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TMI Blog2018 (9) TMI 1859X X X X Extracts X X X X X X X X Extracts X X X X ..... ring this period of nine years by the AO for collecting any other conclusive material. The DR was unable to supply any other information. Therefore, we are of the view that a roving inquiry cannot be allowed in the affairs of the assessee endlessly. It was for the Revenue to bring concrete material on the record on which any liability can be fastened upon the assessee. The Revenue failed to bring any evidence. We could appreciate the request of the ld.CIT-DR for remitting the file to the AO if after the order of the ld.CIT(A) in the year 2010 the Revenue was able to lay its hand on any material which could be produced before the Tribunal by way of additional evidence. It appears that proceedings remained dormant even after the order of the CIT(A) when additions have been deleted. No efforts have been made to collect any further information for justifying the challenge to the order of the CIT(A). In such situation, we cannot remit the issue to the file of the AO for re-investigation. We do not find any merit in these grounds of appeal. They are rejected. Production or manufacturing - segregation of scrap from mixed metal scrap - deduction u/s 10B and/or section 80I - HELD THAT:- As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the AO for re-adjudication. During the pendency of proceedings before the AO, investigation was carried by Central Economic Intelligence Bureau and Central Excise Department. The DRI authorities had found case of under valuation of import and payment of balance money to the foreign exports through non-banking channels. Thus, the AO has recorded reason again and issued notice under section 148 of the Act on 25.3.2009. The ld.AO thereafter passed assessment order on 31.12.2009 under section 143(3) r.w.s. 147 and 254 of the Act. 4. As far the issue agitated by the assessee in these three years is concerned, it relates to denial of deduction on sale made by the assessee to other export oriented units. The assessee had made sales to certain export oriented units situated in the domestic area, though these were also hundred percent export oriented units. The sales made to these units were not considered by the AO as export of goods. On the other hand, the case of the assessee is that these sales be construed as deemed export and deduction under section 10IB ought to be granted. The ld.CIT(A) has relied upon order of the ITAT passed in the case of Tata Elexi Ltd. Vs. ACIT, 115 TTJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Exim Policy was to fetch foreign currency against such exports and in view of the fact that export was so made by another STP Unit (TIIPL), to whom the goods in question were sold by the assessee-M/s. Tata Elxsi Ltd., the foreign currency was received and shared by both the STP Units, therefore, the conditions of S.10A were satisfied and the assessee - M/s. Tata Elxsi Ltd., was entitled to deduction u/s.10A of the Act. 7. After taking note of the judgment in the case of Tata Elexi (supra), Hon'ble Court has appreciated other issues also, and ultimately held that sales made to other EOU would be considered to be in the ambit of "deemed export". Conclusion made by the Hon'ble Court reads as under: "21. As held by the Division Bench of this Court in M/s. Tata Elxsi's Ltd. case, the purpose of giving these deductions in these special provisions is to encourage exports and fetch foreign currency in terms of Exim Policy propounded and announced by the Union of India. The 'Deemed Export' by the assessee Undertaking even through a third party who has exported such goods to a Foreign country and has fetched Foreign Currency for India, still remains a 'Deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of show cause notice made addition on account of suppression of sales as well as under valuation of closing stock. 12. On appeal, the ld.CIT(A) has deleted this addition by recording the following finding: "11. I have carefully considered the issue and find that all these additions and adjustments have been made by the AO, which are based on the enquiries by the Directorate of Revenue Intelligence and the order of Customs & Central Excise, under which these findings were given. Perusal of the order of Central Excise shows that the appellant had raised various objections during the course of proceedings, which not taken care of. Even before the AO, the appellant wanted to verify the documents, on which the additions were being based. The appellant also wanted an opportunity of cross examination, but the same was not allowed by the AO, because as per him this was a time barring case and the order was to be framed within time. It is noticed that the assessment was reopened on 25/03/2009 and order of Commissioner of Central Excise was passed on 31/03/09. In such a situation, the AO had ample time to get the documents verified and also allow proper opportunity to the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the addition is being made on basis of a show cause notice issued by the Central Excise to the assessee as well as on the basis of material transmitted by the Central Excise. A large number of assessees viz. Meridian Impex, Ramgopal Maheshwari and assessee had challenged the issue of show cuase notice by central excise authorities before the Customs & Service Tax Appellate Tribunal (CESAT). The Tribunal has decided this issue in favour of the assessee vide order dated 12.8.2009. According to the Tribunal no opportunities were given to the assessee for refuting the allegations made against them. Therefore, the Tribunal has remanded the issue to the Central Excise authorities. He placed on record copy of the Tribunal's order and submitted that there is no material with the Revenue authorities to say that the assessee was indulged in under invoicing of imports. On the other hand, the ld.DR contended that CIT-DR had filed written submission vide order dated 17.1.2016. In this submission, the ld.CIT-DR has contended that since the CESAT has set aside the issue to the file of Central Excise authorities, thus, the same may be set aside in the present proceedings. In rebuttal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07 and 2007-08 i.e. ground no.1 and 2 in the Asstt.Year 2006-07 and ground nos.1, 2 and 3 in the Asstt.Year 2007-08. 16. Common issue according to the Revenue is that the process employed by the assessee for segregation of scrap from mixed metal scrap did not amount to production or manufacturing of any article within the meaning of section 10B and/or section 80IB of the Income Tax Act, 1961, and therefore, does not entitle for deduction under these sections. Thus the issue is, whether deduction under sections 10B/ 80IB is admissible or not to the assessee, because according to the understanding of the Revenue, the assessee was not "manufacturing" article or things which is one of the mandatory conditions for claiming deduction under these sections. 17. The ld.counsel for the assessee at the very outset submitted that the ld.CIT(A) has allowed the deduction to the assessee by following the order of the ITAT passed in ITA No.305, 376, 306, 377, 523 & 528 in assessee's own case for the Asstt.Years 2002-03 to 2004-05. He further pointed out that the issue travelled to the Hon'ble Gujarat High Court at the instance of the Revenue, and Hon'ble Court has upheld the stand of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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