9911796707
TMI Blog2018 (7) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... 10A, section 10B and section 10BA of the Act on realization of export sale proceeds. The said provision is totally silent insofar as it relates to realization of export sale proceeds under section 10AA of the Act. However, in case of M/s. Dania Oro Jewellery Pvt. Ltd. [2018 (1) TMI 240 - ITAT MUMBAI] restored the issue to the Assessing Officer for fresh adjudication. Since, the aforesaid decision of the Co–ordinate Bench is on identical issue of deduction claimed under section 10AA of the Act, respectfully following the same, we restore the issue to the file of the Assessing Officer for fresh adjudication. Disallowance under section 40(a)(ia) - Held that:- the amount in dispute was paid during the relevant previous year. However, as held by the Hon'ble Supreme Court in Palam Gas Service (2017 (5) TMI 242 - SUPREME COURT), the provisions of section 40(a)(ia) of the Act covers not only the amounts which remained payable at the end of the year but also the amount which were paid during the relevant previous year without deduction of tax at source. In view of the aforesaid, we do not find merit in the ground raised, hence, it is dismissed. - ITA No. 5672/Mum./2016, ITA No. 5673/Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the following decisions: i) CIT v/s Motorola India Electronics Pvt. Ltd., [2014] 98 DTR 081; ii) Medusind Solutions India Pvt. Ltd. v/s CIT, 56 SOT 177; 4. Without prejudice to the aforesaid submissions, it was submitted that in case deduction under section 10AA of the Act is not allowed in respect of interest income, the related interest cost should be netted off against the interest income and the net interest income should be reduced from the profits of business for computing deduction under section 10AA of the Act. In support of such contention, the assessee relied upon the decision of the Hon'ble Supreme Court in ACG Associated Capsules Pvt. Ltd. v/s CIT, 67 DTR 205 (SC). Assessing Officer, however, did not find merit in the submissions of the assessee and held that interest income earned on fixed deposit having not been been derived from the export made by the assessee from its SEZ unit, cannot be included in the profit of business for computing deduction under section 10AA of the Act. The Assessing Officer also rejected assessee s claim that the interest income should be netted off against the interest income and only the net interest income should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) submitted, there is a basic difference between the provisions contained under section 10AA and section 10A of the Act. He submitted, while sub section (1) of section 10A of the Act speaks of deduction of profits and gains derived by an undertaking from the export of articles or things or computer software, etc., sub section (1) of section 10AA of the Act, which applies to newly established units in SEZ, speaks of deduction in respect of profits and gains derived from the export of articles or things or services, etc. The learned Departmental Representative submitted, provision of section 10AA of the Act is more restrictive and specific as it refers to profits derived from export and not of the undertaking. He submitted, the decisions relied upon by the assessee are in respect of provisions contained under section 10A / 10B of the Act, hence, will not apply to a case involving claim of deduction under section 10AA of the Act. 8. We have considered rival submissions and perused materials on record. We have also applied our mind to the decisions relied upon. From the facts and materials on record, prima facie, it appears that the fixed deposits from which the assessee earned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that out of the total export turnover of Rs. 172,35,58,101, an amount of Rs. 1,09,35,183, has not been brought into India. As observed by the Assessing Officer, the assessee itself submitted that while computing deduction under section 10AA of the Act the said amount has to be reduced from the export turnover. However, it was also submitted by the assessee that as and when the unrealized amount is realized, deduction under section 10AA of the Act should be amended and total income should be determined accordingly. The Assessing Officer referring to the Explanation 1 to section 10AA of the Act observed that export turnover means the consideration in respect of export received in or brought into India. Therefore, the unrealized export turnover cannot be considered for computing deduction under section 10AA of the Act. Further, he held that the deduction under section 10AA of the Act cannot be revised on realization of the export turnover. The assessee challenged the aforesaid decision of the Assessing Officer before the first appellate authority. 11. The learned Commissioner (Appeals) while concurring with the view of the Assessing Officer observed that the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 155(11A) of the Act permits amendment of deduction claimed under section 10A, section 10B and section 10BA of the Act on realization of export sale proceeds. The said provision is totally silent insofar as it relates to realization of export sale proceeds under section 10AA of the Act. However, in case of M/s. Dania Oro Jewellery Pvt. Ltd. (supra), the Co ordinate Bench following another decision of the Tribunal in M/s. Niru Jewels Pvt. Ltd. (supra) and the decision of the Hon'ble Jurisdictional High Court in Jemplus Jewellery India Ltd., 330 ITR 175 (Bom.) restored the issue to the Assessing Officer for fresh adjudication. Since, the aforesaid decision of the Co ordinate Bench is on identical issue of deduction claimed under section 10AA of the Act, respectfully following the same, we restore the issue to the file of the Assessing Officer for fresh adjudication keeping in view the ratio laid down in the decisions referred to above. This ground is allowed for statistical purposes. 16. In ground no.3, the assessee has challenged the disallowance of Rs. 16,18,327 under section 40(a)(ia) of the Act. 17. Brief facts are, during the assessment proceedings, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
