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TMI Blog2023 (2) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the income while declining to grant relief in respect revised claims which would have resulted in benefit to the Appellant on account of reduction of taxable income. The approach adopted by the Assessing Officer and the CIT (A) cannot be countenanced given the facts and circumstances of the present case. Accordingly, we admit the revise claims made by the Appellant in respect of (a) deduction under Section 35AC (while simultaneously withdrawing deduction claimed under Section 80G of the Act), (b) reduction of book profits by adding the correct amount of provisions for current tax to the net profits as per Profit Loss Account and (c) the claim of set-off of brought forward losses and unabsorbed depreciation. It is not the case of Revenue that the facts relevant to the adjudication of the aforesaid claims are not on record. Therefore, the Assessing Officer is directed to adjust/recompute the taxable income of the Appellant after verification of the aforesaid revised claims made by the Appellant. Denial of deduction u/s 10AA - export proceeds not realized within the aforesaid period of 6 months - HELD THAT:- We find that the solitary issue raised stands decided in favour of Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ground 3: The Hon'ble CIT (A) erred in confirming the decision of Ld. A.O. of considering provision for current tax as Rs. 2,82,41,000 instead of Rs. 2,88,51,681 which was correct figure while computing book profits u/s 115JB of the Act. Ground 4: The Hon'ble CIT (A) erred in confirming the action of the Ld. A.O. of not granting set-off of brought forward losses and unabsorbed depreciation totaling to Rs. 5,92,38,205 inspite the assessee being eligible for set-off of these losses. 3. The relevant facts, as emanating from record, are that the Appellant, an Indian private limited company, engaged in the business of manufacturing and exporting jewellery, filed return of income for the Assessment Year 2016-17 on 30/11/2016 declaring total income of INR 1,24,54,960/-. The case of the Appellant was selected for scrutiny. During the assessment proceedings, the Appellant, vide letter dated 4/12/2018 filed revised computation of income making following disclosures/claims: (1) The Appellant offered disallowance of interest of INR 2,482/-under Section 201(1A)/206C(7) of the Act; (2) It was pointed out that the Appellant had claimed deduction under section 10 AA of the Act twice res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on account of change of circumstances. According to the CIT (A) the Appellant had failed to satisfy the aforesaid factors, and therefore, the CIT (A) confirmed the order passed by the Assessing Officer vide order dated 01/11/2022. 6. Now the Appellant is before us in appeal against the above order of CIT (A) on the grounds reproduced in paragraph 2 above. 7. We have heard both the sides and perused the material on record. The Hon ble Bombay High Court has, in the case of CIT Vs. Pruthvi Brokers and Shareholders Private Limited: [2019] 349 ITR 336 (Bom) cited by the Learned Authorised Representative of the Appellant, held that an assessee is entitled to raise additional Grounds not merely in terms of legal submissions but also additional claims not made in the return filed. Further, the appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstance or law, but also with additional grounds which were available when the return was filed. In other words, the jurisdiction of the appellate authorities to consider a fresh or new ground/claim is not restricted to cases where such a ground did not exist when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the ITO. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The AAC must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The AAC should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also. 7. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) takes too narrow a view of the powers of the Tribunal-vide, e.g., CIT v. Anand Prasad [1981] 128 ITR 388/ 5 Taxman 308 (Delhi), CIT v. Karamchand Premchand (P.) Ltd. [1969] 74 ITR 254 (Guj.) and CIT v. Cellulose Products of India Ltd. [1985] 151 ITR 499/[1984] 19 Taxman 278 (Guj.) (FB). Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant after verification of the aforesaid revised claims made by the Appellant. Accordingly, Ground Nos. 1 to 4 raised by the Appellant in the present appeal are allowed. 10. In the result, the present appeal preferred by the Assessee is allowed. ITA No. 3008/Mum/2022 11. The Appellant has raised the following grounds in appeal for the Assessment Year 2018-19. Ground No. 1: On the facts and circumstances of the case and in law, the Hon'ble CIT (A) erred in confirming the action of the Ld.AO by not considering export sale realized after limitation of time as export turnover and consequently computing deduction u/s. 10AA at Rs. 2,57,23,087 instead of deduction u/s. 10AA of Rs. 2,65,88,081 as per Form 56F. The appellant prays that export sale realized after limitation of time be considered as export turnover and deduction u/s. 10AA as per Form 56F be computed. The appellant craves, leave to add, amend, alter, omit any of the grounds of appeal before or during the hearing of the appeal, if so advised. 12. The relevant facts in brief are that the Appellant filed its original return of income for Assessment Year 2018-19 on 30/11/2018 declaring total income of INR 86,20,200/-after clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h makes applicable subsection 5 and 6 of section 10A to this section i.e. 10 AA of the act, and according to form No. 56F, the realization of export proceeds is required to be shown. In that form assessee has shown that full consideration in convertible foreign exchange for exports made by the undertaking was brought into in India within a period of 6 months from the end of the previous year. The auditor has also certified the above fact as correct. Therefore, the ld Assessing Officer considered the export turnover at Rs. 190912493/-instead of Rs. 265997897/-and computed the deduction at Rs. 42306994/. The ld DRP on objection by the assessee confirmed the action of ld Assessing Officer. Therefore, assessee is in appeal before us. 25. The ld AR reiterated the same argument as advanced before the lower authorities and ld DR vehemently relied upon the orders of lower authorities. 26. We have carefully considered the rival contentions. According to section 10 AA of the act the profits derived from the export of articles or things or services (including computer software) shall be the amount which bears to the profits of the business of the undertaking, being the Unit, the same proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and such sum has also been received in India on 04/02/2011 and 24/2/2011. The provisions of section 10AA does not provide any time-limit of bringing such consideration into India like section 10A(3) which provides for receipt of consideration or sale proceeds in India in convertible foreign exchange within a period of 6 months from the end of the previous year, or within such further period as the competent authority may allow in this behalf. Further the contention of the revenue that provision of sub-section (5) and (6) of section 10A shall apply by virtue of the provision of section 10AA(8) of the Act. The provision of section 10A(5) speaks about the audit of the accounts and submission of report of an accountant in specified Performa. In this case same has been complied with by the assessee. Further section 10A(6) speaks about the restrictions of other deduction during the holiday period, which is not the dispute in this case. In view of this it is apparent that there is no time-limit prescribed for bringing the consideration of export into India. Admittedly, the consideration has been received in India, albeit Subsequent to filing of the return by the assessee. However, mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal. 18. We have considered the rival submissions and perused the material on record. 19. We find that the solitary issue raised in the present appeal stands decided in favour of the Appellant/Assessee by the decision of Delhi bench of the Tribunal bench in the case of BT e-Serv (India) Private Limited (Supra) wherein it was held as under: 24. Ground Nos. 14 to 22 are with respect to disallowance of deduction of Rs. 16639234/-u/s 10AA of the Act on the basis that export proceeds have not been realized within a period of six months from the end of the previous year. Ld Assessing Officer was of the view that as the assessee is a unit established under SEZ, therefore, if the proceeds have not been received in convertible exchange on or before 30th September 2010 then, the deduction u/s 10AA cannot be granted. Assessee submitted that there is no specific provision u/s 10AA requiring the realization of export proceeds within a prescribed time limit. Further, assessee relied on the master circular on export of goods and services issued by the RBI under FEMA. The ld Assessing Officer rejected the contention of the assessee for the reason that according to section 10AA(8) which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export amount received by the assessee on 04/02/2011 and 24/2/2011. A sum of Rs. 27085404/-is unbilled revenue of the assessee. The unbilled revenue is like work in progress in case of ITES industries. The explanation 1 (ii) defines export means taking goods or providing services out of India from SEZ by land, sea, or by any other mode whether physical or otherwise. Regarding the unbilled revenue the assessee has not exported the goods and therefore such sum do not fall in the definition of export and therefore it cannot fall into the definition of export turnover. Hence, according to us the deduction under section 10 AA of the income tax act cannot be allowed on this sum as it does not qualify the definition of export and export turnover. Even otherwise assessee has not given any details of receipt of foreign exchange and therefore the consideration in respect of that is either received in or brought into India by the assessee. Hence, we confirm the finding of the lower authorities regarding disallowance of deduction under section 10 AA of the income tax act on this sum. With respect to the other sum of Rs. 4.80 crores The assessee has given foreign inward remittance certificates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer to allow deduction to the Appellant under Section 10AA of the Act by taking into account the export sales realized by the Appellant. Accordingly, the order passed by the Assessing Officer and the CIT (A) are set aside. Ground No. 1 raised in the appeal is allowed. In result the present appeal by the Assessee is allowed. ITA No. 3007/Mum/2022 21. The Appellant has raised the following grounds in appeal for the assessment year 2017-18. Ground No. 1: On the facts and circumstances of the case and in law, the Hon'ble CIT (A) erred in confirming the disallowance made by the Ld.AO by not considering export sale realized after limitation of time as export turnover and consequently restricting deduction u/s 10AA of the Act by Rs. 24,17,656 by computing deduction u/s 10AA at Rs. 2,04,51,697. The appellant prays that export sale realized after limitation of time be considered as export turnover and deduction u/s 10AA as claimed by the appellant be granted. The appellant craves, leave to add, amend, alter, omit any of the grounds of appeal before or during the hearing of the appeal, if so advised. 22. The relevant facts in brief are that the Appellant filed its original return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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