SCRIBED TIME LIMIT FOR REALISATION OF EXPORT MADE BY THE SEZ. 3. AS REGARDS THE QUESTION OF MANUFACTURE ACTIVITY CARRIED OUT BY THE ASSESSEE THE LD AR OF THE ASSESSEE HAS SUBMITTED TH AT THE ASSESSEE IS ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 5 MANUFACTURING BEADS BY USING THE IMPORT RAW SILVER WHICH IS SENT TO JOB WORKER FOR PREPARATION OF RAW BEADS THROUGH SUB CON TRACTED CHANNELS. THE ASSESSEE IS MAINTAINING JOB WORK REGISTER, OTHE R RELEVANT RECORDS AND BOOKS OF ACCOUNTS. THE TERM MANUFACTURING HAS B EEN DEFINED IN SECTION 2(R) OF SEZ ACT, 2005 WHICH INCLUDES THE PR OCESS SUCH AS CUTTING, POLISHING, BLENDING, REPAIRING, RE-MAKING, ASSEMBLING AND FABRICATING ETC. THEREFORE, THE ACTIVITY CARRIED OU T BY THE ASSESSEE IS MANUFACTURED IN NATURE AS PER EXPLANATION 1 OF SECT ION 10AA WHICH PROVIDE THE MEANING OF MANUFACTURE AS ASSIGNED U/S 2(R) OF SEZ ACT, 2005. HE HAS FURTHER SUBMITTED THAT THE ENTIRE PROC ESS IS TRANSPARENT AND ACTUAL WASTAGE GENERATED DURING THE MANUFACTURE PROCESS IS MENTIONED IN THE CHALLAN AND IS SPECIFIED BY JOB WO RKERS. SUCH WASTAGE IS DULY RECORDED IN STOCK REGISTER WHICH WAS PRODUC ED BEFORE THE AUTHORITIES BELOW. THUS, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE HAS PRODUCED ALL THE RELEVANT RECORDS TO SUPPORT HIS C LAIM THAT THE ASSESSEE IS IN THE MANUFACTURE ACTIVITY THEN DENIED THE CLAI M OF THE LD. CIT(A) IS NOT JUSTIFIED. HE HAS FURTHER SUBMITTED THAT THE CL AIM OF THE ASSESSEE U/S 10AA OF THE ACT HAS BEEN ALLOWED IN FULL FOR TH E ASSESSMENT YEAR 2009-10. THEREFORE, THE REVENUE CANNOT DENY THE SAI D CLAIM ONCE THE ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 6 ASSESSEE WAS FOUND TO BE ILLEGIBLE FOR THE DEDUCTIO N U/S 10AA FOR THE ASSESSMENT YEAR 2009-10. 4. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT AS PER SUB-SECTION 7 OF SECTION 10AA THE PROVISIONS OF SUB-SECTION 10A (5) ARE APPLICABLE FOR THE PURPOSE OF THE DEDUCTION UNDER SECTION 10AA. FU RTHER, AS PER RULE 16D OF THE IT RULES THE ASSESSEE IS REQUIRED TO FIL E THE AUDIT REPORT IN THE FORM 56F WHICH CONTENTS COLUMN OF EXPORT PROCEE DS BROUGHT IN CONVERTIBLE FOREIGN EXCHANGE WITHIN A PERIOD OF 6 M ONTH FROM THE END OF THE FINANCIAL YEAR. THEREFORE, THE LD. DR HAS CO NTENDED THAT IT IS MANDATORY REQUIREMENT FOR CLAIMING THE DEDUCTION U/ S 10A OF THE ACT THAT THE ASSESSEE SHOULD REMIT THE EXPORT PROCEEDS IN CONVERTIBLE FOREIGN EXCHANGE WITHIN THE PERIOD OF 6 MONTHS FROM THE ENDS OF THE FINANCIAL YEAR THE RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE ASSESSEE HAS UNDISPUTEDLY FAILED TO REMIT EXPOR T PROCEEDS WITHIN 6 MONTHS AS PRESCRIBED UNDER THE PROVISIONS OF THE AC T AND THEREFORE, THE AO RIGHTLY EXCLUDED THE SAID AMOUNT FROM THE EXPORT TURNOVER OVER. 5. AS REGARDS THE DENIAL OF DEDUCTION U/S 10A BY TH E LD. CIT(A) THE LD. DR HAS SUBMITTED THAT WHEN THE ASSESSEE HAS NOT CARRIED OUT ANY MANUFACTURE ACTIVITY IN ITS UNIT AND THE ENTIRE WOR K HAS BEEN DONE ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 7 THROUGH JOB WORKERS THEN THE ASSESSEE IS NOT ELIGIB LE FOR DEDUCTION U/S 10AA OF THE ACT. HE HAS RELIED UPON THE ORDERS OF T HE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS CLAIMED THAT H E IS IN THE BUSINESS ACTIVITY OF 3 SEGMENTS NAMELY MANUFACTURE OF SILVER BEADS, TRADING OF SILVER/GOLD AND TRADING OF TOOLS. THE DETAILS OF TU RNOVER AND PROFIT OF THE ALLEGED 3 SEGMENTS ARE AS UNDER:- MANUFACTURING OF SILVER BEADS TRADING OF SILVER/GOLD TRADING OF TOOLS TOTAL TURNOVER 291.62 2399.61 71.68 2762. 91 GROSS PROFITS 45.89 45.09 16.63 107.61 NET PROFITS 45.06 38.26 16.43 99.75 HOWEVER, THE AO AS WELL AS LD. CIT(A) HAS HELD THA T THE ASSESSEE IS NOT MAINTAINING ANY SEPARATE BOOKS OF ACCOUNTS REGARDIN G THESE ACTIVITIES AND THEREFORE, THE AO HAS CONSIDERED THE ENTIRE TU RNOVER FROM ALL 3 ACTIVITIES AS TOTAL TURNOVER OF THE SEZ UNIT OF THE ASSESSEE. FURTHER THE ASSESSING OFFICER HAS REDUCED THE EXPORT TURNOVER B Y THE AMOUNT OF EXPORT PROCEEDS WHICH WAS NOT REMITTED BY THE ASSES SEE IN CONVERTIBLE FOREIGN EXCHANGE UPTO 30.09.2011. ADMITTEDLY THE AS SESSEE HAS ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 8 BROUGHT EXPORT TURNOVER ONLY IN THE MONTH OF NOVEMB ER, 2011. HOWEVER, U/S 10AA THERE IS NO SPECIFIC REQUIREMENT OF REMITTANCE OF THE EXPORT TURNOVER WITHIN 6 MONTHS FROM THE END OF THE FINANCIAL YEAR. WE FIND THAT THERE IS NO SUCH CONDITION U/S 10AA OF THE IT ACT AS IT IS MANDATORY CONDITION PROVIDED U/S 10A AND10B OF THE ACT. THE LD. DR HAS SUBMITTED THAT AS PER SECTION 10AA(7) THE PROVI SIONS OF SUB- SECTIONS 5 AND 6 OF SECTION 10A ARE APPLICABLE FOR THE PURPOSE OF SECTION 10AA(1) OF THE ACT. WE FIND THAT THESE CONDITIONS O F BRINGING THE EXPORT PROCEEDS IS NOT PROVIDE UNDER SUB-SECTION 5 OR SUB- SECTION 6 OF SECTION 10A OF THE ACT. RATHER THE SPECIFIC CONDITION IS PR OVIDED UNDER SUB- SECTION 3 OF SECTION 10A OF THE IT ACT AND THEREFOR E, EVEN BY APPLYING SUB-SECTIONS 5 AND 6 OF SECTION 10A IT CANNOT BE IN FERRED THAT THE SALE PROCEEDS OF ARTICLES OR GOODS EXPORTED OUTSIDE OF I NDIA ARE REQUIRED TO BE REMITTED IN CONVERTIBLE FOREIGN EXCHANGE WITHIN 6 MONTHS FROM THE END OF FINANCIAL YEAR. IT IS PERTINENT TO NOTE THAT EVEN U/S 10A(3) THE TIME PERIOD MAY BE EXTENDED IF THE COMPETENT AUTHOR ITY MAY ALLOW IN THIS BEHALF. THEREFORE, THE COMPETENT AUTHORITY FOR ALLOWING THE TIME PERIOD TO REMIT THE SALE PROCEEDS IS THE RBI AND VI DE CIRCULAR NO. 91 DATED 01.04. 2003 THE RBI HAS EXEMPTED THE CONDITI ON OF REMITTED TIME PERIOD WITHIN WHICH THE EXPORT PROCEEDS ARE TO BE REMITTED IN ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 9 CONVERTIBLE FOREIGN EXCHANGE. PARA A OF THE SAID CI RCULAR IS RELEVANT IN THIS REGARD AND READS AS UNDER:- A. REALISATION OF EXPORT PROCEEDS IN TERMS OF PARA 11(C) OF AP (DIR SERIES) CIRCULAR NO. 28 DATED MARCH 30,2001, UNITS SITUATED IN SPECIAL ECON OMIC ZONES HAVE BEEN PERMITTED TO REALIZE AND REPATRIATE TO IN DIA THE FULL VALUE OF GOODS OR SOFTWARE WITHIN A PERIOD OF TWELV E MONTHS FROM THE DATE OF EXPORT. IT HAS NOW BEEN DECIDED TO REMO VE THE STIPULATION OF TWELVE MONTHS OR EXTENDED PERIOD THE REOF FOR REALIZATION OF EXPORT PROCEEDS. ACCORDINGLY, THERE SHALL BE NO PRESCRIPTION OF ANY TIME LIMIT FOR REALIZATION OF EXPORTS MADE BY UNITS IN SEZS. HOWEVER, THE UNITS IN SEZS WILL CONT INUE TO FOLLOW THE GR/PP/SOFTEX EXPORT PROCEDURE OUTLINED IN PART B OF ANNEXURE TO A.P. (DIR SERIES) CIRCULAR NO. 12 DATED SEPTEMBER 9, 2000 AS AMENDED FROM TIME TO TIME. ACCORDINGLY WHEN THERE IS NO SUCH CONDITION U/S 10A A AND RBI HAS SPECIFICALLY REMOVED THE STIPULATION OF TIME PERIOD FOR SEZ UNITS THEN THE SAID CONDITION CANNOT BE IMPORTED FROM OTHER PROVIS IONS OF THE ACT. AS REGARDS THE REQUIREMENT OF SUBMITTING AUDIT REPORT AS PER RULE 16D AND FORM 56F WHEN THERE IS NO CONDITION PROVIDED UNDER THE PROVISIONS OF THE ACT THEN THE PERFORMA PROVIDED UNDER RULE CANNO T OVERRIDE THE SUBSTANTIVE PROVISIONS OF THE ACT. ACCORDING WE HOL D THAT THE SALE PROCEEDS REMITTED BY THE ASSESSEE AFTER 30.09.2011 CANNOT BE EXCLUDED FROM THE EXPORT TURNOVER FOR THE PURPOSE OF COMPUTI NG THE DEDUCTION U/S 10AA OF THE IT ACT. ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 10 7. AS REGARDS THE ISSUE OF NATURE OF ACTIVITY OF TH E ASESSEE IT IS RELEVANT TO REFER TO THE DEFINITION AS PER THE EXPL ANATION 1 OF SECTION 10AA OF THE ACT WHEREIN IT IS PROVIDED THAT THE DEF INITION OF TERM MANUFACTURE AS ASSIGNED BY SECTION 2(R) OF THE SPEC IAL ECONOMIC ZONE ACT, 2005 HAS TO BE CONSIDERED FOR THE PURPOSE OF S ECTION 10AA OF THE ACT. FURTHER, THE ASSESSEE HAS BROUGHT TO OUR NOTIC E THAT THE CLAIM OF DEDUCTION U/S 10AA OF THE ACT WAS ALLOWED IN FULL F OR THE ASSESSMENT YEAR 2009-10 AND THEREFORE, THE DEPARTMENT CANNOT D ENY THE BENEFIT OF SECTION 10AA IN THE SUBSEQUENT YEAR WHEN THERE IS N O CHANGE IN THE FACTS AND CIRCUMSTANCES. THERE IS NO QUARREL ON THE POINT THAT THE ELIGIBILITY OF CLAIM OF DEDUCTION U/S 10AA HAS TO B E TESTED IN THE FIRST YEAR OF CLAIM AND ONCE THE AO HAS ALLOWED THE CLAIM OF THE ASSESSEE IN THE SCRUTINY ASSESSMENT THEN WITHOUT ANY CHANGE IN THE FACTS AND CIRCUMSTANCES WHICH HAVE PERMEATED FROM ONE YEAR TO ANOTHER YEAR THE ASSESSING OFFICER HAS TO MAINTAIN THE CONSISTENCY. NEITHER THE AO NOR LD. CIT(A) HAS DEALT WITH THIS ISSUE IN THEIR IMPUG NED ORDERS WHILE DENYING THE CLAIM U/S 10AA OF THE ACT. ONE ANOTHER