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TMI Blog2020 (5) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... e hands of the assessee undertaking also. It is evident that the appellant is entitled to benefit of deduction under Section 10B of the Act in respect of export made to third parties and inter unit transfers. So far as submission made by learned counsel for the revenue that the matter requires factual adjudication and therefore, should be remitted is concerned, suffice it to say that there were in all approximately 40 parties with whom the appellant had entered into 398 transactions. The report of an accountant which is required to be furnished by the assessee along with the return of income, under sub-section (5) of section 10B shall be in Form No. 56G. The aforesaid report has been furnished by the appellants and it is not the case of the revenue the appellants have not furnished the aforesaid report. Besides this, it is pertinent to mention here that the question of duplications in the fact situation of the case does not arise as each person can claim only on the value addition by him and the presumption that there can be duplication is contrary to the principle of computation of the income under the Act. - I.T.A. NO.28/2011 C/W I.T.A. NO.29/2011, I.T.A. NO.108/2013 I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income of the appellant was selected for scrutiny and notices under Section143(2) and 142(1) of the Act were issued to the appellant. The Assessing Officer allowed the deduction under Section 10B of the Act only to the extent of direct export made by the appellant and disallowed the claim for deduction under Section 10B of the Act in respect of the sales made through third parties i.e., export houses and inter unit transfers. The Assessing Officer determined the income of the appellant as ₹ 1,09,72,680/- as against the income declared by the appellant of ₹ 1,88,920/- and passed an order under Section 143(3) of the Act. The Assessing Officer restricted the claim under Section 10B of the Act to ₹ 80,30,476/- as against ₹ 1,88,14,242/- claimed by the appellant. Being aggrieved, the appellant preferred an appeal before Commissioner of Income Tax (Appeals) who by an order dated 28.08.2009 dismissed the claim of the appellant. The appellant thereafter approached the Income Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal' for short). The Tribunal by placing reliance in case of TATA ELEXI LTD. VS. ACIT, 15 TTJ 423 partly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under Section 10B of the Act in respect of sum of ₹ 2,01,44,161/-. The assessing officer passed an order under Section 143(3) of the Act on 28.12.2010 and determined the total income of the appellant ₹ 96,48,260/- as against the income declared by the appellant of ₹ 3,35,997/-. The assessing officer restricted the claim of deduction under Section 10B to ₹ 1,08,31,895/- as against claim of ₹ 2,01,44,161/- claimed by the appellant. Being aggrieved by the order of the assessing officer, the appellant filed an appeal before the Commissioner of Income Tax (Appeals) who by an order dated 10.01.2012 partly allowed the appeal. Thereafter, the appellant approached the Tribunal by filing an appeal. The Tribunal by an order dated 09.11.2012 dismissed the appeal filed by the appellant. ITA No.540/2013: 7. The appellant field the return of income for the assessment year 20009-10 on 30.09.2008 and declared total income of ₹ 5,87,630/- after claiming deduction under Section 10B of the Act in respect of sum of ₹ 1,39,39,292/-. The assessing officer passed an order under Section 143(3) of the Act on 28.12.2010 and determined the total inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fulfill the condition of eligibility under Section 10A of the Act. It is further submitted that in the cases, on which the reliance has been placed there was no factual dispute. It is further submitted that a trader may obtain the material from the appellant and may not export it at all and the aforesaid aspects of the matter therefore requires factual adjudication. It is urged that the matter be remitted for adjudication of the factual aspects. 11. We have considered the submissions made on both the sides and have perused the record. Section 10A of the Act is relevant for the purpose of controversy involved in this batch of appeals is reproduced below for the facility of reference: 10A. (1) Subject to the provisions of this section, a deduction of such profits and gains as are derived by an undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce such articles or things or computer software, as the case may be, shall be allowed from the total income of the assessee : Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the profit and loss account of the previous year in respect of which the deduction is to be allowed and credited to a reserve account (to be called the Special Economic Zone Re-investment Allowance Reserve Account ) to be created and utilised for the purposes of the business of the assessee in the manner laid down in sub-section (1B) : Provided that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sub-section (1) of section 139. (1B) The deduction under clause (ii) of sub-section (1A) shall be allowed only if the following conditions are fulfilled, namely:- (a) the amount credited to the Special Economic Zone Re-investment Allowance Reserve Account is to be utilised- (i) for the purposes of acquiring new machinery or plant which is first put to use before the expiry of a period of three years next following the previous year in which the reserve was created; and (ii) until the acquisition of new machinery or plant as aforesaid, for the purposes of the business of the undertaking other than for distribution by way of dividends or profits or for remitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (iii) of this sub-section as they apply for the purposes of clause (ii) of that sub-section. 12. Thus, from perusal of Section 10A of the Act, it is evident that the intention of the legislature is to encourage establishment of export oriented industries with the object of receiving convertible foreign exchange. In order to claim deduction under Section 10A of the Act, the conditions laid down under Section 10A(2) have to be complied with. It is pertinent to mention here that in INTERNATIONAL STONES INDIA P. LTD., supra, a division bench of this court has held that a narrow and pedantic approach cannot be applied in construing the words by an undertaking and restricting the benefit under Section 10B of the Act only in respect of direct export of such goods manufactured by such units. The deemed export by the assessee undertaking even through third party who has exported such goods to foreign country and has fetched foreign currency for India still remains a deemed export in the hands of the assessee undertaking also. The aforesaid decision was proved by another division bench of this court in the case of METAL CLOSURES STEEL LTD., supra, which has been affirmed by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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