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2018 (10) TMI 1109 - AT - Income TaxDeduction u/s 10AA - whether or not trading activity as carried out by the assessee during impugned AY would constitute service in terms of Section 10AA so as to enable him to claim deduction under the said Section? - Held that - In M/S GITANJALI EXPORTS CORPORATION LIMITED VERSUS ADCIT-5 (1) , MUMBAI AND VICE-VERSA 2013 (5) TMI 922 - ITAT MUMBAI Tribunal has taken a consistent view that keeping in view the over-riding effect of the provisions of Section 51 of the SEZ Act, 2005, the term service for the purpose of Section 10AA, deriving its meaning from Rule 76 of the SEZ Rules 2006 includes trading activities if it relates to the import of the goods for the purposes of re-export. Nothing on record suggest that the above decisions have been reversed subsequently by any higher judicial authorities. Further, the revenue is unable to bring on record any contrary decisions. Therefore, respectfully following binding judicial pronouncements, we find no infirmity in the impugned order. Having held so, in principal while agreeing with the claim of the assessee u/s 10AA, we deem it fit to restore the matter back to the file of Ld. AO to examine and verify the financial results reflected by the assessee in Deepak Gems (SEZ) since the same was not delved into by Ld. AO on account of the fact that the assessee was not eligible to claim the deduction u/s 10AA. The Ld. AO is directed to verify the financial results of the assessee reflected in the aforesaid unit and if found satisfactory, grant deduction thereof as per assessee s claim.
Issues Involved:
1. Eligibility of the assessee to claim deduction under Section 10AA of the Income Tax Act, 1961 for trading activities. Issue-wise Detailed Analysis: 1. Eligibility for Deduction under Section 10AA: The primary issue in this case is whether the assessee's trading activities qualify for a deduction under Section 10AA of the Income Tax Act, 1961. The assessee, engaged in diamond trading, claimed a deduction for income earned from activities in a Special Economic Zone (SEZ). Facts and Arguments: - The assessee set up operations in an SEZ from 30/12/2011 and claimed a deduction under Section 10AA for the first time. The business involved importing diamonds for re-export, which the assessee argued fell under the definition of "Service" as per Section 10AA. - The Assessing Officer (AO) denied the deduction, arguing that the assessee's activities did not constitute manufacturing, producing articles, or providing services as defined by Section 10AA. The AO referenced the Finance Act, 2012, which defines "Service" as an activity carried out by one person for another for consideration. - The AO concluded that trading activities did not qualify for the deduction since they did not involve providing services in the manner defined by the Finance Act. CIT(A) Decision: - The CIT(A) sided with the assessee, noting that the SEZ Act's definition of "Service" includes trading activities. Section 2(1)(z) of the SEZ Act defines services to include trading, warehousing, research, and development services, among others. - The CIT(A) emphasized that the SEZ Act has an overriding effect over other laws, including the Income Tax Act, as per Section 51 of the SEZ Act. Consequently, the SEZ Act's definition of "Service" should prevail. - The CIT(A) also referenced several judicial pronouncements, including the ITAT Jaipur Bench's decision in Goenka Diamond and Jewellery Limited, which supported the view that trading activities in the nature of re-export qualify as services under Section 10AA. Judicial Precedents: - The CIT(A) and ITAT relied on several judicial precedents, including: - Gitanjali Export Corporation Limited vs. ADCIT (ITAT Mumbai) - Diamond 'R' US vs. CIT (ITAT Mumbai) - Goenka Diamond and Jewellery Limited (ITAT Jaipur) These decisions consistently held that trading activities involving the re-export of imported goods qualify as services under Section 10AA due to the overriding provisions of the SEZ Act. ITAT Decision: - The ITAT upheld the CIT(A)'s decision, agreeing that the SEZ Act's definition of "Service" includes trading activities for re-export. The ITAT noted that the SEZ Act has an overriding effect over the Income Tax Act and that trading activities in SEZs qualify for the deduction under Section 10AA. - The ITAT directed the AO to verify the financial results of the assessee's SEZ unit, Deepak Gems (SEZ), and grant the deduction if the financial results are satisfactory. Conclusion: The appeal was dismissed, and the ITAT upheld the CIT(A)'s decision, allowing the assessee's claim for deduction under Section 10AA for trading activities in the SEZ. The AO was directed to verify the financial results and grant the deduction accordingly.
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