Income Tax Appellate Tribunal - Rajkot
Assistant Commisioner Of Income Tax, ... vs Siyaram Metals Pvt. Ltd., Jamnagar on 28 February, 2020
आयकर अपील य अ धकरण, राजकोट यायपीठ, राजकोट ।
IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED HON'BLE ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, HON'BLE JUDICIAL MEMBER Misc. Application NO.68/RJT/2019 IN ITA.No.155/RJT/2011 नधा रण वष /Asstt.Year : 2003-04 Siyaram Metals Pvt. Ltd. The ACIT, Circle-2, Jamnagar Vs Jamnagar Misc. Application NO.69/RJT/2019 IN ITA.No.131/RJT/2012 नधा रण वष /Asstt.Year : 2004-05 Siyaram Metals Pvt. Ltd. The ACIT, Circle-2, Jamnagar Vs Jamnagar Misc. Application NO.70/RJT/2019 IN ITA.No.344/RJT/2013 नधा रण वष /Asstt.Year : 2005-06 Siyaram Metals Pvt. Ltd. The ACIT, Circle-2, Jamnagar Vs Jamnagar अपीलाथ / (Appellant) यथ / (Respondent) Assessee by : Shri M. J. Ranpura, AR Revenue by : Shri Sunil Mistry, Sr. DR ु वाई क तार ख/ Date सन of Hearing : 27/02/2020 घोषणा क तार ख / Date of Pronouncement: 28/02/2020 आदे श/O RDER PER BENCH:-
By the present three Misc. Applications, the assessee is seeking for recalling of against the common order dated 28.06.2019 passed by the Hon'ble Tribunal in ITA Nos. 155 & 292/Rjt/2011 for A.Y. 2003-04, ITA Nos. 131 & 359/Rjt/2012 for A.Y. 2004-05 and ITA Nos. 344 & 350/Rjt/2013 for A.Y. MA No.68 to 70/RJT/2019 2 2005-06. Since all the Miscellaneous Applications relate to the identical issue, these are heard analogously and are being disposed of by a common order.
2. M.A. No. 68/Rjt/2019 ITA No. 155/Rjt/2011 (A.Y. 2003-04) is taken as the lead case.
3. In the original appeal relating to this Miscellaneous Application the assessee challenged the action of the Ld. CIT(A) by raising the following grounds:-
"1.0 Ld. CIT Appeal erred in law as well as on fact to confirm the order of Ld. AO of not to consider genuine deemed export sales approved under the central government direction amounting to Rs. 5,81,82,059/- as permitted in chapter 6 & 8 of export import policy as export and as receipt of foreign exchange. Therefore, deemed export sales made to other EOU's instead of directly importing by such authorized importers may be treated as allowable export earning entitled on such sale as exempted profit u/s. 10B. 2.0 Based on above appellant request to please direct AO to enhance prorate rebate under section 10B-80IB."
4. While deciding the issue the Hon'ble Tribunal by and under its order dated 28.06.2019 passed the orders in the manners as follows:-
"In facts and circumstances of the case, we think it proper to set aside matter to the file of the Assessing Officer to see:
(1) The Export Oriented Unit through whom the export has been made by the assessee has fetched foreign exchange directly attributable to such export.
(2) The such export oriented unit through whom the assessee has made export as deemed export has also not claimed any deduction u/s. 10B of the Act. Because u/s. 10B of the Act the double deductions are not allowable."
5. It is the case of the applicant before us that prior to this order dated 28.06.2019 the Hon'ble Tribunal by and under its order dated 26.09.2018 in ITA No. 1062/Rjt/2010 for A.Y. 2002-03 and ITA No. 1072/Rjt/2010 for A.Y. 2002- 03 decided the issue in favour of the assessee in the following manner:-
"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:
MA No.68 to 70/RJT/2019 3 "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 Export' in the hands of the assessee undertaking also. If the Parliament intended to put any restrictive meaning for curtailing the said deduction, such words could be employed in sub-section(1) itself, which could have excluded 'Deemed Export' from the ambit and scope of word 'export' employed in subsection(1) of S.10B of the Act.
The Explanation defining 'Export Turnover' in both these provisions does not make any such distinction between the 'Direct Export' and 'Deemed Export'. 22. For a harmonious reading of these provisions of the Act which are undoubtedly beneficial provisions, the word 'export' read with the background of Exim Policy of Union of India would certainly include 'Deemed Export' also within the ambit and scope of the 'Export Turnover' as explained in Explanation-2 of sub-section (9A) of the said S.10B of the Act. 23. Therefore, both the contentions raised by the learned counsel for the appellant-Revenue to restrict the deduction in the hands of the respondent-assessee by excluding the 'Deemed Exports', does not have any merit and the said contention deserves to be rejected and the same is accordingly rejected."
8. Respectfully following judgments of Hon'ble Karnataka High Court, we allow this common ground raised by the assessee in all three years. The ld.AO shall grant deduction to the assessee on sales made to other EOUs by treating them as "deemed export"."
6. Though the issue as it appears from the order passed by the Hon'ble Tribunal dated 26.09.2018 has already been decided in favour assessee in assessee's own case, the same has not been taken into consideration by the Co- ordinate Bench while dealing the identical issue in ITA Nos. 155 & 292/Rjt/2011 for A.Y. 2003-04 in its order dated 28.06.2019, which is an error apparent on the face of the records and in thus required to be rectified as also submitted by the Ld. AR.
7. We have perused both the orders from which it appears that the direction passed by the Ld. Tribunal in its earlier dated 26.09.2018 in ITA No. MA No.68 to 70/RJT/2019 4 1062/Rjt/2010 for A.Y. 2002-03 and ITA No. 1072/Rjt/2010 for A.Y. 2002-03 following the judgment passed by the Hon'ble Karnata High Court in the case of Pr.CIT vs. International Stones India Pvt. Ltd. on the identical issue has not been followed proper perspective by the Hon'ble Tribunal while deciding the in ITA Nos. 155&292/Rjt/2011 for A.Y. 2002-03. Which is factually an error apparent on the face of the records and thus the same is required to be rectified. In that view of the matter we recall the order dated 28.06.2019 (in ITA No. 155&292/Rjt/2011) for A.Y. 2003-04. In the result, all the Miscellaneous Applications are relating to the identical issue are allowed.
ITA No. 155/Rjt/2011, 131/Rjt/2011 & 344/Rjt/2013:-8. As it appears from the entire records before us that the issue is identical we find no reason to keep the main appeals pending unnecessary and hence we propose to dispose of the same. Following the order passed by the Hon'ble Tribunal dated 26.09.2018 in ITA No. 1062/Rjt/2018 on the basis of the ratio laid down by the Hon'ble Karnataka High Court in the case of Pr.CIT vs. International Stones India Pvt. Ltd. (ITA No. 564 of 2016) dated 12.06.2018 as already reproduced hereinabove. We dispose of all the appeals by allowing this common ground agitated by the assessee in all the three years with a direction upon the Ld. AO to grant deduction to the assessee on sales made to other Export Oriented Unit by treating them as 'deemed export'.
9. In the result, both all three Misc. Applications are hereby allowed.
Order pronounced in the Court on 28th February, 2020 at Rajkot.
Sd/- Sd/-
(WASEEM AHMED) (MADHUMITA ROY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Rajkot; Dated 28/02/2020
TRUE COPY
MA No.68 to 70/RJT/2019
5
आदे श क" त$ल%प अ&े%षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु!त / Concerned CIT
4. आयकर आय! ु त(अपील) / The CIT(A)
5. $वभागीय 'त'न ध, आयकर अपील य अ धकरण, / DR, ITAT, Rajkot
6. गाड) फाईल / Guard file.
आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, / ITAT, Rajkot
1. Date of dictation- 28/02/2020
2. Date on which the typed draft is placed before the Dictating Member 28.02.20
3. Date on which the approved draft comes to the Sr.P.S./P.S.-. ...
4. Date on which the fair order is placed before the Dictating Member for Pronouncement ........
5. Date on which the file goes to the Bench Clerk........... /02/2020
6. Date on which the file goes to the Head Clerk..................................
7. The date on which the file goes to the Assistant Registrar for signature on the order..........................
8. Date of Despatch of the Order..................