ASPECT WHICH IS RELEVANT FOR THE CLAIM OF DEDUCTION U/S 10AA IS WHE THER THE MANUFACTURE ACTIVITIES ARE DONE BY THE SEPARATE UND ERTAKING OR ALL THE ACTIVITIES ARE CARRIED OUT BY THE ASSESSEE FROM SIN GLE UNDERTAKING. SINCE, ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 11 THESE FACTS HAS TO BE EXAMINED ALONG WITH THE FACTS WHETHER THERE IS NO CHANGE IN THE FACTS CONSIDERED BY THE AO FOR THE AS SESSMENT YEAR 2009- 10 WHILE ACCEPTING THE DEDUCTION U/S 10AA OF THE AC T, THEREFORE, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFF ICER FOR RECONSIDERATION AND RE-ADJUDICATION OF THE SAME BY TAKING INTO ACCOUNT THE FACTS OF THE ASSESSMENT YEAR UNDER CONSIDERATIO N IN COMPARISON TO THE FACTS FOR THE ASSESSMENT YEAR 2009-10. THE CLAI M OF THE ASSESSEE CAN BE DISALLOWED FOR THE YEAR UNDER CONSIDERATION ONLY WHEN THE ASSESSING OFFICER BRING ON RECORD THE DISTINGUISHIN G FACTS FOR THE YEAR UNDER CONSIDERATION. 8. IF ALL THE ACTIVITIES CARRIED OUT BY THE ASSESSE E FROM SINGLE UNIT/ UNDERTAKING WHICH IS CLAIMED TO BE ELIGIBLE UNIT OF THE ASSESSEE IN THE SEZ THEN THE TOTAL TURNOVER AS PER SUB-SECTION 7 OF SECTION 10AA HAS TO BE TAKEN AS TURNOVER OF THE UNIT/UNDERTAKING. FURTH ER, THE LD. CIT(A) HAS REJECTED THE APPLICATION OF THE ASESSEE FOR ADM ISSION OF THE ADDITIONAL EVIDENCE. SINCE, WE HAVE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER, THEREFORE, IN THE INTEREST O F JUSTICE AND FAIR PLAY THE ADDITIONAL EVIDENCE SOUGHT TO BE PRODUCED BY TH E ASSESSEE IS ALSO BE CONSIDERED BY THE AO WHILE ADJUDICATING THIS ISS UE AFRESH. NEEDLESS TO SAY THE ASSESSEE BE GIVEN AS PROPER OPPORTUNITY OF HEARING BEFORE ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 12 PASSING THE FRESH ORDER. ACCORDINGLY, GROUND NO. 1 TO 3 OF THE ASSESSEES APPEAL ARE SET ASIDE TO THE RECORD OF TH E ASSESSING OFFICER EXCEPT THE ISSUE OF REQUIREMENT OF REMITTANCE OF E XPORT PROCEEDS WITHIN 6 MONTHS FROM THE END OF THE PREVIOUS YEAR W HICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. 9. GROUND NO. 4:- AT THE TIME HEARING, THE LD. AR OF THE ASSESSEE HAS STATED AT BAR THAT THE ASSESSEE DOES NOT PRESS GROUND NO. 4 AND THE SAME MAY BE DISMISSED AS NOT PRESSED. THE LD. D R HAS RAISED NO OBJECTION IT THIS GROUND OF THE ASSESSEES APPEAL I S DISMISSED AS NOT PRESSED. ACCORDINGLY THE GROUNDS NO. 4 OF THE ASSES SEES APPEAL IS DISMISSED BEING NOT PRESSED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/01/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VINIT KUMAR BORA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT - ACIT, CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) ITA NO. 49/JP/2016 SHRI VINIT KUMAR BORA VS. ACIT 13 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 49/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR