NHAVA SHEVA INTERNAITONAL CONTAINER TERMINAL P. LTD, NAVI MUMBAI V. DCIT (OSD) 2(3), MUMBAI

MA 76/MUM/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1882 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 16-03-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANPREET SINGH DUGGAL
• Section: 80IB; 80IA; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUM BAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAVAN KUMAR G ADALE, JM M.A. NOS. 75/MUM/2021 (ARISING OUT OF ITA NOS.3364/MUM/2014) (ASSESSMENT YEAR: 2010-11) & M.A. NOS. 76/MUM/2021 (ARISING OUT OF ITA NOS.3908/MUM/2016) (ASSESSMENT YEAR: 2011-12) NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PRIVATE LIMITD LEVEL 1, DARABSHAW HOUSE N.M.MARG, BALLARD ESTATE, MUMBAI-400 038 VS. INCOME TAX OFFICER-2(2)(3) AAYKAR BHAWAN, M.K.ROAD MUMBAI-400020 PAN/GIR NO. AABCN0185H ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI NISHANT THAKKAR RESPONDENT BY : SHRI MANPREET SINGH DUGGAL DATE OF HEARING : 25.06.2021 DATE OF PRONOUNCEMENT : 29 .06.2021 PER SHAMIM YAHYA, A. M.: THESE MISCELLANEOUS APPLICATIONS ARISE OUT OF COMMO N ORDER OF THIS TRIBUNAL IN ITA NO.3364/MUM/2014 AND 3908/MUM/2016 VIDE COMMON ORDER DATED 03/02/2020. 2. ONE COMMON ISSUE RAISED IN THESE MISCELLANEOUS A PPLICATIONS IS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF TH IS TRIBUNAL WITH REFERENCE TO ADJUDICATION OF THIS ISSUE DEDUCTION U/S 80IA AND I N RESPECT OF INCOME IN NATURE OF FOREIGN EXCHANGE GAINS. 2 MA NOS.75,76/M/21 3. IT HAS BEEN SUBMITTED THAT ITAT IN ITS ORDER H AS NOTED THAT AS REGARDS THE ISSUE OF FOREIGN EXCHANGE FLUCTUATION INCOME, THE LD. COUNS EL OF THE ASSESSEE SUBMITTED THAT THE DETAILS WERE NOT AVAILABLE. REFERRING TO THE ABOVE, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE DETAILS WERE VERY MUCH AVAILABLE IN PAPER BOOK. FURTHER, ASSESSEE HAS SUBMITTED AN AFFIDAVIT FROM THE MANAGEMENT CANVASSING THAT TH E LD. SENIOR COUNSEL APPEARED DID NOT HAVE THE AUTHORITY TO GIVE ANY SUCH CONCESSION. THUS IT IS PLEADED TAT SINCE THE ITAT ORDER IS BASED UPON A WRONG CONCESSION BY ASSESSEE S COUNSEL THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. HENCE, AS SESSEE PLEADED THAT THE GROUND FILED BY THE ASSESSE RELATING TO ALLOWABILITY OF DEDUCTIO N U/S 80IA ON INCOME EARNED FROM EXCHANGE GAIN BE APPROPRIATELY DEALT WITH AND A S PEAKING ORDER BE PASSED. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION AND PERUSED THE RECORD. WE FIND THAT THE ITAT IN THIS ORDER WHILE ADJUDICATING THE ISSUE OF DEDUCTION U/S 80IA WITH REGARD TO FOREIGN EXCHANGE FLUCTUATION INCOME HAS OBSERVED AS UNDER:- AS REGARDS THE ISSUE OF DEDUCTION UNDER SECTION 80I A OF THE ACT ON FOREIGN EXCHANGE GAINS, WE NOTE THAT THE LEARNED CIT(A) FOR ASSESSMENT YEAR 2010-11 HAS DEALT WITH THE ISSUE AS UNDER:- AS REGARDS TO THE DEDUCTION CLAIMED U/S. 80IA ON FOREIGN EXCHANGE GAIN, IT WAS EXPLAINED THAT THE SAME HAS ARISEN FROM REINSTA TEMENT OF MANAGEMENT CONSULTANCY FEES PAYABLE TO DP WORLD FZE FOR THE SE RVICES RENDERED BY THEM TO THE COMPANY AND ALSO FROM REINSTATEMENT OF BALAN CE FOREIGN CURRENCY TERM LOAN WHICH WAS TAKEN IN AY 2006-07 FOR THE BUSINESS PURPOSES. EXCEPT FOR THIS, NO DETAILS REGARDING THE SAME AND HOW IT IS D ERIVED FROM BUSINESS OF THE ASSESSE COMPANY HAVE BEEN PRODUCED. ACCORDINGLY, IT IS NOT PROVED BY THE APPELLANT AS TO HOW THE INCOME OUT OF SUCH FOREIGN EXCHANGE GAIN IS DERIVED FROM ITS BUSINESS. FURTHER RELIANCE IS PLACE ON THE JUDGEMENT OF HON'BLE ITAT IN THE CASE OF QUALCONM INDIA 37 TAXMANN.COM 17 AND THE JUDGEMENT BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF SHAH ORIGI NALS 199 TAXMANN.COM 81. IN VIEW OF THE FACTS OF THE CASE. FOR ASSESSMENT YEAR 2011-12, THIS CLAIM WAS REJECTE D BY THE LEARNED CIT(A) BY REFERRING TO THE DECISION OF HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA (SUPRA) AND ALSO REFERRING TO THE DECISION OF HON'B LE APEX COURT IN THE CASE OF OF VS STERLING FOODS, 237 ITR 579 (SC) AND PANDIAN CHEMICALS LTD. VS CIT, 262 ITR 278 (SC). 3 MA NOS.75,76/M/21 8. AGAINST THE ABOVE, ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. THE LEARNED COUNS EL OF THE ASSESSEE REITERATED HIS CLAIM THAT THE ABOVE INCOME SHOULD Q UALIFY FOR DEDUCTION UNDER SECTION 80IB OF THE ACT. AS REGARDS THE ISSUE OF FO REIGN EXCHANGE FLUCTUATION INCOME, THE LEARNED COUNSEL OF ASSESSEE SUBMITTED T HAT THE DETAILS WERE NOT AVAILABLE. 9. UPON CAREFUL CONSIDERATION, WE FIND THAT THE LEA RNED CIT(A)'S FINDING IS COGENT THAT THESE RECEIPTS CANNOT BE SAID TO BE PRO FIT DERIVED FROM THE INDUSTRIAL UNDERTAKING. THEY ARE ADMITTEDLY BEYOND THE FIRST DEGREE AND THE DECISION OF HON'BLE APEX COURT IN LIBERTY INDIA (SU PRA) IS SQUARELY APPLICABLE. SINCE THIS ISSUE IS DECIDED ON THE BASIS OF APPLICA BLE HON'BLE SUPREME COURT DECISION, DEALING WITH OTHER DECISIONS IS NOT RELEV ANT. 'MOREOVER, AS REGARDS THE ISSUE OF FOREIGN EXCHANGE GAIN IS CONCERNED, TH E LEARNED CIT(A) HAS GIVEN A FINDING THAT NO DETAIL REGARDING THE SAME WAS FUR NISHED BEFORE HIM. BEFORE US ALSO, THE LEARNED COUNSEL OF THE ASSESSEE HAS SH OWN HIS INABILITY AND SUBMITTED THAT DETAILS ARE NOT AVAILABLE. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE OR DER OF LEARNED CIT(A). HENCE, WE UPHOLD THE SAME. 5. A PERUSAL OF THE ABOVE SHOWS THAT THE ITAT HAS DECIDE THE ISSUE BY AFFIRMING THE LD.CIT(A)S, FINDING THAT THESE RECEIPTS CANNOT BE SAID TO BE PROFIT DERIVED FROM THE INDUSTRIAL UNDERTAKING THAT THEY ARE ADMITTEDLY BEY OND THE FIRST DEGREE AND THE DECISION OF HONBLE APEX COURT IN LIBERTY INDIA (SUPRA) IS SQUA RELY APPLICABLE. THAT SINCE, THIS ISSUE IS DECIDED ON THE BASIS OF APPLICABLE HONBLE SUPR EME COURT DECISION DEALING WITH OTHER DECISIONS IS NOT RELEVANT. 6. THUS, IT IS EVIDENT THAT ITAT HAS DECIDED THE ISSUE BY UPHOLDING THE LD.CIT(A)S ORDER THAT THE CONCERNED RECEIPT CANNOT BE SAID TO BE PROFIT DERIVED FROM THE INDUSTRIAL UNDERTAKING, AS IT IS ADMITTEDLY BEYOND THE FIRST D EGREE AND THE DECISION OF HONBLE SUPREME COURT IN LIBERTY INDIA (SUPRA) IS SQUARELY APPLICABLE. 7. NOW, WE NOTE THAT ASSESEE HAS PICKED UP LINES F ROM THE SAID ORDER AND CLAIMS THAT THE SAID ORDER HAS BEEN PASSED UPON A CONCESSION OF THE ASSESSEES COUNSEL (IN THIS CASE SENIOR COUNSEL SHRI GIRISH DAVE), WHO HAD NO AUTHOR ITY. WE NOTE THAT AS EVIDENT ABOVE, THIS ORDER WAS NOT AT ALL PASSED ON THE BASIS OF AN Y CONCESSION, BUT ON THE MERITS AND LEGAL 4 MA NOS.75,76/M/21 PRINCIPLES. THE ASSESSEE ACTUALLY WANTS A REVIEW OF THE ORDER BY ASKING THAT THE ISSUE BE APPROPRIATELY DEALT WITH AND A SPEAKING ORDER BE P ASSED. IN OUR CONSIDERED OPINION, THE ASSESSEES PLEA DOES NOT COME UNDER THE REALM OF MI STAKE APPARENT FROM RECORD AS PER SECTION 254(2) OF THE I.T.ACT,1961. IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT FROM THE RECO RD IN THE ORDER OF THE TRIBUNAL WITH REGARD TO THIS ISSUE. 8. ANOTHER ISSUE RAISED IN M.A.NO.76/MUM/2021 IS THAT THERE WAS A CLAIM OF DEDUCTION U/S 80IA IN RESPECT OF INCOME FROM SERVED FROM INDIA SCRIPT(SFIS) RS.4,90,000/-. IT HAS FURTHER BEEN CLAIMED THAT IT AT ORDER HAS NOT ADJUDICATED THIS ISSUE OF CLAIM OF 80IA AND IT HAS BEEN PLEADED THAT THIS ISSUE MAY BE RECALLED FOR ADJUDICATION. 9. UPON CAREFUL PERUSAL OF THE ITAT ORDER, WE AGR EE THAT AFORESAID ISSUE WAS NOT ADJUDICATED. HENCE, THERE IS A MISTAKE APPARENT FRO M THE RECORD IN THE ORDER OF THE TRIBUNAL FOR THIS ISSUE. HENCE, ITA NO. 76/MUM/202 1 TO BE RECALLED ONLY TO CONSIDER THIS ISSUE. 10. IN THE RESULT, M.A.NO.75/MUM/2021 IS DISMISSE D AND M.A.NO. 76/MUM/2021 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 .06.2021 SD/- SD /- (PAVAN KUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 29 .06.2021 THIRUMALESH SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 5 MA NOS.75,76/M/21 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI