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TMI Blog2018 (5) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... eal in section 147/148 proceedings raising the very issues on 18.03.2013. It preferred ITA No.1841/Kol/2013 against the same well within time. A co-ordinate bench quashed the reopening under challenge therein in its order dt 18.11.2016 without deciding the three very issues on merits. There is no dispute that the CIT(A) has affirmed all the three impugned disallowances by placing reliance on his said order dated 18.03.2013 only. It therefore transpires that all three impugned issues on merits remain unadjudicated. This seems to be the main reason for the assessee to have filed the instant appeal after a lapse of 985 days. Learned Departmental Representative argued that the impugned delay is not sufficiently explained so as to be condoned. We find no merit in Revenue's stand since the assessee had been pursuing its remedy qua the very issues before this tribunal as indicated hereinabove. We thus find it a fit case to condone the impugned delay since the same is neither intentional nor deliberate on assessee's part. The assessee's appeal is therefore taken up for adjudication on merits. Heard both parties vehemently argued their respective stands against and in support of disallowan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by way of reduction in the custom duty payment. In both situations there is an increase in the Trading profit. There is no difference in situations when DEPB license is used for import or sold in the open market. Therefore, the assessee submitted that the income from the sale of DEPB licences is an integral part of the business of the assessee and the income therefrom is the regular business income of the assessee. The assessee cited the judgement of Honourable Supreme Court in the case of Topman Exports vs CIT (2012) 342 ITR 49 (Se) wherein it has been held by the Honourable Supreme Court that the income from sale of DEPB licences is the income from regular business and is eligible for exemption U/S 80HHC. Conclusion- 5.1 Exemption U/S 10A/10AA- The Honourable ITAT has decided in the case of the assessee for the AY 2004-05 to 2007-08 that the business of blending of tea for export is eligible for exemption U/S 10A/10AA. As there are no changes in the facts of the case and legal provisions, the AO is directed to allow exemption U/S 10A/10AA for the AYs 2009-10, 2010-11 and 2011- 12. 5.2 Disallowances U/S 14A- For AYs 2009-10 & 2010-11, the AO had made disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee was eligible for exemption in respect of export entitlement and special import licence as the income of EOU is eligible for exemption u/s. 10B of the Act. The Special Bench took note of the fact that export entitlement was allotted by the competent authority in respect of export undertaken by the assessee during the year. The Special Bench was of the view that the assessee off loaded the entitlement which was unusable and bought quota/entitlements which was required for procuring the required material necessary for its production purpose. The Special Bench also noted that special import licence was allotted to the assessee by the designated authority as per Export Import Policy and Procedure 1997-2002 and income arising out of sale of export entitlement and special import licence was assessed as income from business. The question before the Special Bench was that whether on such business income , the assessee is entitled to claim of deduction u/s. 10B of the Act. The relevant provisions of section 10B(4) reads as under: "(4) For the purposes of sub-section (1), the profits derived from export of articles or things or computer software shall be the amount which bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ula is as under :- Profit of the business of the Undertaking X Export turnover Total turnover of business carried out by The undertaking 79. Thus, sub-section (4) of section 10B stipulated that deduction under that section shall be computed by apportioning the profits of the business of the undertaking in the ratio of turnover to the total turnover. Thus, not-with-standing the fact that sub-section (1) of section 10B refers the profits and gains as are derived by a 100% EOU, yet the manner of determining such eligible profits has been statutorily defined in sub-section (4) of section 10B of the Act. As per the formula stated above, the entire profits of the business are to be taken which are multiplied by the ratio of the export turnover to the total turnover of the business. Sub-section (4) does not require an assessee to establish a direct nexus with the business of the undertaking and once an income forms part of the business of the undertaking, the same would be included in the profits of the business of the undertaking. Thus, once an income forms part of the business of the eligible undertaking, there is no further mandate in the provisions of section 10B to exclude the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of section 10A/10B of the Act is a complete code providing mechanism for computing the "profit of the business" eligible for deduction u/s. 10B of the Act. The Ld. DR could not point out any difference in the law or facts so we are inclined to uphold the order of the Ld. CIT(A) on the reasoning given by the Special Bench, (supra). Therefore, we do not find any merit in the appeal of the revenue and the same stands dismissed." We therefore follow the above coordinate bench's decision to delete this disallowance as well. 6. This leaves us to assessee's third grievance and seeking to claim interest income of Rs. 23,13,606/- to have been derived from the eligible export oriented unit as disallowed in assessment and affirmed in the lower appellate proceedings. There is no dispute between the parties that the impugned interest income has been derived from margin money earned on deposits made for availing credit facility from the bank purely for assessee's business purposes. Both parties take us to the coordinate bench's order in assessee's case itself (supra) in A.Y.2002-03 to 2004-05 holding identical income liable to be treated under the head business income consequently eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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