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M/s Diamonds 'R' US Versus Commissioner of Income Tax, Mumbai And Vica-Versa

2015 (12) TMI 1022 - ITAT MUMBAI

Benefit of deduction u/s 10AA - Held that:- Trading done by the assessee is a service and, therefore, deduction under Section 10AA is allowable. We further noted that on similar facts in case of Goenka Diamonds and Jewellery Limited (2012 (3) TMI 258 - ITAT JAIPUR), the Jaipur Bench of the Tribunal has discussed the issue in detail. The provisions of Section 51 of SEZ Act were also considered. The decision of the Hon'ble Supreme Court in the case of Tax Recovery Officer Vs. Custodian Appointed U .....

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uing in Section 10AA by virtue of Section 51 of the SEZ Act. The assessee engaged in trading in nature of re-export of imported goods and for the same the assessee was entitled deduction under Section 10AA of the Act. - Decided in favour of assessee. - ITA No. 2793/Mum/2012, CO No. 276/Mum/2014 - Dated:- 30-10-2015 - Shailendra Kumar Yadav, JM And Rajesh Kumar, AM For the Appellant : Shri Anuj Kisnadwala For the Respondent : Shri A K Srivastava ORDER Per Shailendra Kumar Yadav, JM These are cros .....

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r to be erroneous and also prejudicial to the interests of the revenue. 3(a) On the facts and in the circumstances of the case and in law, the Id. CIT has erred in holding that the Assessing Officer has allowed the claim of the appellant for deduction u/s.10AA without carrying proper enquiry. 3(b) On the facts and in the circumstances of the case and in law, the Id. CIT has erred in holding that the Assessing officer has allowed the claim of the appellant without examining whether appellant has .....

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as to whether appellant is rendering any other services at its SEZ Unit which may qualify for deduction under section 10AA. 5. The learned CIT ought to have appreciated that the decision arrived at by the Assessing Officer cannot be made subjectmatter of revision unless the Assessing Officer has adopted a view which is impossible or unsustainable in law." 3. In the set aside proceedings the AO has passed order under section 143(3) r.w.s. 263 of the Act on 17.01.2013. Against the order of t .....

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ice " neither for the purposes of entire Income Tax Act nor for the restricted purpose of allowing relief under section I0AA ,is not defined in the Income tax Act 1961 or in section IOAA and hence the AO has interpreted the word "service" as per the meaning attributable to it as per common parlance and has correctly disallowed the relief. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified, in allowing the appeal of the assessee, a .....

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;service" or "trading" of the nature practiced by the assessee the Legislature has deliberately chosen not to specifically say so. Therefore the decision of the CIT(A), in borrowing the meaning of the word "trading" or "service" from the SEZ Act is not in accordance with the intention of the Legislature and the spirit of the Act and hence not acceptable. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified, in al .....

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ng the appeal of the assessee, as the Ld CIT(A) has failed to appreciate that the three words "manufacturing" "produce " and "providing of services " used in section 10AA should be interpreted in continuity and coherently to put into effect the spirit and intention of the Legislature in bringing in the deduction under section 10AA, in the Income tax Act 1961 5. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified, in all .....

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-I, Mumbai. 6. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified, in allowing the appeal of the assessee, as the Ld CIT(A) has failed to appreciate, that as per the Hon'ble Rajasthan HC decision in the case of Kota Co-operative Marketing Society Vs CIT 207 ITR 608 (Raj), the Court had held that the exemption clause in the tax statute, should be construed strictly and cannot be extended beyond the clear language used in the section." 5. We .....

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but has done trading of goods only. For this purpose, learned AO has placed reliance on the order of Hon'ble Delhi High Court. Learned CIT(A) has taken into consideration these observation of the AO and thereafter he found that the Government of India has issues a circular No.17 of 29.5-2006, which was issued by Export Promotion Council For EOUs & SEZ Unit (Ministry of Commerce & Industry, Government of India). The contents of the Circular have also been incorporated in the finding .....

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g effect over the provision contained in any other Act. Learned CIT(A) has taken into consideration this circular issued by Government of India and the provision of Section 51 of the SEZ Act and found that trading done by the assessee is a service and, therefore, deduction under Section 10AA is allowable. We further noted that on similar facts in case of Goenka Diamonds and Jewellery Limited (supra), the Jaipur Bench of the Tribunal has discussed the issue in detail. The provisions of Section 51 .....

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4 of 2006, dated 24- 5-2006 issued by the Ministry of Commerce & Industry, Government of India and the definition of service given in the SEZ Act, 2005, which overrides the word 'service' accruing in Section 10AA by virtue of Section 51 of the SEZ Act. The assessee engaged in trading in nature of re-export of imported goods and for the same the assessee was entitled deduction under Section 10AA of the Act. Facts are similar before us, as the assessee is engaged in trading of re-expor .....

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