Assistant Commisioner of Income Tax, JAMNAGAR V. Siyaram Metals Pvt. Ltd., JAMNAGAR

MA 68/RJT/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2186 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 05-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNIL MISTRY
• Assessee Lawyers: MJ RANPURA
• Keywords: Deemed export; Set aside
• Section: 10B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED HONBLE ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, HONBLE JUDICIAL MEMBER MISC. APPLICATION NO.68/RJT/2019 IN ITA.NO.155/RJT/2011 / ASSTT.YEAR : 2003-04 SIYARAM METALS PVT. LTD. JAMNAGAR VS THE ACIT, CIRCLE - 2, JAMNAGAR MISC. APPLICATION NO.69/RJT/2019 IN ITA.NO.131/RJT/2012 / ASSTT.YEAR : 2004-05 SIYARAM METALS PVT. LTD. JAMNAGAR VS THE ACIT, CIRCLE - 2, JAMNAGAR MISC. APPLICATION NO.70/RJT/2019 IN ITA.NO.344/RJT/2013 / ASSTT.YEAR : 2005-06 SIYARAM METALS PVT. LTD. JAMNAGAR VS THE ACIT, CIRCLE - 2, JAMNAGAR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M. J. RANPURA, AR REVENUE BY : SHRI SUNIL MISTRY , SR. DR / DATE OF HEARING : 27/02/2020 / DATE OF PRONOUNCEMENT: 28/02/2020 !/ O R D E R PER BENCH:- BY THE PRESENT THREE MISC. APPLICATIONS, THE ASSESS EE IS SEEKING FOR RECALLING OF AGAINST THE COMMON ORDER DATED 28.06.2 019 PASSED BY THE HONBLE TRIBUNAL IN ITA NOS. 155 & 292/RJT/2011 FOR A.Y. 200 3-04, ITA NOS. 131 & 359/RJT/2012 FOR A.Y. 2004-05 AND ITA NOS. 344 & 35 0/RJT/2013 FOR A.Y. MA NO.68 TO 70/RJT/2019 2 2005-06. SINCE ALL THE MISCELLANEOUS APPLICATIONS RELATE TO THE IDENTICAL ISSUE, THESE ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON ORDER. 2. M.A. NO. 68/RJT/2019 ITA NO. 155/RJT/2011 (A.Y. 2 003-04) IS TAKEN AS THE LEAD CASE. 3. IN THE ORIGINAL APPEAL RELATING TO THIS MISCELL ANEOUS APPLICATION THE ASSESSEE CHALLENGED THE ACTION OF THE LD. CIT(A) BY R AISING THE FOLLOWING GROUNDS:- 1.0 LD. CIT APPEAL ERRED IN LAW AS WELL AS ON FACT TO CONFIRM THE ORDER OF LD. AO OF NOT TO CONSIDER GENUINE DEEMED EXPORT SALES APPROVE D UNDER THE CENTRAL GOVERNMENT DIRECTION AMOUNTING TO RS. 5,81,82,059/- AS PERMITT ED IN CHAPTER 6 & 8 OF EXPORT IMPORT POLICY AS EXPORT AND AS RECEIPT OF FOREIGN EXCHANGE . THEREFORE, DEEMED EXPORT SALES MADE TO OTHER EOUS INSTEAD OF DIRECTLY IMPORTING BY SUC H AUTHORIZED IMPORTERS MAY BE TREATED AS ALLOWABLE EXPORT EARNING ENTITLED ON SUCH SALE A S EXEMPTED PROFIT U/S. 10B. 2.0 BASED ON ABOVE APPELLANT REQUEST TO PLEASE DIRE CT AO TO ENHANCE PRORATE REBATE UNDER SECTION 10B-80IB. 4. WHILE DECIDING THE ISSUE THE HONBLE TRIBUNAL BY AND UNDER ITS ORDER DATED 28.06.2019 PASSED THE ORDERS IN THE MANNERS A S FOLLOWS:- IN FACTS AND CIRCUMSTANCES OF THE CASE, WE THINK I T PROPER TO SET ASIDE MATTER TO THE FILE OF THE ASSESSING OFFICER TO SEE: (1) THE EXPORT ORIENTED UNIT THROUGH WHOM THE EXPOR T HAS BEEN MADE BY THE ASSESSEE HAS FETCHED FOREIGN EXCHANGE DIRECTLY ATTRIBUTABLE TO SUCH EXPORT. (2) THE SUCH EXPORT ORIENTED UNIT THROUGH WHOM THE ASSESSEE HAS MADE EXPORT AS DEEMED EXPORT HAS ALSO NOT CLAIMED ANY DEDUCTION U/ S. 10B OF THE ACT. BECAUSE U/S. 10B OF THE ACT THE DOUBLE DEDUCTIONS ARE NOT ALLOWABLE. 5. IT IS THE CASE OF THE APPLICANT BEFORE US THAT P RIOR TO THIS ORDER DATED 28.06.2019 THE HONBLE TRIBUNAL BY AND UNDER ITS ORD ER DATED 26.09.2018 IN ITA NO. 1062/RJT/2010 FOR A.Y. 2002-03 AND ITA NO. 1072 /RJT/2010 FOR A.Y. 2002- 03 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN T HE FOLLOWING MANNER:- 7. AFTER TAKING NOTE OF THE JUDGMENT IN THE CASE O F TATA ELEXI (SUPRA), HONBLE COURT HAS APPRECIATED OTHER ISSUES ALSO, AND ULTIMATELY HELD THAT SALES MADE TO OTHER EOU WOULD BE CONSIDERED TO BE IN THE AMBIT OF DEEMED EXPORT. C ONCLUSION MADE BY THE HONBLE COURT READS AS UNDER: MA NO.68 TO 70/RJT/2019 3 21. AS HELD BY THE DIVISION BENCH OF THIS COURT IN M/S. TATA ELXSI'S LTD. CASE, THE PURPOSE OF GIVING THESE DEDUCTIONS IN THESE SPECIAL PROVISIONS IS TO ENCOURAGE EXPORTS AND FETCH FOREIGN CURRENCY IN TERMS OF EXIM POLICY PROPOUNDED AND ANNOUNCED BY THE UNION OF INDIA. THE 'DEEMED EXPORT ' BY THE ASSESSEE UNDERTAKING EVEN THROUGH A THIRD PARTY WHO HAS EXPO RTED SUCH GOODS TO A FOREIGN COUNTRY AND HAS FETCHED FOREIGN CURRENCY FOR INDIA, STILL REMAINS A 'DEEMED EXPORT' IN THE HANDS OF THE ASSESSEE UNDERTAKING AL SO. IF THE PARLIAMENT INTENDED TO PUT ANY RESTRICTIVE MEANING FOR CURTAILING THE SAID DEDUCTION, SUCH WORDS COULD BE EMPLOYED IN SUB-SECTION(1) ITSELF, WHICH COULD HAVE EXCLUDED 'DEEMED EXPORT' FROM THE AMBIT AND SCOPE OF WORD 'EXPORT' EMPLOYED IN SU BSECTION(1) OF S.10B OF THE ACT. THE EXPLANATION DEFINING 'EXPORT TURNOVER' IN BOTH THESE PROVISIONS DOES NOT MAKE ANY SUCH DISTINCTION BETWEEN THE 'DIRECT EXPORT' AN D 'DEEMED EXPORT'. 22. FOR A HARMONIOUS READING OF THESE PROVISIONS OF THE ACT W HICH ARE UNDOUBTEDLY BENEFICIAL PROVISIONS, THE WORD 'EXPORT' READ WITH THE BACKGROUND OF EXIM POLICY OF UNION OF INDIA WOULD CERTAINLY INCLUDE 'DEEMED EXPO RT' ALSO WITHIN THE AMBIT AND SCOPE OF THE 'EXPORT TURNOVER' AS EXPLAINED IN EXPL ANATION-2 OF SUB-SECTION (9A) OF THE SAID S.10B OF THE ACT. 23. THEREFORE, BOTH THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE APPELLANT-REVENUE TO RESTRICT THE D EDUCTION IN THE HANDS OF THE RESPONDENT-ASSESSEE BY EXCLUDING THE 'DEEMED EXPORT S', DOES NOT HAVE ANY MERIT AND THE SAID CONTENTION DESERVES TO BE REJECTED AND THE SAME IS ACCORDINGLY REJECTED. 8. RESPECTFULLY FOLLOWING JUDGMENTS OF HONBLE KARN ATAKA HIGH COURT, WE ALLOW THIS COMMON GROUND RAISED BY THE ASSESSEE IN ALL THREE Y EARS. THE LD.AO SHALL GRANT DEDUCTION TO THE ASSESSEE ON SALES MADE TO OTHER EOUS BY TREA TING THEM AS DEEMED EXPORT. 