2016 (12) TMI 1552 - HC - Income Tax

Section 10B deduction availability - actual receipts by the assessee - Held that - This court is of the opinion that the ITAT s findings cannot be faulted. The submissions of the revenue with respect to Section 10B (3) in the context further is that the sale proceeds of articles of things or computer software export it out of India and received in or brought into India by the assessee into the converted foreign exchange the condition spelt out in Section 10B (3), cannot be limited or restricted to only actual receipts by the assessee. There can be basis where the assessee might export through a third party which might in the first instance received the foreign exchange and in turn transmit it. Rather than a per se rejection of such transaction what is essential for the AO in each case to decide whether the third party was beneficiary to the transaction and received any amount all out of such proceeds. Thus such as attachment order and exercise of banks lien etc. amount may not be actually received into the assessee s account or received by it at all. In such cases too, it cannot be claimed that unless the amounts actually are received by the assessee would not qualify for benefit under Section 10B. Whether unlike under Section 80HHC where the benefit of deduction is available even to a third party but one who facilitates the manufacturer by an exporter from which earnings are reported, (termed as supporting manufacturer ) Section 10B makes no similar provision? - Held that - Section 80HHC was undoubtedly brought at a prior point in time for the first time in 1984. The emphasis of Section 80HHC is the grant of qualify the deduction to business exporters of goods or merchandise. Section 10B so introduced at a later point in time i.e. in 2000 by Finance Act of 2000 with effect from 01.04.2001. Likewise the existing Section 10A was substituted with effect from 01.04.2001. The original provision of Section 10A was enacted in 1981. The commonality to substitute 10A and 10B is apparent by the fact that both refer to profits and gains derived by undertaking by export of articles or things or computer software for 10 consecutive years. Previous ruling of this court in CIT vs. Tei Technologies Pvt. Ltd. (2012 (9) TMI 47 - DELHI HIGH COURT)& CIT vs. Kei Industries Ltd. (2015 (3) TMI 618 - DELHI HIGH COURT) exphasized the distinction between Section 10A and 10B on the one hand and Section 80HHC on the other characterising the category of former exemption even though they are termed deductions and the latter i.e. Section 80HHC as a deduction. This reasoning has to be kept in mind even while rejecting the revenue s contention on this score.

Summary

Issues:
Question of law regarding export income reported by the assessee for AY 2008-2009 under Section 260A of the Income Tax Act.

Analysis:
1. The appellant reported export turnover and claimed deduction under Section 10B, but the AO determined that the appellant made only local sales to a sister concern. The AO held that Section 10B deduction is available to 100% export-oriented undertakings. The CIT (A) accepted the revenue's contentions and rejected the appellant's claim, emphasizing that export proceeds were not received by the appellant. The ITAT, however, accepted the appellant's appeal based on a ruling of the Karnataka High Court.

2. The counsel for the revenue argued that the ITAT erred in ignoring the statutory mandate of Section 10B, stressing that the exporter alone or a status holder qualifies for deduction under Section 10B. The counsel also emphasized that receipt of consideration and foreign exchange should be by the assessee. The court referred to a previous case involving domestic sales treated as deemed export, where it was concluded that Section 10B conditions should be construed liberally.

3. The court held that the ITAT's findings were correct, stating that the condition in Section 10B(3) regarding the receipt of export proceeds in foreign exchange should not be limited to actual receipts by the assessee. The court highlighted that circumstances beyond the assessee's control, such as bank liens, may affect the actual receipt of amounts by the assessee, but this should not disqualify the assessee from the benefit under Section 10B.

4. The court rejected the argument that Section 10B excludes amounts received by third parties or status holders, emphasizing the distinction between Section 10B and Section 80HHC. The court noted that Section 10B was introduced later and should be interpreted in conjunction with previous rulings distinguishing between exemptions and deductions.

5. The court concluded that no substantial question of law arises, and therefore, the appeal was dismissed.