TMI Blog2019 (11) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate for this Tribunal to decide on the said issue. However, considering the fact that, these are old appeals, and they need to dispose off the issues in the quantum appeals by the Revenue for assessment year 2008-09 and 2009-10 are restore to the file of Assessing Officer for denovo re-adjudication after granting the assessee adequate opportunity of being heard and after receipt of the decision of the Hon ble Jurisdictional High Court in Writ Petition in respect of condonation of delay in filing the return referred to supra for assessment years 2008-09 and 2009-10. Exclusion of freight, insurance from the export turnover as well as total turnover while computing deduction u/s.10B - CIT(A) has followed the judicial discipline and has followed the decision of the Special Bench of Chennai Tribunal in the case of ITO Vs. Sak Soft Ltd [ 2009 (3) TMI 243 - ITAT MADRAS-D] we find no reason to interfere in the order of the ld. CIT(A) on this issue CIT(A) directing the AO to alter the nomenclature of the addition from suppression in export turnover to increase in value of Closing Stock - As the issue of deduction u/s.10B itself is pending before the Hon ble Jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied u/s.271(1)(c) of the Income Tax Act, 1961 (in short the Act ). I.T.A.No.1904 /Chny/2012 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals)-III, Chennai in ITA No.56/11-12/A-III dated 21.08.2012 for assessment year 2008-09 against the confirmation of penalty levied u/s.271(1)(c) of the Act. I.T.A.No.2003/Chny/2014 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals) (A/C )-II, Chennai in ITA No.341/13-14 dated 28.03.2014 for assessment year 2009-10 against the confirmation of action of the Assessing Officer in denying the exemption claimed by the assessee u/s.10B of the Act and in respect of disallowance u/s.14A of the Act. I.T.A.No.2002 /Chny/2012 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals)( A/C)-II, Chennai in ITA No.342/13-14 dated 28.03.2014 for assessment year 2009-10 against the confirmation of penalty levied u/s.271(1)(c) of the Act. 2. Mr.S.Sridhar represented on behalf of the Assessee and Mr.AR.V.Sreenivasan represented on behalf of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso, the denial of deduction u/s.10B of the Act had been rightly made. It was submitted that this issue was related to Ground Nos.2.1. to 2.21 in the appeal of Revenue for assessment year 2008-09 in ITA No.2113/Chny/2012. In regard to Grounds Nos.3.1 to 3.5 of Revenue s appeal for assessment year 2008-09, it was submitted that the issue was against the action of the ld.CIT(A) in directing the Assessing Officer to alter the nomenclature of the addition from suppression in export turnover to increase in value of Closing Stock. In regard to Grounds Nos.4.1 to 4.2 of Revenue s appeal for assessment year 2008- 09, it was submitted that the issue was against the action of the ld.CIT(A) in directing the Assessing Officer to exclude freight, insurance etc. from Export Turnover as well as Total Turnover while computing deduction u/s.10B of the Act. The ld.DR vehemently supported the order of the Assessing Officer. It was submitted that the order of ld.CIT(A) was liable to be reversed. 7. In reply, ld.AR submitted that the issue of deduction u/s.10B of the Act being pending before the Hon ble Jurisdictional High Court, the issue may be restored to the file of Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be restored to the file of Assessing Officer for re-adjudication after the decision of Hon ble Jurisdictional High Court in W.Ps filed by the assessee. In respect of disallowance u/s.14A of the Act, it was submitted that the assessee has not earned any exempt income and consequently, no disallowance u/s.14A was called for in view of the decision of the Hon ble Delhi High Court in the case of Joint Investment Pvt. Ltd., vs CIT reported in 372 ITR 694, (Delhi). In respect of the issue of suppression in the export turnover, it was submitted that the issue may be restored to the file of Assessing Officer for verification. It was a submission that if the assessee is held to be entitled to deduction u/s.10B of the Act, then the addition on account of suppression of turnover would not lead to any taxable income. 9. In reply, the ld.DR submitted that he had no objections, if the issues are restored to the file of Assessing Officer to await the decision of the Hon ble Jurisdictional High Court regarding allowability of assessee s claim u/s.10B of the Act. It was a submission that in respect of disallowance u/s.14A of the Act, the issue may be restored to the file of Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities below. 13. We have heard the rival contentions and perused the material available on record. Admittedly, the main crux of the issue in all appeals is related to denial of deduction u/s.10B of the Act. The fact remains that the assessee company is engaged in the manufacturing, processing and exporting of Pulverized Garnet, an essential raw material in the manufacture of Abrasives, paints etc. It has its manufacturing unit at Radhapuram Taluk, Tirunelveli District, which is an 100% EOU as recognized by the Development commissioner, MEPZ,Chennai-45. It had been granted deduction u/s.10B of the Act on the profits from the export of business and the same was granted to the assessee till the assessment year 2007-08. The facts remain that there was a survey on the premises of the assessee on 23.03.2010. For the assessment years 2008-09 and 2009-10, there was a delay in filing of the return on account of the Accountant of the company turning against the company and thereby causing loss of data, which had to be sorted out by sending the main server of the assessee to software engineers for retrieval of the original data. Though the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udication after considering the directions issued by the Hon ble Jurisdictional High Court in the W.P.s filed by the assessee. The Assessing Officer shall also verify as to whether the alleged suppressed turnover has been included in the turnover of the subsequent assessment years. 13.3. In respect of the assessee s appeal for the assessment year 2009-10, in ITA No.2003/Chny/2014, the issue of deduction u/s.10B of the Act is restored to the file of Assessing Officer on similar lines as in respect of the appeal of Revenue in ITA No.2113/Chny/2012 for assessment year 2008-09. 13.4 In respect of disallowance u/s.14A of the Act, the Assessing Officer is to verify as to whether the assessee has earned any exempt income from the said investments. If no exempt income is earned, then in view of the decision of the Hon ble Delhi High Court in the case of Joint Investment Pvt. Ltd., Vs. C.I.T referred to supra, no disallowance is called for. 13.5 In respect of issue of suppression in export turnover, on similar directions as given in respect of Ground Nos.3.1. to 3.4 of the Revenue s appeal in ITA No.2113/Chny/2012, this issue is restored to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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