Smt. Sekar Vijaya, CHENNAI V. ITO, CHENNAI

ITA 1045/CHNY/2011

• Counselvise Citation: 104521714 RSA 2011
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 07-06-2011
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: R SIVARAMAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER I.T.A.NO. 1045/MDS/2011 (ASSESSMENT YEAR : 2002-03) MS. SEKAR VIJAYA, PROPX. MADRAS SEA FOODS, NO.6, SINGANNA CHETTY STREET II LANE, CHINDADRIPET, CHENNAI 600 002. PAN AAEPV 2671 E VS. THE INCOME-TAX OFFICER, BUSINESS WARD-VII (2), NUNGAMBAKKAM, CHENNAI 34. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R. SIVARAMAN, ADVOCATE RESPONDENT BY : SHRI K.E.B.RENGARAJAN, JR. STANDING COUNSEL DATE OF HEARING : 16 TH AUGUST, 2011 DATE OF PRONOUNCEMENT : 16 TH AUGUST, 2011 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS APPEAL IS FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2002-03. THIS APPEAL IS DIRECTE D AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-X II, AT IT A 1045/11 :- 2 -: CHENNAI DATED 31.3.2011 AND ARISES OUT OF THE ASSES SMENT COMPLETED UNDER SEC.143(3) OR THE INCOME-TAX ACT, 1 961. 2. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THE PR ESENT CASE IS AGAINST THE DISALLOWANCE OF THE CLAIM MADE BY THE A UTHORITIES BELOW IN RESPECT OF DEDUCTION AVAILABLE UNDER SEC.8 0HHC. THE CASE OF THE LEARNED COUNSEL APPEARING FOR THE ASSES SEE IS THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOT CONSID ERED THE AMENDMENT MADE TO SEC.80HHC(3) OF THE ACT. THE NEX T CONTENTION RAISED BY THE ASSESSEE IS AGAINST THE PO RTION OF ADDITION SUSTAINED BY THE COMMISSIONER OF INCOME-TA X (APPEALS) UNDER SEC.68 OF THE ACT. THE ORIGINAL ADDITION MAD E BY THE ASSESSING AUTHORITY WAS ` 14,57,502/-, OUT OF WHICH THE COMMISSIONER OF INCOME-TAX HAS GIVEN A RELIEF OF ` 6,17,500/-. THE ASSESSEE IS ALSO AGGRIEVED WITH REFERENCE TO TH E MATTER OF ADDITION OF ` 82,158/- WHICH HAS BEEN RESTRICTED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) TO THE EXTENT OF ` 5,000/-. 3. WE HEARD SHRI R. SIVARAMAN, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE AND SHRI K.E.B.RENGARAJA N, THE LEARNED JUNIOR STANDING COUNSEL APPEARING FOR THE R EVENUE. IT A 1045/11 :- 3 -: 4. AS FAR AS THE FIRST ISSUE OF SEC.80HHC(3) IS CON CERNED, THE RELEVANT AMENDMENT HAS CLASSIFIED ALL THE ASSESSEES INTO TWO, ON THE BASIS OF THE EXPORT TURNOVER OF ` 10 CRORES AND LESS, AND ` 10 CRORES AND MORE. IN RESPECT OF THE FIRST CATEGORY OF ASSESSEES, THE DEDUCTION AVAILABLE UNDER SEC.80HHC HAS TO BE C OMPUTED ON THE BASIS OF THE STATUTORY FORMULA, IRRESPECTIVE OF THE QUESTION WHETHER THE EXPORT PER SE HAS RESULTED IN PROFIT OR NOT. THEREFORE, THIS MATTER HAS TO BE LOOKED INTO BY THE ASSESSING AUTHORITY. REGARDING THE ADDITION MADE UNDER SEC.68 ALSO, NEIT HER THE ASSESSING OFFICER NOR THE COMMISSIONER OF INCOME-TA X (APPEALS) HAS EXAMINED THE DETAILS AND PARTICULARS FURNISHED BY THE ASSESSEE IN A COMPREHENSIVE MANNER. THIS ALSO NEED S RE- EXAMINATION. THEREFORE, WE REMIT BACK THE FILE TO THE ASSESSING OFFICER TO RE-CONSIDER ALL THE ISSUES IN ACCORDANCE WITH LAW AND OF COURSE, WITHOUT CAUSING ANY PREJUDICE TO THE RELIEF ALREADY GRANTED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). THE A SSESSING AUTHORITY IS FURTHER DIRECTED TO GIVE AN EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE COMPLETING THE R EMAND ASSESSMENT. IT A 1045/11 :- 4 -: 5. IN RESULT, THIS APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING, ON TUESDAY, THE 16 TH DAY OF AUGUST, 2011 AT CHENNAI. SD/- SD/- (HARI OM MARATHA) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 16 TH AUGUST, 2011 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR