M/s. Hansita, New Delhi V. ACIT, New Delhi

CO 196/DEL/2013

• Counselvise Citation: [2014] 123 COUNSELVISE.COM (IT) 0156 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-10-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 11-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SATPAL SINGH
• Section: 80HHC; 148

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI G.D.AGARWAL , HON BLE VICE PRESIDENT AND SHRI C.M. GARG . , JUDICIAL MEMBER ITA NO . 3083 / DEL / 201 3 ASSESSMENT YEAR : 200 2 - 0 3 (PAN AAA FM 3310 G ) ( A PPELLANT ) (RESPONDENT) APPELLANT BY : SHRI SATPAL SINGH , SR.D.R. RESPONDENT BY: SHRI G.N. GUPTA, ADVOCATE . ORDER PER SHRI C.M. GARG , J M : 1. THIS APPEAL OF THE REVENUE AS WELL AS C ROSS OBJECTION OF THE ASSESSEE HAVE BEEN DIRECTED AGAINST THE COMMON ORDER OF THE CIT(A) - XXVI, NEW DELHI DATED 28.02.2013 IN APPEAL NO.033/2010 - 11 FOR AY. 2002 - 03. 2. THE SOLE GROUND RAISED BY THE REVENUE READS AS UNDER: 1. THE CIT(A) HAS ERRED IN DIRECTING THE AO TO RECOMPUTED THE DEDUCTION U/ S 80HHC OF THE IT ACT DESPITE THE FACT THAT THE ACIT, CIRCLE - 33(1), NEW DELHI. VS. M/S . HANSITA C/O AJAY BHALLA, W - 78A GREATER KAILASH - II, NEW DELHI. (PAN AAAFM 3310 G) C.O NO. 196 /DEL/201 3 A.Y.200 2 - 0 3 M/S HANSITA VS. A CIT, C IRCLE - 33 (1) C/O AJAY BHALLA, W - 78A NEW DELHI. GREATER KAILASH - II NEW DELHI. ITA NO. 3083 /DEL /201 3 CO NO. 196 /DEL/201 3 2 ASSESSEE ITSELF HAD NOT CLAIMED ONLY DEDUCTION U/S 80HHC ITS RETURN OF INCOME FILED U/S 148 OF THE IT ACT. 3. APROPOS AFOREMENTIONED SOLE GROUND OF THE REVENUE WE HAVE HEARD RIVAL ARGUMENTS OF BOTH THE SIDE S AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD BEFORE US, INTER ALIA ASSESSMENT ORDER, IMPUGNED ORDER OF CIT(A) REVISED COMPUTATION FILED BY THE ASSESSEE AND DECISIONS RELIED BY BOTH THE PARTIES INCLUDING DECISION OF HON BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT(A) SAM GLOBAL SECURITIES LTD. (2014) 360 ITR 682 (DELHI). 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT THE CIT(A) HAS ERRED IN DIRECTING THE AO TO RE - COMPUTE THE DEDUCTION U/S 30HHC OF THE INCOME TAX ACT , 1961 (FOR SHORT THE ACT) DESPITE THE FACT THAT THE ASSESSEE ITSELF HAD NOT CLAIMED ANY DEDUCTION IN THIS RETURN OF INCOME FILED U/S 148 OF THE ACT. 5. THE LD. COUNSEL FOR THE ASSESSEE REPLIED THAT THE ASSESSEE SUBMITTED THE CLAIM U/S 80HHC OF THE ACT WA S SUBMITTED BY REVISED COMPUTATION OF INCOME ON 03.11.2009 FILED BEFORE THE AO WHICH WAS ACCEPTED BY THE DEDUCTION U/S 80HHC OF THE ACT HAS REDUCED TO ZERO WITHOUT ANY BASIS. THE LD. COUNSEL FURTHER CONTENDED THAT THE C IT (A) RIGHTLY FOLLOWED THE DECISION O F HON BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT MUMBAI (2012) 342 ITR 49 (S C ) AND EXTENDED THE BENEFIT TO THE ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT IN VIEW OF DECISION OF HON BLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. SAM GLOB AL SECURITIES LTD. (SUPRA) THE CLAIM U/S 80HHC IS SUBMITTED BY WAY OF REVISED COMPUTATION OF INCOME IS ALLOWABLE EVEN IF THE SAME WAS NOT PLACED IN ORIGINAL RETURN OF INCOME. ITA NO. 3083 /DEL /201 3 CO NO. 196 /DEL/201 3 3 6 . ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS WE OBSERVE THAT THE AO ACCEPTED THE REVISED COMPUTATION OF INCOME WHEREIN THE ASSESSEE PLACED CLAIM OF DEDUCTION U/S 80HHC OF THE ACT BUT REDUCED THE DEDUCTION TO ZERO WITHOUT ANY JUSTIFIED REASON. ON APPEAL BEFORE THE CIT(A), THE SAME CLAIM WAS ALLOWED FOLLOWING THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA), THE RELEVANT OPERATIVE PART OF IMPUGNED ORDER READS AS UNDER: 9. KEEPING IN VIEW THE OBSERVATIONS MADE, IN THE AFORESAID PARAGRAPHS BY THE HON BLE SUPRME COURT OF INDIA, IN THE CA S E OF TOPMAN EXPORTS VS. CIT, MUMBAI (2012) 342 ITR 49 (SC), I AM OF THE OPINION THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL STANDS COVERED BY THE RATIO LAID DOWN BY THE HON BLE SUPREME COURT IN THE ABOVE MENTIONED CASE, AND THEREFORE, THE ASSESSING OFFICER WAS NOT CORRECT IN TAKING THE VIEW IN THE IMPUGNED JUDGMENT THAT THE ENTIRE SALE PROCEEDS OF THE DEPB REALIZED ON TRANSFER OF THE DEPB, AND NOT JUST THE DIFFERENCE BETWEEN THE SALE VALUE AND THE FACE VALUE OF THE DEPB REPRESENT PROFIT ON TRANSFER OF THE DEPB. RESPECTFULLY FOLLOWING THE ORDER OF THE HON BLE SUPREME COURT OF INDIA IN THE CASE OF TOPMAN EXPORTS V. CIT (SUPRA), I DIRECT THE AO TO COMPUTE THE DEDUCTION UNDER SECTION 80HHC OF THE ACT, IN LINE WITH THE DIRECTIONS OF THE HON BLE COURT (SUPRA) AFTER GIVING A REASON ABLE OPPORTUNITY TO THE ASSESSEE. 7 . UNDER FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE GRIEVANCE OF THE DEPARTMENT IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HON BLE HIGH COURT AT DELHI IN THE CASE OF CIT VS. SAM GLOBAL (SUPRA) AND RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE CIT(A) WAS RIGHT IN ACCEPTING THE REVISED COMPUTATION AT INCOME WHEREIN THE ASSESSEE SUBMITTED CLAI M OF DEDUCTION U/S 80HHC OF THE ACT WHICH WAS NOT PLACED IN THE ORIGINAL COMPUTATION OF INCOME. 8 . AT THE SAME TIME, WE ALSO OBSERVE THAT THE CIT(A) WAS ALSO RIGHT IN FOLLOWING THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF T OPMAN EXPORTS ITA NO. 3083 /DEL /201 3 CO NO. 196 /DEL/201 3 4 VS. CIT (SU PRA) AND DIRECTING THE AO TO RECOMPUTED THE DEDUCTION U/S 80HHC AS PER RATIO OF THE DECISION OF HON BLE APEX COURT. THUS, WE ARE UNABLE TO SEE ANY PERVERSITY, AMBIGUITY OR ANY OTHER VALID REASON TO INTERFERE WITH THE IMPUGNED ORDER AND WE UPHELD THE SAME. ACCORDINGLY, SOLE GROUND OF THE REVENUE IS DISMISSED. CROSS OBJECTION OF THE ASSESSEE 9 . SINCE BY EARLIER PART OF THIS ORDER, WE HAVE UPHELD THE ORDER OF THE CIT(A), WHICH GRANTED RELIEF FOR THE ASSESSEE AND DISMISSED THE APPEAL OF THE REVENUE. HENCE, CR OSS OBJECTIONS FILED BY THE ASSESSEE ONLY TO SUPPORT THE IMPUGNED ORDER NOT SURVI VE FOR ADJUDICATION IN DETAIL ON MERITS. THEREFORE, CROSS OBJECTIONS OF THE ASSESSEE ARE ALSO DISMISSED. 10 . IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS C ROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 / 12/ 201 4 . SD/ - SD/ - ( G.D. AGARWAL ) ( C.M. GARG ) VICE PRESIDENT J UDICIAL MEMBER DATED: 11/ 12/ 201 4 . AK. VERMA / - COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST . REGISTRAR, ITAT, NEW DELHI