M/s. Liberty Enterprises, Karnal V. ACIT, Karnal

CO 30/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4469 (ITAT-DELHI)
• Duration Of Justice: 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-10-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reassessment proceedings
• Section: 80HHC; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4760/DEL/2009 ASSESSMENT YEAR : 2003-04 ASST. COMMISSIONER OF INCOME TAX KARNAL CIRCLE, KARNAL VS. M/S. LIBERTY ENTERPRISES, RAILWAY ROAD, KARNAL PAN : AAAFL 5275 C C.O. NO. 30/DEL/2010 (IN ITA NO. 4760/DEL/2009) ASSESSMENT YEAR : 2003-04 M/S. LIBERTY ENTERPRISES, RAILWAY ROAD, KARNAL VS. ASST. COMMISSIONER OF INCOME TAX KARNAL CIRCLE, KARNAL (APPELLANT) (RESPONDENT) DEPARTMENT BY : SMT. KAVITA BH ATNAGAR, CIT (DR) ASSESSEE BY : : NONE O R D E R PER: C.L. SETHI, J.M. IN THE APPEAL, FILED BY THE REVENUE AGAINST THE O RDER DATED 01.10.2009 PASSED BY THE LD. CIT(A) IN THE MATTER OF AN ASSESS MENT MADE U/S. 143(3)/147 OF THE INCOME TAX ACT, 1961 (THE ACT) FOR THE A.Y. 2003-04, THE ONLY GROUND RAISED BY THE REVENUE AS UNDER:- ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT RIGHT IN HOLDING THAT THE DEDUCT ION U/S. 80HHC ON THE FACE VALUE/RECEIVABLE OF DEPB AMOUNTIN G TO RS. 45366592/- IS ALLOWABLE. ITA NO. 4760/DEL/2009 C.O. NO. 30/DEL/2010 PAGE 2 OF 3 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS, WH ERE THE ASSESSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN UPHOLDING THE VALIDITY OF REASSESSMENT PROCEEDINGS INITIATED BY THE AO U/S. 147 OF THE ACT , 3. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L ON RECORD. 4. HAVING REGARD TO THE ISSUES INVOLVED IN THIS CAS E AND AN IDENTICAL ISSUE HAS BEEN DECIDED IN SOME OTHER CASES, WE ARE NOT IN CLINED TO GRANT ANY ADJOURNMENT TO THE ASSESSEE AS PRAYED FOR. 5. IN ANOTHER CASE OF SAME GROUP I.E. IN THE CASE O F M/S. LIBERTY SHOES LTD. ITA NO. 1066/DEL/2009, WE, VIDE OUR ORDER DATE D 11.02.2010, AFTER HEARING BOTH THE PARTIES, HAVE PASSED THE ORDER ON THE IDEN TICAL ISSUE AS UNDER:- 2. IN THE COURSE OF HEARING OF THIS APPEAL, THE LD . COUNSEL FOR THE ASSESSEE RAISED ONLY ONE ISSUE ABOU T THE ASSESSEES CLAIM OF DEDUCTION U/S. 80HHC WITH REFER ENCE TO DEPB RECEIPT/DUTY DRAWBACK AND PREMIUM ON IMPORT LICENSES, AND IN THIS RESPECT, HE PLACED RELIANCE U PON THE DECISION OF INCOME TAX APPELLATE TRIBUNAL, SPECIAL BENCH, MUMBAI, IN THE CASE OF TOPMAN EXPORTS VS. I.T.O. RE PORTED IN (2009) 125 TTJ (MUMBAI)(SB) 289. 3. THE LD. DR WAS HEARD IN THE LIGHT OF THE SUBMISS IONS MADE BY THE ASSESSEE. 4. AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, WE FIND IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF TH E AO FOR HIS FRESH DECISION IN THE LIGHT OF THE VIEW TAKEN BY TH E SPECIAL BENCH OF INCOME TAX APPELLATE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO (SUPRA). THE LD. COUNSEL FO R THE ASSESSEE HAS ALSO AGREED TO RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION IN THE LI GHT OF THE DECISION OF SPECIAL BENCH OF INCOME TAX APPELLATE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO (SUP RA). WE ORDER ACCORDINGLY. NEEDLESS TO MENTION THAT AO SHALL PROVIDE REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE WHILE DECIDING THE MATTER AFRESH. ITA NO. 4760/DEL/2009 C.O. NO. 30/DEL/2010 PAGE 3 OF 3 5. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED FOR A STATISTICAL PURPOSE. 6. RESPECTFULLY FOLLOWING OUR AFORESAID ORDER, WE R ESTORE THE ISSUE BACK TO THE FILE OF THE AO FOR HIS FRESH ADJUDICATION AF TER PROVIDING OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. THE ISSUE WITH REG ARD TO THE VALIDITY OF REASSESSMENT PROCEEDING SHALL ALSO BE DECIDED BY TH E AO IN THE COURSE OF FRESH ASSESSMENT PROCEEDINGS IN THE LIGHT OF THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFT (IND IA) LTD. VS. ITO (2003) 259 ITR 19 (SC), AFTER CONSIDERING THE OBJECTIONS O F THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A S WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE TREATED TO BE ALLOWED FOR STATISTICAL PURPOSE. 8. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 16 TH FEBRUARY, 2010. SD/- (SHAMIM YAHYA ) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 16 TH FEBRUARY, 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR