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TMI Blog2015 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was provided by the authorized dealer i.e., HDFC Bank that the realisation and repatriation of the remittances of ₹ 15 crores was permitted by RBI under notification No.FEMA/25/2000-RB dated 3.5.2000 to be brought into India within 12 months from the date of export. The proceeds have been brought into India within extended time stipulated by RBI and hence, the issue is squarely covered by the decision of HCL EAI Services Ltd. vs. DCIT [2013 (11) TMI 772 - ITAT BANGALORE]. Further, as seen from the record the assessee has received the amount within the permitted period by the competent authority. Accordingly, the Order of Assessing Officer is not prejudicial to the interests of Revenue nor is erroneous. Therefore, the opinion exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. Whether on facts, misconstruction of order of Commissioner by assessee and not filing an appeal against it within prescribed time was wrong but same could not be considered to be mala fide or with any ulterior purpose. Held, yes, Whether, therefore, a case for condonation of delay in filing appeal before Tribunal was made out. Held yes . 2.1. Respectfully following the decision of the Coordinate Bench (supra), we condone the delay in filing the present appeal and proceed to decide the matter on merits. 3. Brief facts are that the assessee has filed nil return of income for A.Y. 2006-07 on 28.11.2006 admitting total income of ₹ 5,50,48,490 after claiming deduction u/s. 10A of the Income-tax Act, 1961 at ₹ 23,14,78,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived within 12 months from the date of export. 6. On appeal the CIT perused the Circular No. 25 of Reserve Bank of India dated 1.11.2004. He observed that this circular was issued under Foreign Exchange Management Act (FEMA). The relevant portion from the circular is reproduced as under: Attention of Authorized Dealer (AD) banks is invited to the proviso 3 of sub regulation (1) of Regulation 9 of Notification Number FEMA 23/2000-RB dated May 3, 2000 in terms of which the Reserve Bank has been empowered to extend the period for realization and repatriation of export proceeds to India beyond six months. 7. The CIT held that, no doubt, the Reserve Bank of India is the competent authority for relaxing the period of six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the assessee company did not produce the permission from the competent authority i.e., RBI for bringing the foreign exchange into India beyond 6 months from the date of export but within 12 months. 3. The Ld. CIT ought to have appreciated that the assessee company had received the sale proceeds within 12 months from the date of export as specified in Circular No 25 of RBI dated 1.11.2004 which clearly states that Export Oriented Units (EOU's) will be allowed to realise and repatriate the full value of export proceeds within a period of twelve months from the date of export. 4. The Ld. CIT erred in observing that RBI is the competent authority for relaxing the period of 6 months under the provisions of the IT Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count with a bank outside India (Commerce Bank, New Jersey, USA) which was opened with the approval of the Reserve Bank of India and the amount received was USD 43,96,652/- or ₹ 19,39,03,197/- as mentioned hereinabove. From this an amount of USD 27,99,975/- was transferred to HDFC Bank on 3rd January, 2007. The assessee did not take into account the fact that receipt of the proceeds in a separate account outside India would amount to a constructive receipt of export proceeds in India. The assessee was under the wrong impression that only if the proceeds were brought into India within 6 months from the end of the financial year or the extended period of time which is 12 months, it would be eligible for exemption u/s. 10A. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 12 months from the date of exports. Our attention was drawn to the provisions of section 10A(3) of the Act whereby RBI is a competent authority to prescribe the period within which the sale proceeds from export are to be brought into India. In view of the above, it was submitted that the AO should be directed to add the sum of foreign exchange brought into India by the assessee within the extended period of 12 months permitted by the RBI Circular [Ref: RBI/2004-05/264 A.P. (DIR Series) Circular No. 25 dated November 1, 2004. 36. We have considered the submissions of the ld. Counsel for the assessee and we find that in the light of the RBI Circular and the provisions of section 10A(3) of the Act, the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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