DCIT -6, Lucknow V. M/S P.N.INTERNATIONAL, Lucknow

ITA 569/LKW/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5155 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 30-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: S K ARORA
• Keywords: Deemed export; Competent authority
• Section: 10B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.569/LKW/2011 A.Y.:2008 - 09 DY.C.I.T., RANGE - VI, LUCKNOW. VS. M/S P. N. INTERNATIONAL, C - 12, AMUASI INDUSTRIAL AREA, LUCKNOW. PAN:AAGFP8425J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI Y. P. SRIVASTAVA, D.R. RESPONDENT BY SHRI S. K. ARORA DATE OF HEARING 17/12/2013 DATE OF PRONOUNCEMENT 2 7 /12/2013 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - II, LUCKNOW DATED 29/07/2011 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN TREATING SALES OF RS. 3,11,57,752/ - BY THE ASSESSEE TO M/S DELTA PLUS (I) PVT. LTD., A COMPANY SITUATED IN FALTA SPECIAL ECONOMIC ZONE, KOLKATA AS DEEMED EXPORT EVEN THOUGH THERE IS NO SUCH PROVISIONS IN THIS SECTION. 2. THE CIT ( A) HAS ERRED IN LAW AND O N FACTS IN ALLOWING DEDUCTIONS U/S 10B ON THE ABOVE SALES IGNORING THE DECISION OF HON'BLE ITAT BANGALORE IN THE CASE OF TATA ELXSI LTD. VS . ASSTT. CIT (2008) 115 TTJ BANGALORE 423, IN WHICH IT HAS BEEN HELD THAT THE DEDUCTION IS NOT ALLOWABLE ON SUCH SALES. 3. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE A.O. TO RECOMPUTE THE DEDUCTION ALLOWABLE U/S 10B AFTER TREATING 2 THE SUM OF RS.3,31,57,572/ - AS DEEMED EXPORTS, AS THE ABOVE SALES CANNOT BE TREATED AS EXPORT SALES. 4. APPELLANT CRAV E LEAVES TO ADD OR AMEND ANY ONE OR MORE OF THE GROUNDS OF APPEALS, AS STATED ABOVE, AS AND WHEN NEED TO DOING SO ARISES WITH THE PRIOR PERMISSION OF THE COURT. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT ( A). H E ALSO SUBMITTED THAT THE BUYER COMPANY I.E. M/S DELTA PLUS PVT. LTD. IS A COMPANY SITUATED IN FALTA SPECIAL ECONOMIC ZONE, KOLKATA (SEZ). HE SUBMITTED THAT AS PER PAGE 6 OF THE PAPER BOOK, IT CAN BE SEEN THAT THE SEZ IS A SPECIFICALLY DELINEATED DUTY FREE ENCLAVE DEEMED TO BE FOREIGN TERRITORY FOR THE PURPOSES OF TRADE OPERATIONS AND DUTIES AND TARIFFS. HE FURTHER SUBM ITTED THAT AS PER PAGE NO. 74 TO 82 OF THE PAPER BOOK, ALL THE PAYMENTS WERE RECEIVED FROM THIS COMPANY IN CONVERTIBLE FOREIGN CURRENCY I.E. EURO AND THESE DOCUMENTS ARE BANK COLLECTION ADVICES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MAT ERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT AS PER SUB SECTION (3) OF SECTION 10B OF THE ACT, THE ASSESSEE HAS TO RECEIVE PROCEEDS FOR EXPORT OUT OF INDIA 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. HENCE, THE ONLY REQUIREMENT IS TO BE SEEN IS THAT WHETHER THE SALE TO TH IS COMPANY I.E. DELTA PLUS PVT. LTD. SITUATED IN KOLKAT A IS AN EXPORT SALE OR NOT AND WHETHER THE SALE PROCEEDS HAVE BEEN RECEIVED IN CONVERTIBLE FOREIGN CURRENCY OR NOT. IN THIS REGARD, WE FIND THAT AS PER PAGE 6 OF THE PAPER BOOK, SEZ IS A SPECIFICALLY DELINEATED DUTY FREE ENCLAVE DEEMED TO BE FOREIGN TERRI TORY FOR THE PURPOSES OF TRADE OPERATIONS AND DUTIES AND TARIFFS. ON THE SAME PAGE, IT IS ALSO SPECIFIED THAT THE GOODS AND 3 SERVICES GOING INTO SEZ AREA FROM DTA SHALL BE TREATED AS EXPORTS AND GOODS COMING FROM THE SEZ AREA INTO DTA SHALL BE TREATED AS I F THESE ARE BEING IMPORTED. HENCE, THE SALE TO THIS COMPANY I.E. DELTA PLUS PVT. LTD. BEING A COMPANY SITUATED IN A SPECIFICALLY DELINEATED DUTY FREE ENCLAVE DEEMED TO BE FOREIGN TERRITORY HAS TO BE CONSIDERED AS EXPORT SALE. AS PER PAGE NO. 74 TO 82 OF THE PAPER BOOK, IT IS SEEN THAT ENTIRE SALE PROCEEDS HAVE BEEN RECEIVED IN FOREIGN CURRENCY, AS HAS BEEN CERTIFIED BY UNION BANK OF INDIA. FOR EXAMPLE AT PAGE 74 OF THE PAPER BOOK IS THE ADVICE OF UNION BANK OF INDIA REGARDING RECEIPT OF EURO OF 64,000 EQ UIVALENT TO RS.13,59,137/ - AFTER DEDUCTING FOREIGN BANK CHARGES AND COMMISSION CHARGES. SO ARE THE OTHER BANK ADVICES FROM PAGE 75 TO 82 OF THE PAPER BOOK. HENCE, WE FIND THAT IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS SATISFIED BOTH THE CONDITIO NS I.E. EXPORT OF GOODS OUTSIDE INDIA AND RECEIPT OF SALE PROCEEDS IN CONVERTIBLE FOREIGN CURRENCY. UNDER THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A). WE THEREFORE, CONFIRM THE SAME. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 T H DECEMBER, 2013. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR