Income Tax Appellate Tribunal - Ahmedabad
Fine Line Circuits Company, Baroda vs Addl.Cit.,Circle-3,, Baroda on 15 December, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "C" BENCH
Before: Shri S. S. Godara, Judicial Member
And Shri Amarjit Singh, Accountant Member
ITA No. 1401 & 2865/Ahd/2013
Assessment Year 2009-10 & 2010-11
M/s. Fine Line Circuits The ACIT,
Compan y, Plot No. E-8, Circle-3,
GIDC, Manjusar, Savli, Vs Aayak ar Bhavan,
Dist: Baroda:391775 Race Course,
PAN: AAAFF6253A Vadodara-390007
(Appellant) (Respondent)
Revenue by: Shri Prasoon Kabra, Sr. D.R.
Assessee by: None
Date of hearing : 27-10-2016
Date of pronouncement : 15-12-2016
आदेश /ORDER
PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
These two assessee's appeals for A.Y. 2009-10 & 2010-11, arise from order of the CIT(A)-II, Baroda dated 05-02-2013 & 20-09- 2013 in appeal nos. CAB/II-326/11-12 & CAB/II-229/12-13, in proceedings under section 143(3) of the Income Tax Act, 1961; in short "the Act".
I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 2 M/s. Fine Line Circuits Company vs. ACIT ITA No. 1401/Ahd/2013
2. The assessee has following grounds of appeal:-
"1. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in not allowing deduction u/s. 1OB on turnover of Rs. 34,80,164/- being sales to SEZ/EOU.
2. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in holding that the Appellant is not engaged in the business of manufacture of CCGL and therefore the profits of the same are not eligible for deduction u/s. 1OB of the Act.
3. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in charging interest u/s. 234B and 234C of the Income Tax Act, 1961.
4. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in initiating penalty proceeding u/s. 271(1)(c) of the Income Tax Act, 1961."
3. In this case, return of income declaring income of Rs. 51,35,747/- was filed on 16/09/2009. The assessee is in the business of manufacturing of printed circuit boards. The assessee had claimed it as 100% export oriented unit (EOU). During the year, the assessee had claimed deduction u/s. 10B of the I.T. Act of Rs. 2,81,68,244/-
4. During the course of assessment proceedings u/s. 143(3) of the act, the assessing officer has observed that export turnover of the assessee considered for deduction u/s. 10B included Rs. I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 3 M/s. Fine Line Circuits Company vs. ACIT 2,81,68,244/- sales made to another SEZ/EOU.The assessee has treated it as deemed export made to the unit situated within India. The assessing officer asked he assessee to explain why the said sale of Rs. 2,81,68,244/- should not be excluded from the exports eligible for exemption u/s. 10B of the act. The assessee contended before the assessing officer that there was no such condition prescribed in this section requiring the assesee to satisfy realization of consideration of export in foreign currency only. Thereafter, the assessing officer has disallowed the claim of the assessee relating to sales made within India and sales consideration not received in convertible foreign exchange.
5. Aggrieved against the order of the assessing officer, the assessee filed appeal before the Ld. Commissioner of Income Tax(A). The Ld. Commissioner of Income Tax(A) has dismissed the appeal of the assessee stating that on the identical issue for Assessment Year 2007-08 to 2008-09, the Ld. Commissioner of Income Tax(A) upheld the action of the assessing officer in disallowing deduction u/s. 10B on the export of CCGL and on sale of SEZ/EOU. The decision of the Ld. Commissioner of Income Tax(A) is reproduced as under:-
"3.3. DECISION:
I have considered the submissions of the learned Authorized Representative and the order of the Assessing Officer. The facts of the case and the grounds of appeal are identical to those in A.Y.2007-08 and 2008-09. The matter has been analyzed in-depth, by the CIT(A)-II, Baroda, in the case of the assessee for A.Y. 2007- 08 and 2008-09. After considering all aspects and all contentions of the appellant, the CIT(A) upheld the action of the Assessing Officer I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 4 M/s. Fine Line Circuits Company vs. ACIT in disallowing the deduction u/s. 10B on the export of CCGL and on sale to SEZ/EOU. Since the facts of the case are the same and the appellant also is relying on his submissions filed for A.Y. 2007-08 and 2008-09 only and further since I agree with the findings of my predecessor, the disallowance of deduction u/s. 10B on export of CCGL and on sale to SEZ/EOU, is upheld. The grounds of appeal 1 & 2 are rejected."
6. During the course of appellate proceedings before us, no-one has appeared on behalf of the assessee. The Ld. counsel of the assessee has filed written submission stating that since the issue has been covered by the decision of the Hon'ble ITAT Co-ordinate Bench for Assessment Year 2007-08 vide ITAT No. 1267/Ahd/2011 decided against the assessee and requested to take a view accordingly if convenient. On the other hand, the Ld. D.R. relied on the order of Ld. Commissioner of Income Tax(A).
7. We have perused the submission of both the sides.We find that the assessee had made sale to another SEZ unit in India and the amount of sale consideration was also received in Indian rupees. We also noticed that the assessee had not brought convertible foreign exchange. The decision of the co-ordinate bench of ITAT, Ahmedabad in this case is reproduced as under:-
"1.3 Now before us an order of ITAT 'D' Bench Ahmedabad pronounced in the case of assessee, i.e., M/s. Fine Line Circuit's Company, Plot No. E-8, GIDC, Manjusar, Salvi, Baroda Vs. ACIT, Circle-3, Baroda, bearing ITA No.1144/Ahd/2008 for A.Y:2004-05, ITA No.1899/Ahd/2010 for A.Y:2005-06 and ITA No.3110/Ahd/2009 for A.Y:2006-07, dated 5th day of April, 2011 wherein an another order of the Tribunal was discussed by reproducing relevant paragraphs and the issue was decided in favour of the Revenue. A I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 5 M/s. Fine Line Circuits Company vs. ACIT portion of the relevant paragraphs which was reproduced in the said order is as follows:
"Thus it has to be seen that assessee is bringing foreign exchange into India as a result of its export. The argument of the assessee is that other concerns to whom assessee has sold its product in India are bringing convertible foreign exchange in India through export of their product contained in the containers manufactured by the assessee. Thus products of the assessee in fact are exported by the other concerns and convertible foreign exchanges are brought by them into India. We are unable to subscribe to this view. It is because phrase mentionedITANo.2273/A/12,2636/A/11,2274/A/12,1267/A/11& 2104/A/12 For A.Y. 2004-05, 05-06, 06-07, 07-08 & 08-09 - 3 - in sub-section (3) is "...are received in ..." or brought into India by the assessee in convertible foreign exchange..." Thus it is the assessee who has to bring convertible foreign exchange in India out of its own export. If other parties are bringing convertible foreign exchange in India then it will not be the fulfillment of the conditions imposed by sub-section (3). It is admitted position of facts that assessee is not in fact bringing convertible foreign exchange and entire of its products are sold in India in Indian rupees. Therefore, the assessee will not be entitled to exemption under section 10B. Accordingly this ground of assessee is rejected."
1.4 In the light of the view already taken in assessee's own case on identical facts in the past wherein it was held that the assessee had not brought convertible foreign exchange because the product was sold in Indian rupees, therefore, not entitled for exemption under Section 10B of the IT Act. Since a view has already been taken and there is no contrary material or decision placed before us from the side of the assessee, therefore, respectfully following the aforequoted precedent we hereby dismiss this ground of the Assessee. Ground no.1 is dismissed."
7.1 In view of the above stated facts and legal findings, we find that Ld. Commissioner of Income Tax(A) is justified in sustaining the disallowance made by the assessing officer.
I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 6 M/s. Fine Line Circuits Company vs. ACIT ITA No. 2865/Ahd/2013
8. The assessee has following grounds of appeal:-
"1. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in disallowing deduction u/s. 10B of the Act on sales of Rs. 2,13,73,473/- being sales made to SEZ/EOU units on the ground that the sales proceeds in respect thereof having been received in Indian Rupees.
2. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in restricting the claim of deduction u/s. 10B from Rs. 2,71,63,864/-to Rs. 2,25,65,485/-.
3. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in charging interest u/s. 234B of the Income Tax Act, 1961.
4. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in charging interest u/s. 234C of the Income Tax Act, 1961.
5. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in confirming the action of AO in initiating penalty proceeding u/s. 271(1)(c) of the Income Tax Act, 1961."
9. In this case, return of income declaring income of Rs. 60,83,540/- was filed on 25/09/2010. The assessee is in the business of manufacturing of printed circuit boards. The assessee had claimed it as 100% export oriented unit (EOU). During the year, the assessee had claimed deduction u/s. 10B of the I.T. Act of Rs. 2,71,63,864/-
10. During the course of assessment proceedings u/s. 143(3) of the act, the assessing officer has observed that export turnover of the I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 7 M/s. Fine Line Circuits Company vs. ACIT assessee considered for deduction u/s. 10B included Rs. 2,13,73,473/- sales made to another SEZ/EOU.The assessee has treated it as deemed export made to the unit situated within India. The assessing officer had asked he assessee to explain why the said sale of Rs. 2,13,73,473/- should not be excluded from the exports eligible for exemption u/s. 10B of the act. The assessee contended before the assessing officer that there was no such condition prescribed in this section requiring the assesee to satisfy realization of consideration of export in foreign currency only. Thereafter,the assessing officer has disallowed the claim of the assessee relating to sales made within India and sales consideration not relieved in convertible foreign exchange.
11. Aggrieved against the order of the assessing officer, the assessee filed appeal before the Ld. Commissioner of Income Tax(A). The Ld. Commissioner of Income Tax(A) has dismissed the appeal of the assessee stating that on the identical issue for Assessment Year 2007-08 to 2008-09, the Ld. Commissioner of Income Tax(A) upheld the action of the assessing officer in disallowing deduction u/s. 10B on the export of CCGL and on sale of SEZ/EOU. The decision of the Ld. Commissioner of Income Tax(A) is reproduced as under:-
"3.3. DECISION:
I have considered the submissions of the learned Authorized Representative and the order of the Assessing Officer. The facts of the case and the grounds of appeal are identical to those in A.Y.2007-08 and 2008-09. The matter has been analyzed in-depth, by the CIT(A)-II, Baroda, in the case of the assessee for A.Y. 2007- I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 8 M/s. Fine Line Circuits Company vs. ACIT 08 and 2008-09. After considering all aspects and all contentions of the appellant, the CIT(A) upheld the action of the Assessing Officer in disallowing the deduction u/s. 10B on the export of CCGL and on sale to SEZ/EOU. Since the facts of the case are the same and the appellant also is relying on his submissions filed for A.Y. 2007-08 and 2008-09 only and further since I agree with the findings of my predecessor, the disallowance of deduction u/s. 10B on export of CCGL and on sale to SEZ/EOU, is upheld. The grounds of appeal 1 & 2 are rejected."
12. During the course of appellate proceedings before us, no-one has appeared on behalf of the assessee. The Ld. counsel of the assessee has filed written submission stating that since the issue has been covered issue by the decision of the Hon'ble ITAT Co-ordinate Bench for Assessment Year 2007-08 vide ITAT No. 1267/Ahd/2011 decidedt against the assessee and requested to take a view accordingly if convenient. On the other hand, the Ld. D.R. relied on the order of Ld. Commissioner of Income Tax(A).
13. We have perused the submission of both the sides.We find that the assessee had made sale to another SEZ unit in India and the amount was also received in Indian rupees. We also noticed that the assessee had not brought convertible foreign exchange. The decision of the co-ordinate bench of ITAT, Ahmedabad in this case is reproduced as under:-
"1.3 Now before us an order of ITAT 'D' Bench Ahmedabad pronounced in the case of assessee, i.e., M/s. Fine Line Circuit's Company, Plot No. E-8, GIDC, Manjusar, Salvi, Baroda Vs. ACIT, Circle-3, Baroda, bearing ITA No.1144/Ahd/2008 for A.Y:2004-05, ITA No.1899/Ahd/2010 for A.Y:2005-06 and ITA No.3110/Ahd/2009 for A.Y:2006-07, dated 5th day of April, 2011 wherein an another order of the Tribunal was discussed by reproducing relevant I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 9 M/s. Fine Line Circuits Company vs. ACIT paragraphs and the issue was decided in favour of the Revenue. A portion of the relevant paragraphs which was reproduced in the said order is as follows:
"Thus it has to be seen that assessee is bringing foreign exchange into India as a result of its export. The argument of the assessee is that other concerns to whom assessee has sold its product in India are bringing convertible foreign exchange in India through export of their product contained in the containers manufactured by the assessee. Thus products of the assessee in fact are exported by the other concerns and convertible foreign exchanges are brought by them into India. We are unable to subscribe to this view. It is because phrase mentionedITANo.2273/A/12,2636/A/11,2274/A/12,1267/A/11& 2104/A/12 For A.Y. 2004-05, 05-06, 06-07, 07-08 & 08-09 - 3 - in sub-section (3) is "...are received in ..." or brought into India by the assessee in convertible foreign exchange..." Thus it is the assessee who has to bring convertible foreign exchange in India out of its own export. If other parties are bringing convertible foreign exchange in India then it will not be the fulfillment of the conditions imposed by sub-section (3). It is admitted position of facts that assessee is not in fact bringing convertible foreign exchange and entire of its products are sold in India in Indian rupees. Therefore, the assessee will not be entitled to exemption under section 10B. Accordingly this ground of assessee is rejected."
1.4 In the light of the view already taken in assessee's own case on identical facts in the past wherein it was held that the assessee had not brought convertible foreign exchange because the product was sold in Indian rupees, therefore, not entitled for exemption under Section 10B of the IT Act. Since a view has already been taken and there is no contrary material or decision placed before us from the side of the assessee, therefore, respectfully following the aforequoted precedent we hereby dismiss this ground of the Assessee. Ground no.1 is dismissed."
13.1 In view of the above stated facts and legal findings, we find that Ld. Commissioner of Income Tax(A) is justified in sustaining the disallowance made by the assessing officer.
I.T.A No. 1401 & 2865/Ahd/2013 A.Y. 2009-10 & 2010-11 Page No 10 M/s. Fine Line Circuits Company vs. ACIT
14. In the result, both the appeals of the assessee are dismissed.
Order pronounced in the open court on 15-12-2016 Sd/- Sd/-
(S.S. GODARA) (AMARJIT SINGH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad : Dated 15/12/2016
आदेश क त ल प अ े षत / Copy of Order Forwarded to:-
1. Assessee
2. Revenue
3. Concerned CIT
4. CIT (A)
5. DR, ITAT, Ahmedabad
6. Guard file.
By order/आदेश से,
उप/सहायक पंजीकार
आयकर अपील य अ धकरण,
अहमदाबाद