ITO 25(3)(1), MUMBAI V. BIPIN D SONI, THANE

ITA 1048/MUM/2011

• Counselvise Citation: 104819914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 16-09-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P PATHAK
• Keywords: Retrospective amendment
• Section: 143(3); 80HHC

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI .. , !'# $ $ $ $ %&. !.'.. $( ) !'# !* BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN, JM !./ I.T.A. NO. 1048 /MUM/2011 ( )( , $-, )( , $-, )( , $-, )( , $-, / / / / ASSESSMENT YEAR : 1998-99) INCOME TAX OFFICER 25(3)(1), ROOM NO. 307, 3 RD FLOOR, BLDG. C-11, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. ( ( ( ( / VS. SHRI BIPIN D. SONI, PROP. M/S VIJPRIYA EXPORTS, 140-L, CAVEL CROSS LANE NO. 7, R.N.6 IST FLOOR, GAIWADI, CHURCH ST., MUMBAI 400 002. #. !./ PAN : AAGPS0593L ( ./ / // / APPELLANT ) .. ( 01./ / RESPONDENT ) ./ 2 3 ! / APPELLANT BY : SHRI C.P. PATHAK 01./ 2 3 ! / RESPONDENT BY : NONE !($ 2 / // / DATE OF HEARING : 16-09-13 45- 2 / DATE OF PRONOUNCEMENT :20-09-2013 '6 / O R D E R PER P.M. JAGTAP, A.M. : .. , !'# THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD. CIT(A) -35, MUMBAI DATED 26-11-2010 FOR ASSESSM ENT YEAR 1998-99 ON THE FOLLOWING GROUNDS:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A.O. TO ALLOW DEDUCTION U/S 80HHC OF THE I.T. ACT, 1961 IN VIEW OF THE AMENDMENT IN S ECTION 80HHC(3) BY ITA 1048/M/11 2 TAXATION LAWS (AMENDMENT) ACT- 2005 AND ALSO AS THE ASSESSING OFFICER HAD ALLOWED THE SAID DEDUCTION FOR THE A.Y. 1999-20 00. (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A.O. TO ALLOW DEDUCTION U/S 80HHC OF THE I.T. ACT, 1961 SINCE THE AMENDMENT IN SECTIO N 80HHC(3) BY TAXATION LAWS (AMENDMENT) ACT- 2005 WITH RETROSPECT IVE EFFECT FROM 1- 4-98 IS NOT APPLICABLE FOR THE YEAR UNDER CONSIDERA TION I.E. 1998-1999. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO IS ENGAGED IN THE BUSINESS OF EXPORT OF FABRIC GARMENTS IN THE NAME A ND STYLE OF HIS PROPRIETARY CONCERN M/S VIJPURIA EXPORT. THE RETURN OF INCOME F OR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 30-7-1998 DECLARI NG TOTAL INCOME OF RS. 48240/- AFTER CLAIMING DEDUCTION U/S 80HHC OF THE I NCOME TAX ACT, 1961 (THE ACT). IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT VIDE AN ORDER DATED 23-23-2001, THE A.O. DISALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80HHC OF THE ACT ON THE GROUND THAT IF THE DUTY DRAW BACK AMOUNTING TO RS. 1.48 CRORES WAS EXCLUDED FROM THE EXPORT PROFIT S, THE ASSESSEE ACTUALLY INCURRED LOSS FROM THE EXPORT ACTIVITIES. THE APPEA L FILED BY THE ASSESSEE AGAINST THE ORDER OF THE A.O. WAS DISMISSED BY THE LD. CIT(A) EX PARTE FOR NON- PROSECUTION. ON FURTHER APPEAL, THE TRIBUNAL SET AS IDE THE EX PARTE ORDER OF THE LD. CIT(A) AND REMANDED THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH DISPOSAL OF THE APPEAL ON MERIT. DURING THE COURSE OF FRESH APPELLATE PROCEEDINGS, THE LD. CIT(A) NOTED THAT A SIMILAR IS SUE INVOLVED IN ASSESSEES OWN CASE FOR 1999-2000 WAS RESTORED BY THE TRIBUNAL TO THE FILE OF THE A.O. FOR DECIDING THE SAME AFRESH IN VIEW OF THE AMENDMENTS MADE IN SECTION 80HHC OF THE ACT BY THE TAXATION (AMENDMENT) ACT, 2005 WI TH RETROSPECTIVE EFFECT FROM 1-4-1998 AND IN THE FRESH ASSESSMENT COMPLETED FOR THAT YEAR VIDE AN ORDER DATED 19-12-2008, THE CLAIM OF THE ASSESSEE F OR DEDUCTION U/S 80HHC WAS ACCEPTED BY THE A.O. KEEPING IN VIEW THE SAID A MENDMENTS WHICH WERE APPLICABLE IN THE CASE OF THE ASSESSEE FOR A.Y. 199 9-2000 AS THE EXPORT TURNOVER FOR THE SAID YEAR WAS LESS THAN RS. 10 CRO RES. SINCE THE SAID AMENDMENTS MADE WITH RETROSPECTIVE EFFECT FROM 1-4- 1998 WERE APPLICABLE ITA 1048/M/11 3 EVEN TO THE YEAR UNDER CONSIDERATION I.E 1998-99 AN D THE EXPORT TURNOVER OF THE ASSESSEE FOR A.Y. 1998-99 WAS LESS THAN RS. 10 CRORES, THE LD. CIT(A) VIDE HIS IMPUGNED ORDER ALLOWED THE CLAIM OF THE ASSESSE E FOR DEDUCTION U/S 80HHC RELYING ON THE SAID AMENDMENTS. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS PREFERRED THIS APPEAL BEFOR E THE TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US, NONE HAS APPEA RED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE REVENUE IS THEREFORE BEING DISPOSED OF EX PARTE QUA THE ASSESSEE AFTER HEARING THE ARGUMENTS OF LD. D.R. WHO HAS NOT BEEN ABLE TO DISPUTE THE POSITION THAT THE AMENDMENTS MA DE IN SECTION 80HHC OF THE ACT BY TAXATION LAWS (AMENDMENTS) ACT, 2005 WIT H RETROSPECTIVE EFFECT FROM 1-4-1998 ARE APPLICABLE TO THE YEAR UNDER CONS IDERATION I.E 1998-99 AND THE ASSESSEE HAVING THE EXPORT TURNOVER OF LESS THAN RS. 10 CRORES IS ENTITLED TO DEDUCTION U/S 80HHC OF THE ACT AS CLAIM ED IN THE RETURN OF INCOME AS PER THE SAID AMENDMENT. WE, THEREFORE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE LD. CIT(A) ALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION 80HHC OF THE ACT RELYING ON THE SAID AMENDMENTS AND UPHOLDING THE SAME, WE DISMISS THE APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. #$ 2 7 2 89 ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2013. . '6 2 45- :'(; 20-09-2013 5 2 SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP ) ) !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; :'( DATED 20-09-2013 $.)(.!./ RK , SR. PS ITA 1048/M/11 4 '6 2 0)<= >=- '6 2 0)<= >=- '6 2 0)<= >=- '6 2 0)<= >=-/ COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. ? () / THE CIT(A)- 35, MUMBAI 4. ? / CIT 25, MUMBAI 5. =$B 0))( , , / DR, ITAT, MUMBAI G BENCH 6. %, C / GUARD FILE. '6(! '6(! '6(! '6(! / BY ORDER, !1= 0) //TRUE COPY// D D D D/ // /!8 !8 !8 !8 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI