M/s. Mirza International Ltd., Kanpur V. Asstt. Commissioner of Income Tax-6 , Kanpur

CO 38/LKW/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8379 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-03-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 08-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K JAIN; G C SRIVASTAVA
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI J SUDHAKAR REDDY , ACCOUNTANT MEMBER ITA NO S . 181 TO 184/LKW/2012 ASSESSMENT YEAR S : 1999 - 2000, 2002 - 03, 2003 - 04 AND 2004 - 05 ACIT - 6 KANPUR V. M/S MIRZA INTERNATIONAL LTD. 14/6, CIVIL LINES, KANPUR PAN: AABFM2644R (APPELLANT) (RESPONDENT) C.O NOS.38 TO 41/LKW/2012 [ ARISING OUT OF ITA NO S . 181 TO 184/LKW/2012] ASSESSMENT YEAR S : 1999 - 2000, 2002 - 03, 2003 - 04 AND 2004 - 05 M/S MIR ZA INTERNATIONAL LTD. 14/6, CIVIL LINES, KANPUR V. ACIT - 6 KANPUR PAN: AABFM2644R ( CROSS OBJECTOR ) (RESPONDENT) DEPARTMENT BY: SHRI. PRAVEEN KUMAR, CIT (DR) ASSESSEE BY: S/SHRI. G. C. SRIVASTAVA & S. K. JAIN DATE OF HEARING: 18.03.13 DATE OF PRON OUNCEMENT: 22.03.13 O R D E R PER BENCH : ALL THESE APPEALS ARE FILED BY THE REVENUE AND ARE DIRECTED AGAINST SEPARATE ORDERS OF THE LD. CIT(A) - II, KANPUR FOR ASSESSMENT YEARS 1999 - 2000, 2002 - 03, 2003 - 04 AND 2004 - 05. THE ASSESSEE HAS FILED CROSS OBJE CTIONS IN ALL THESE APPEALS. 2 . THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND CARRIES ON BUSINESS OF TEA AND OTHER CONSUMABLE ITEMS. THE : - 2 - : SOLE ISSUE INVOLVED IN ALL THESE APPEALS IS WITH REGARD TO THE COMPUTATION OF RELIEF UNDER SE CTION 80HHC OF THE INCOME - TAX ACT, 1961 IN RESPECT OF EXPORT INCENTIVES BEING DEPB CREDITS. THE COMMON GROUNDS OF APPEALS OF THE REVENUE READ AS FOLLOWS: - 1 . T HE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THE FACTS THAT ASSESSEE HAS NOT DRI VING PROFIT AGAINST SALE OF DEPB/LICENSE WHEREAS IN THIS CASE ISSUE WAS INVOLVED ONLY AGAINST PROFIT OF SALE OF LICENSES AND NOT AGAINST THE CONSUMPTION OF DEPB AS DECIDED BY THE C.I.T. (A). 2 . THAT THE ORDER OF THE LD. CIT (A) - II, KANPUR BEING ERRONEOUS IN L AW AND ON FACTS DESERVES TO BE VACATED AND THE ORDER OF THE AO BE RESTORED. 3 . THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF THE APPEAL GIVEN ABOVE AND OR ADD ANY FRESH GROUND AS AND WHEN IT IS CONSIDERED TO DO SO. 3 . THE COMMON GROUNDS TAKEN BY THE ASSESSEE IN THE CROSS OBJECTIONS READ AS FOLLOWS: - 1 . THE C.I.T. (APPEALS) HAS ERRED IN DIRECTING THE A.O. TO ALLOW BENEFITS IN RESPECT OF D.E.P.B. U/S 80 HHC, ONLY TO THE EXTENT OF D.E.P.B. CONSUMED FOR OWN PURPOSES AND THEREBY LIMITING SUCH BENEFIT TO THAT EXTENT, WHEREAS IN LAW SUCH BENEFIT IS AVAILABLE ON THE WHOLE AMOUNT REPRESENTING THE FACE VALUE OF D.E.P.B. FOR THE PURPOSE OF CLAIMING DEDUCTION UNDER SECTION 80HHC OF THE INCOME TAX ACT, 1961. 2 . THAT THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS I N SHORT COMPUTING AND ALLOWING ELIGIBLE DEDUCTION UNDER SECTION 80HHC OF THE INCOME TAX ACT, 1961. : - 3 - : 3 . THAT ANY OTHER RELIEF OR RELIEFS DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, BE GRANTED. 4 . WE HAVE HEARD SHRI. PRAVEEN KUMAR, CIT (DR) ON BEHALF OF THE REVENUE AND SHRI. G. C. SRIVASTAVA ON BEHALF OF THE ASSESSEE. BOTH THE PARTIES AGREED BEFORE US THAT THE GROUNDS IN THE REVENUES APPEALS AND THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTIONS FOR ALL THE YEARS ARE IDENTICAL. BOTH THE PARTIES AGREED THAT THE ISSUE IN QUESTION SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION BY TAKING INTO CONSIDERATION THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT [2012] 342 ITR 49 (SC). 5 . IN VIEW OF THE ABOVE SUBMISSION, WE SET ASIDE ALL THE APPEALS OF THE REVENUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, APPLYING THE PROPOSITION LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT ( SUPRA). 6 . IN THE RESULT, ALL THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . COMING TO THE CROSS OBJECTIONS, THE SAME ARE DISMISSED AS INFRUCTUOUS. 8 . IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJE CTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.3.2013. SD/ - SD/ - [SUNIL KUMAR YADAV] [ J SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22.3.2013 JJ: 2003 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR