ITO 5 (2)(3), MUMBAI V. M/S MISSION VIVACARE LTD (IN LIQUIDATION _, MUMBAI

ITA 8066/MUM/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5487 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 30-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 10; 10AA; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘F‘ BENCH MUMBAI BEFORE: SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA No.8066/Mum/2019 (Asse ssment Year : 2011-12) ITO-5(2)(3) R.No.566, Aayakar Bhavan M.K.Road Mumbai – 400 020 Vs. M/s. Mission Vivacare Ltd., 54-B, Drug House Proctor Road Grant Road, Mumbai – 400 007 PAN/GIR No.AAACM2929F (Appellant) .. (Respondent) Revenue by Smt. Somogyan Pal Assessee by None Date of Hearing 28/12/2021 Date of Pronouncement 28/12/2021 आदेश / O R D E R PER KULDIP SINGH(J.M): Appellant, ITO-5(2)(3), Mumbai (hereinafter referred to as 'the Revenue') by filing the present appeal sought to set aside the impugned order dated 31/10/2019 passed by the Commissioner of Income-tax (Appeals), Mumbai for AY 2014-15 on the grounds inter alia that :- "Whether on the facts and circumstances of the case and in Law, the Ld. CIT (A) was correct in deleting the disallowance u/s.10AA of the Income Tax Act, 1961 without appreciating the fact that Assesses should submit information or certificate regarding ITA No.8066/Mum/2019 M/s. Mission Vivacare Ltd., 2 realization of foreign exchange in Form No. 56F as required under the provision of section 10A(3) of the income Tax Act?" "Whether on the facts and circumstances of the case and in Law, the Ld. CIT (A) was correct in deleting the disallowance u/s.1OAA of the Income Tax Act, 1961 without appreciating the fact that the department has not accepted the decision of the Hon'ble ITAT, Delhi in the case of M/s. BT e.serve (I) Pvt. Ltd. vs ITO - ITA No. 99/Del/2016 for A.Y. 2011-12 wherein the appeal of revenue is pending before the Hon'ble Delhi High Court." 2. Briefly stated facts necessary for adjudication of the controversy at hand are: Assessee’s claim for deduction u/s.10AA of the Income Tax Act (in short the “Act”) was rejected by the Assessing Officer on the ground that though the export proceeds received by the assessee were Rs.21,52,135/-, the assessee has claimed deduction u/s.10AA to the tune of Rs.60,34,92,967/- after reducing the expenses of Rs.22,01,71,244/- from the sale proceeds of Rs.82,36,64,211/- for which assessee was required to move an application with Reserve Bank of India for extension of time for realization of the proceeds. Consequently, Assessing Officer by invoking provisions contained u/s.10A(3) has restricted the deduction u/s.10AA of the Act to the tune of Rs.15,76,854/- as against Rs.60,34,92,967/- claimed by the assessee. 3. Assessee carried the matter before the ld. CIT(A) by way of filing appeal, who has partly allowed the same. Feeling aggrieved, Revenue has come up before the Tribunal by way of filing the present appeal. 4. None appeared on behalf of the assessee / respondent to contest the present appeal despite issuance of notice, hence, we proceeded to ITA No.8066/Mum/2019 M/s. Mission Vivacare Ltd., 3 decide the appeal with the assistance of the ld. DR for the Revenue and by perusing the facts on record. 5. We have heard the ld. DR for the Revenue, perused the order passed by lower Revenue authorities and case relied upon by the assessee before ld. CIT(A). 6. Bare perusal of the impugned order passed by ld. CIT(A) goes to prove that ld. CIT(A) has thrashed the issue in question, in view of the decision rendered by Co-ordinate Bench of Tribunal in case of BT-e- serve(India) Private Limited vs. ITO in ITA No.565/Del/2015 A.Y.2010- 11 & ITA No.99/Del/2016 A.Y.2011-12. The relevant portion of the aforesaid order is as under:- 6.3.3 It is observed that this issue was considered by the Hon'ble ITAT Delhi in the case BT e-serve ( India ) private Limited V ITO ITA No 565/Del/2015 AY 2010-11 & ITA No 99/Del/2016 AY 2011-12 and it was held that The provisions of section 10 AA does not provide any time- limit of bringing such consideration into India like section 10 A (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 further period as the competent authority may allow in this behalf. Further the contention of the revenue that provision of section (5) .and (6) of section 10A shall apply by virtue of the provision of section 10AA (8) of the act. The provision of section 10A (5) speaks about the audit of the accounts and submission of report of an accountant in specified Performa. In this case same has been complied with by the assessee. Further section 10A (6) speaks about the restrictions of other deduction during the holiday period, which is not the dispute in this case, In view of this it is apparent that there is no time-limit prescribed for bringing the consideration of export into India. Admittedly, the consideration has been received in India, albeit Subsequent to filing of the return by the assessee. However, merely because the consideration has been received after 6 months from the ITA No.8066/Mum/2019 M/s. Mission Vivacare Ltd., 4 close of the financial year the deduction cannot be denied to the assessee on the sum. In view of this we direct the Ld. assessing officer to consider a sum of Rs. 4.80 crores as export turnover of the assessee and accordingly grant .deduction to the assessee under section 10 AA of the income tax act. Accordingly, Ground No. 14 to 22 of the appeal of the assessee are partly allowed, vide letter 6.3.4 It is apparent from the plain reading of the above decision that the provisions of section 10 AA 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 further period as the competent authority may allow in .this behalf. In view of the above it is held that the disallowance of deduction claimed by the appellant u/s.10AA is uncalled for. The AO is therefore directed to allow the deduction claimed by the appellant if otherwise eligible. 7. When we examine the findings recorded by ld. CIT(A) in the light of the grounds raised by the appellant, the Revenue has merely challenged the impugned order passed by ld. CIT(A) on the ground that the Revenue department has not accepted the decision of the Tribunal rendered in case of M/s. BT-e-serve(India) Private Limited (supra) which is lying challenged before the Hon’ble Delhi High Court. 8. We are of the considered view that the decision rendered by the Tribunal, which is a final fact finding authority cannot be disobeyed by the Revenue department only on the ground that Revenue has challenged the same before the Hon’ble High Court unless operation of the order (supra) has been stayed by the higher forum. 9. So, we are of the considered view that when provisions contained u/s.10AA does not provide for any time limit and 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 six months from the end of the previous ITA No.8066/Mum/2019 M/s. Mission Vivacare Ltd., 5 years or within such further period as the competent authority may allow in his behalf deduction claimed by the assessee u/s.10AA cannot be declined. Consequently, we find no scope to interfere into the impugned order passed by ld. CIT(A), hence, upheld. Resultantly, appeal filed by the Revenue is hereby dismissed. 10. In the result, appeal filed by the Revenue is dismissed. Order pronounced in open Court on 28/12/2021 Sd/- (OM PRAKASH KANT ) Sd/- (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 28/12/2021 KARUNA, sr.ps Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//