Income Tax Appellate Tribunal - Hyderabad
Tulip Granites Pvt.Ltd.,, Hyderabad vs Assessee on 6 November, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'A', HYDERABAD
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER and
SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER
I.T.A. No. 502/Hyd/2012 - A.Y. 2008-09
M/s. Tulip Granites Pvt. Ltd. Vs. The Asst. CIT
Hyderabad Circle-2(3)
PAN: AABCT7314E Hyderabad
Appellant Respondent
Appellant by: Sri T. Chaitanya Kumar
Respondent by: Smt. Kamal Jogpal
Date of hearing: 06.11.2012
Date of pronouncement: 06.11.2012
ORDER
PER CHANDRA POOJARI, AM:
This appeal by the assessee is directed against the order of the CIT(A)-III, Hyderabad dated 14th March, 2012 for A.Y. 2008-09.
2. The assessee raised the following effective ground of appeal:
"The learned CIT(A) erred in holding that the appellant herein is not eligible for deduction u/s. 10B of the IT Act in respect of all the exports made by it. The learned CIT(A) ought to have directed the Assessing Officer to grant entire exemption u/s. 10B claimed of Rs. 1,35,34,288 instead of confirming the order of the Assessing Officer limiting the exemption to only Rs. 14,02,852."
3. After hearing both the parties we are of the opinion that same issue came for consideration before this Tribunal in assessee's own case in A.Ys. 2006-07 and 2007-08 in ITA Nos. 238 and 239/Hyd/2009, respectively and the Tribunal vide order dated 21st April, 2011 decided the issue against the assessee by holding as follows:
2 I.T.A. No. 502/Hyd/2012M/s. Tulip Granites Pvt. Ltd.
====================== "7. We have heard booth the parties and perused the materials available on record. The Learned Authorized Representative placed the same argument what he has made before the CIT(A).
The Learned Authorized Representative has also drew our attention to the copies of the Invoices for sale of granite and also disclaimer certificate issued by various parties that they have not claimed deduction u/s 10B of the IT Act on impugned exports. We have carefully gone through the Paper Book submitted by the assessee. After going through the documents cited before us, we are not convinced about the claim of the assessee The main contention of the assessee counsel before us is that even the deemed export, though the goods is neither exported by the assessee nor the payment for such supplies received in convertible foreign exchange, the assessee is eligible for benefits u/s 10B of the IT Act. We have gone through the entire documents filed by the assessee before us, we are not convinced about the claim of the assessee. First of all, the word 'export' is not defined in section 10B of the IT Ac or under Section 2 of the IT Act. Then, we have to rely on only the provisions u/s 80HHC wherein as explanation to sub section (4C) of 80HHC of the UT Act 1961, the word 'export' and the 'export turnover' which has been defined as follows:
Explanation to Section 80HHC (4C):
a) "convertible foreign exchange' means foreign exchange which is for the time being treated by the Reserve Bank of India as convertible foreign exchange for the purposes of the Foreign Exchange Regulation Act, 1973 (46 of 1973), and any rules made there under.
(aa) "export out of India" shall not include any transaction by way of sale or otherwise", in a shop, emporium or any other establishment situated in India, not involving clearance at any customs station as defined in the Customs Act, 1962 (52 of 1962).
(b) 'export turnover' means the sale proceeds, (received in, or brought into, India) by assessee in convertible foreign exchange (in accordance with clause (a) of sub section (2) of any goods or merchandise to which this section applies and which are exported out of India, but does not include freight or insurance attributable to the transport of the goods or merchandise beyond the customs station as defined in the Customs Act, 1962 (52 of 1962).
8. In our opinion, in view of the above provisions of the IT Act, deemed export is not recognized by the provisions of the IT Act. Even otherwise, as seen from the facts of the case, it is an admitted 3 I.T.A. No. 502/Hyd/2012 M/s. Tulip Granites Pvt. Ltd.
====================== fact that the assessee is not the exporter of the goods. The assessee delivered the goods to the buyer in India only. Therefore, it is not the case that the assessee had sold the goods to other EOU against relevant declaration in Form CT 3, so as to consider the transaction as an export. In view of this fact, we do not find any merit in the contention that there was a case of sale from one EOU to another. Therefore, for the mere fact that there was movement of goods from one place to another with in India, it cannot be taken to consider that there was an 'Export'. In order to claim deduction u/s 10B, it must be proved by the assessee that such sale transaction must involve clearance at any Customs station as defined in the Customs Act. Otherwise, there was possibility that goods after the purchase may not be exported at all and yet the benefit may be claimed. Since in the present case, the transaction involves no clearance at the Customs station, it cannot be treated as export out of India. In the present case there is no evidence to show that the goods moved out of India so as to fall within the definition of 'Exports'. Further, delivering of the goods to local person cannot be considered as export. In our opinion, the CIT(A) considered the all relevant facts of the case and not considered any irrelevant material and the conclusion arrived by him is not perverse and is based on the facts of the case. The order of the CIT(A) need not be scrutinized word by word merely to find out whether all the facts have been set out by him in detail or not. The reading of the CIT(A) shows that he has taken into account the relevant facts of the case and came to right conclusion. We cannot find any infirmity in his order. Thus, the ground raised by the assessee is rejected.
9. Since we have held that there was no valid export operations in this case, the other grounds raised by the assessee has become infructuous and the same are dismissed as infructuous."
4. Respectfully following the above order of the Tribunal, we are inclined to dismiss the ground raised by the assessee.
5. In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 6th November, 2012.
Sd/- Sd/-
(ASHA VIJAYARAGHAVAN) (CHANDRA POOJARI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, dated the 6th November, 2012
4 I.T.A. No. 502/Hyd/2012
M/s. Tulip Granites Pvt. Ltd.
======================
Copy forwarded to:
1. M/s. Tulip Granites Pvt. Ltd., c/o. Sri S. Rama Rao, Advocate, Flat No. 101, Shriya's Elegance, St. No. 9, Himayathnagar, Hyderabad-500 029.
2. The Asst. CIT, Circle-2(3), Hyderabad.
3. The CIT-III, Hyderabad.
4. The CIT-II, Hyderabad.
5. The DR - A Bench, ITAT, Hyderabad.
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