6. THOUGH THE ISSUE AS IT APPEARS FROM THE ORDER PAS SED BY THE HONBLE TRIBUNAL DATED 26.09.2018 HAS ALREADY BEEN DECIDED I N FAVOUR ASSESSEE IN ASSESSEES OWN CASE, THE SAME HAS NOT BEEN TAKEN IN TO CONSIDERATION BY THE CO- ORDINATE BENCH WHILE DEALING THE IDENTICAL ISSUE IN ITA NOS. 155 & 292/RJT/2011 FOR A.Y. 2003-04 IN ITS ORDER DATED 28.06.2019, WHI CH IS AN ERROR APPARENT ON THE FACE OF THE RECORDS AND IN THUS REQUIRED TO BE RECT IFIED AS ALSO SUBMITTED BY THE LD. AR. 7. WE HAVE PERUSED BOTH THE ORDERS FROM WHICH IT AP PEARS THAT THE DIRECTION PASSED BY THE LD. TRIBUNAL IN ITS EARLIER DATED 26.0 9.2018 IN ITA NO. MA NO.68 TO 70/RJT/2019 4 1062/RJT/2010 FOR A.Y. 2002-03 AND ITA NO. 1072/RJT /2010 FOR A.Y. 2002-03 FOLLOWING THE JUDGMENT PASSED BY THE HONBLE KARNAT A HIGH COURT IN THE CASE OF PR.CIT VS. INTERNATIONAL STONES INDIA PVT. LTD. ON TH E IDENTICAL ISSUE HAS NOT BEEN FOLLOWED PROPER PERSPECTIVE BY THE HONBLE TRIBUNAL WHILE DECIDING THE IN ITA NOS. 155&292/RJT/2011 FOR A.Y. 2002-03. WHICH IS F ACTUALLY AN ERROR APPARENT ON THE FACE OF THE RECORDS AND THUS THE SAME IS REQ UIRED TO BE RECTIFIED. IN THAT VIEW OF THE MATTER WE RECALL THE ORDER DATED 28.06. 2019 (IN ITA NO. 155&292/RJT/2011) FOR A.Y. 2003-04. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS ARE RELATING TO THE IDENTICAL ISSUE AR E ALLOWED. ITA NO. 155/RJT/2011, 131/RJT/2011 & 344/RJT/2013: - 8. AS IT APPEARS FROM THE ENTIRE RECORDS BEFORE US THAT THE ISSUE IS IDENTICAL WE FIND NO REASON TO KEEP THE MAIN APPEALS PENDING UNNECESSARY AND HENCE WE PROPOSE TO DISPOSE OF THE SAME. FOLLOWING THE ORDE R PASSED BY THE HONBLE TRIBUNAL DATED 26.09.2018 IN ITA NO. 1062/RJT/2018 O N THE BASIS OF THE RATIO LAID DOWN BY THE HONBLE KARNATAKA HIGH COURT IN TH E CASE OF PR.CIT VS. INTERNATIONAL STONES INDIA PVT. LTD. (ITA NO. 564 OF 2016) DATED 12.06.2018 AS ALREADY REPRODUCED HEREINABOVE. WE DISPOSE OF ALL THE APPEALS BY ALLOWING THIS COMMON GROUND AGITATED BY THE ASSESSEE IN ALL THE T HREE YEARS WITH A DIRECTION UPON THE LD. AO TO GRANT DEDUCTION TO THE ASSESSEE O N SALES MADE TO OTHER EXPORT ORIENTED UNIT BY TREATING THEM AS DEEMED EXPORT. 9. IN THE RESULT, BOTH ALL THREE MISC. APPLICATIONS ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28 TH FEBRUARY, 2020 AT RAJKOT. SD/- SD/- (WASEEM AHMED ) ACCOUNTANT MEMBER ( MADHUMITA ROY ) JUDICIAL MEMBER RAJKOT; DATED 28/02/2020 TRUE COPY MA NO.68 TO 70/RJT/2019 5 ! ' #$% & %# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $%& '' , , / DR, ITAT, RAJKOT 6. &() * / GUARD FILE. ! ' ( / BY ORDER, )/(* + (DY./ASSTT.REGISTRAR) , / ITAT, RAJKOT 1. DATE OF DICTATION- 28/02/2020 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.02.20 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.-. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK.. /02/2020 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER