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June 17, 2022

Export incentives are deductible under section 80IB (11A)

by CA Shivam Jaiswal in Income Tax

Export incentives are deductible under section 80IB (11A)

Facts and Issue of the case

The facts of the  case  are  that  the  assessee  is  a  limited company engaged in the business of  export  of  frozen  shrimp  and  other sea foods filed its return of income for the AY 2017-18 declaring a total income  of  Rs.  52,30,54,010/-.    After  processing  the  return  of  income U/s. 143(1), the case was selected for complete scrutiny under CASS and accordingly statutory notices U/s. 143(2) and 142(1) were issued in electronic format to the assessee  calling  for  the  information.  The assessee’s representative filed  its  reply  on  line  through  e-filing  portal. The AO on examination of  the  information  furnished  by  the  assessee made a  disallowance  U/s.  14A  r.w.r  8D  for  Rs.28,57,443/-.  Thereafter, the Ld. Pr. CIT invoking the powers vested U/s. 263 of the Act noticed  that the assessment  order  passed  is  prima  facie  erroneous  and prejudicial to the interest of the Revenue .

The Ld. Pr. CIT issued a show cause notice to the assessee on 5/3/2021. In response, the assessee-company made its submissions on 22/3/2021. Considering the submissions made by the assessee, the Ld. Pr. CIT directed the Assessing Officer to disallow a sum of Rs. 10,24,00,779/- arising from the receipt of duty draw back and Rs. 6,89,08,253/- arising from the sale of licenses considering it as not derived from the industrial undertaking so as to entitle the assessee to claim the benefit of deduction u/s. 80IB(11A) of the Act. The Ld. Pr. CIT relied on the decision laid down by the Hon’ble Supreme court in the case of Liberty India vs. CIT (SC) 317 ITR 218.

grounds of appeal:

1 . The order of the Hon’ble Pr. CIT (Central) Visakhapatnam passed U/s. 263 insofar as it is against the appellant is oppose  law, equity, weight of evidence,probabilities and the facts and circumstances in the appellant’s case.

2. The Hon’ble Pr. CIT has grossly erred in revising the order passed by the Assessing officer without appreciating that there is no  error, much less prejudicial to the interests of the revenue to warrant a revision and therefore the order passed by the Hon’ble Pr.  CIT  is ultra vires to the scope of section 263 and requires to be cancelled under the facts and circumstances of the appellant’s case.

3. The Hon’ble Pr. CIT has erred in not appreciating the settled position of law that, where there are two opinions possible on the an  issue, section 263 cannot be exercised to invoke such as issue.

4 . The Hon’ble Pr. CIT has grossly erred in revising the order passed by the Ld. AO without appreciating that there is no error, much less prejudicial to the interests of the Revenue to warrant a revision and therefore the order passed by the Hon’ble Pr. CIT is ultra vires to the scope of section 263 and requires  to  be  cancelled  under the facts and circumstances of the Appellant’s case.

5. Without prejudice to the above Hon’ble Pr. CIT ought to have appreciated that the aforesaid  issue on  which the Hon’ble Pr. CIT had sought to revise the assessment order is a conscious  view adopted by the Ld. AO, which is not shown to be erroneous and consequently, the jurisdiction under section 263 of the Act stands ousted and accordingly the impugned order passed deserves to be cancelled, under the facts and circumstances of the appellant’s case.

6. The Hon’ble Pr. CIT is justified in passing the order U/s 263 of the Act, without giving proper opportunity to the appellant, under the facts and circumstances of the case.

7. The Hon’ble Pr. CIT ought to have appreciated the fact that appellant’s case, will not fall under sub-section(1), explanation  2(b) of section 263 of the Act, under the facts and circumstances of the case.

8. The Hon’ble Pr. CIT  is not justified to conclude that the  deduction U/s. 80IB(11A) of the Act,  of  an amount being  Rs. 22,82,85,812/- was allowed by the Ld. AO without properly examining the issue, under the facts and circumstances of the case.

9. The Hon’ble Pr. CIT, is not justified in directing the Ld. AO to re-do the assessment by taking into consideration the judgment of Apex Court, even when the facts of the appellant’s case are distinguishable on merits, under the facts and circumstances of the case.

10. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above.

11. In view of the above and other  grounds that may be urged  at the time of the hearing of the appeal, the appellant prays that the appeal may be allowed in the interest of justice and equity.”

The Ld. AR submitted that the order of the Ld. Pr. CIT is prima facie erroneous on the ground that since the AO has examined the books of accounts of the assessee submitted before him. A  mere  change  of opinion by the Ld. Pr. CIT is not in accordance with law. The Ld. AR further submitted that the assessee has received  incentives  framed under the Foreign Trade Policy arising out of the exports made by the assessee. The Ld. AR further submitted that these incentives  are provided by the Government of India in making exports viable and more attractive in the international markets.  The Ld. AR also submitted that the incentives are granted based on Free on Board (FOB) basis, authenticated and administered by the Commissioner of Customs in the shipping bills. The Ld. AR forcibly contended that these incentives are derived from the industrial undertaking and should be regarded as profits and gains of business. The Ld. AR also invited our attention to section 28(iiib) of the Income Tax Act, 1961 which provides that “cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of the Government of India” should be treated as part of business profits. The Ld. AR further submitted that Taxation Laws (Amendment) Act, 2005 has inserted in section 28 a new clause-(iiid) with retrospective effect from 1/4/1998 that any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy formulated and announced under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 shall be treated as part of the business profits of the exporter. The Ld. AR also relied on the ratio laid down by the Hon’ble Supreme Court in the case of CIT vs. Meghalaya Steels Ltd (2016) 383 ITR 217 (SC). The Ld. AR vehemently argued that the Liberty India (supra) judgment has been nullified by the ratio laid down in Meghalaya Steel Ltd (supra) in the year 2016 and hence the ratio laid down in Liberty India (supra) should not be valid. The Ld. AR also submitted that if there is no export sales, the assessee is not entitled for these incentives and hence it has direct link and nexus with the activities of the assessee industrial undertaking entitling deduction U/s. 80IB(11A)  of  the  Act.

 Further, relying on the aforesaid judgments, the Ld. AR submitted that the claim of deduction U/s. 80IB(11A) be allowed by refraining the order of the Ld. Pr. CIT.The Ld. DR submitted that the Ld. Pr. CIT has rightly considered the decision of the Hon’ble Supreme  Court  in  the  case  of Liberty India vs. CIT [2009] 317  ITR  218  (SC)  that  the  duty  drawback, sale of license etc.,  would  constitute  independent  source  of  income beyond the first degree nexus between profits earned by the industrial undertaking and do not form part of the eligible undertaking  for  the purpose of 80IB of the Act. The Ld. DR also pleaded that the order of the Ld. Pr. CIT shall be upheld.

Observation by the court

The court has considered that  the  rival  submissions  and  perused  the  orders of the authorities below as well as the materials available on record. The admitted facts are that that  there  is  no  dispute  by  the  Revenue Authorities regarding the entitlement of deduction to the assessee U/s. 80IB(11A)  of  the  Act.  The  main contention of  the  Ld. AR  is that the  Ld. Pr. CIT has relied on the decision of the Hon’ble Supreme Court in the case of Liberty India (supra) whereas the Hon’ble Supreme Court in its subsequent judgment in the  case  of  Meghalaya  Steels  Ltd  (supra) rendered a final verdict after referring to its earlier decisions in the case of Liberty India vs. CIT (supra). We  have  also  observed  that  the Authorities below have failed to understand the Legislative  Intent behind the insertion of a clause-(iiid) to section 28 of the Act with retrospective effect wherein it has been held that any profit on the transfer of the Duty Entitlement Pass Book Scheme, being the Duty Remission Scheme under the export and import policy formulated and announced under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 shall be treated as part of the business profits of the exporter and assessed  as “profits and gains of business or profession” and not under  the  head “income from other sources”.

 The issue  revolves around the  provisions of section 80IB(11A) of the IT Act, 1961, we find it appropriate and necessary to reproduce the provisions of section 80IB(1) & (11A) of the Act.

The only issue in the present case is the entitlement for deduction U/s. 80IB(11A) of the Act where the Pr. CIT referred to the decision of the Hon’ble Supreme Court in the case of Liberty India vs. CIT (supra) and directed the AO to exclude the export incentives for the purpose of computation of deduction U/s. 80IB(11A) of the Act. As the export incentives cannot be considered as profits derived from industrial activities for the purpose of claiming deduction U/s. 80IB(11A) of the Act, the reliance placed by the Ld. AR in the decision of the Hon’ble Supreme Court in the case of Meghalaya Steels Ltd (supra) have merits in the case. Relevant paras 28 & 29 of Meghalaya Steels Ltd (supra) judgment delivered by the Hon’ble Supreme Court .

Therefore, in view of the subsequent decision of the Hon’ble Supreme Court in the case of Meghalaya Steel Ltd (supra), the findings recorded by the authorities below based on the decision of the Hon’ble Supreme Court in the case of Liberty India (supra) cannot be held as sustainable as the Hon’ble Supreme Court in para 29 of its decision in Meghalaya Steel  Ltd  (supra)  held  that  the  Hon’ble  Himachal  Pradesh High Court having wrongly  interpreted  the  judgment  in  the  case  of  CIT vs. Sterling Foods [1999] 104 Taxman 204 and Liberty India (supra)  to arrive at the opposite conclusion has held to be wrongly decided. We are therefore of the considered view  that  since  the  Hon’ble  Supreme  Court has overruled its earlier decision in the case of Liberty India (supra) the decision in the case of Meghalaya Steel  Ltd  (supra)  holds  good. Respectfully following the decision of the Hon’ble Apex Court in the case of Meghalaya Steel Ltd (supra), we hold  that  the  export  entitlements (MEIS) and the duty drawback of promotion scheme is an income asssessable under the head “profits or gains from business or profession” as per clause (iiib) and (iiid) to section 28 of the  IT Act,  1961.  In  view  of the above, the Ground No.8 raised by the assessee is allowed.

With respect to Grounds Nos.2, 3, 4, 5, 6, 7, & 9, we are of the considered view that since the ratio held in Meghalaya Steel Ltd (supra) over rides the ratio laid in Liberty India (supra), the AO has rightly considered the same and therefore the exercising his powers U/s. 263 by Pr.CIT is not valid and the ground Nos .2, 3, 4, 5, 6, 7, & 9 are allowed.

Conclusion

 The appeal of the assessee is allowed by the court.

Nekkanti-Sea-Foods-Limited-Vs-PCIT-ITAT-Visakhapatnam-1

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