M/s Star Fish Exports, Aroor V. ACIT, Alappuzha

ITA 117/COCH/2007

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65036 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-12-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 05-02-2007
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA; M ANIL KUMAR
• Assessee Lawyers: R KISHORE KUMAR
• Keywords: Opportunity of being heard; Retrospective amendment
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NOS. 117/COCH/2007 ASSESSMENT YEAR : 2001-02 1.STAR FISH EXPORTS, FRIENDS ICE PLANT BUILDING, A.P.-VII/437, AROOR-688534 [PAN:AAHFS 1282M] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, ALLEPPEY. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) I.T.A. NOS. 95, 96 & 97/COCH/20 07 ASSESSMENT YEARS : 2001-02, 2002-03 & 2003 -04 CAPITHAN EXPORTING COMPANY, PORT ROAD, SAKTHIKULANGARA, KOLLAM. [PAN: AABFC 4904G] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM (ASSESSEE -APPELLANTS) (REVENUE-R ESPONDENT) I.T.A. NO. 491/COCH/2009 ASSESSMENT YEAR : 2000-01 CAPITHAN EXPORTING COMPANY, PORT ROAD, SAKTHIKULANGARA, KOLLAM. [PAN: AABFC 4904G] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM (ASSESSEE -APPELLANTS) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI R. KISHORE KUMAR, ADV. REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR AND SHRI M. ANIL KUMAR, CIT(DR) DATE OF HEARING 05/12/2012 DATE OF PRONOUNCEMENT 05/12/2012 I.T.A. NO.117 ETC./COCH/2007 2 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THESE APPEALS FILED BY THE RESPECTIVE A SSESSEES ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LD. CIT(A) BY CONFIRMING THE APPLICAB ILITY OF 3 RD AND 4 TH PROVISO TO SUB- SECTION 3 OF SEC. 80HHC OF THE ACT, WHICH WERE INSE RTED BY THE TAX LAWS AMENDMENT ACT WITH RETROSPECTIVE EFFECT FROM 01-04-1998, TO T HE ASSESSEES HEREIN DURING THE YEARS UNDER CONSIDERATION. SINCE THE ISSUE URGED IN THES E APPEALS IS IDENTICAL IN NATURE, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS COMMON ORDER. 2. THESE ASSESSEES FILED WRIT PETITIONS BEFORE T HE HONBLE HIGH COURT OF KERALA CHALLENGING THE RETROSPECTIVE AMENDMENTS REFERRED S UPRA. SINCE MANY APPEALS/WRIT PETITIONS WERE FILED BEFORE VARIOUS HIGH COURTS ON THE VERY SAME ISSUE, THE HONBLE SUPREME COURT CLUBBED ALL THOSE APPEALS AND WRIT PE TITIONS THAT WERE PENDING BEFORE VARIOUS HIGH COURTS AND POSTED THEM BEFORE THE HON BLE GUJARAT HIGH COURT FOR FINAL DISPOSAL. ACCORDINGLY, THE HONBLE GUJARAT HIGH CO URT, VIDE ITS ORDER DATED 02-07-2012, HAS RENDERED ITS DECISION ON THE ABOVE SAID ISSUE. THE OPERATIVE PORTION OF THE SAID ORDER READS AS UNDER:- 27. WE, ACCORDINGLY, QUASH THE IMPUGNED AMENDMENT ONLY TO THIS EXTENT THAT THE OPERATION OF THE SAID SECTION COULD BE GIVEN E FFECT FROM THE DATE OF AMENDMENT AND NOT IN RESPECT OF EARLIER ASSESSMENT YEARS OF THE ASSESSES WHOSE EXPORT TURNOVER IS ABOVE RS. 10 CRORE. IN O THER WORDS, THE RETROSPECTIVE AMENDMENT SHOULD NOT BE DETRIMENTAL TO ANY OF THE ASSESSEES. 3. THE LD. AR SUBMITTED THAT THESE APPEALS MAY BE S ET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE IMPUGNED ISSUE I N ACCORDANCE WITH THE DECISION RENDERED BY THE HONBLE HIGH COURT OF GUJARAT, REFE RRED SUPRA. 4. ON THE CONTRARY, THE LD. DR SUBMITTED THAT T HE ISSUE OF TAXABILITY OF DEPB CREDITS HAS SINCE BEEN SETTLED BY THE HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS (342 ITR 49) AND ACCORDINGLY SUBMITTED THAT THE ASSESSIN G OFFICER MAY BE DIRECTED TO I.T.A. NO.117 ETC./COCH/2007 3 CONSIDER THE IMPUGNED ISSUE IN THE LIGHT OF THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS, REFERRED SUPRA. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PER USED THE RECORD. WE FIND FORCE IN THE CONTENTIONS MADE BY BOTH THE COUNSEL. WE AGREE WIT H THE CONTENTIONS OF BOTH THE COUNSEL THAT THE ISSUES RELATING TO THE TAXABILITY OF DEPB BENEFITS AND THE APPLICABILITY OF THE 3 RD AND 4 TH PROVISO TO SEC. 80HHC(3) DURING THE YEARS UNDER CO NSIDERATION NEED TO BE EXAMINED AFRESH IN THE LIGHT OF THE DECISIONS RE FERRED SUPRA. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) ON THE IMPUGNED ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE DECISIONS RENDERED BY HONBLE GUJARAT HIGH COUR T AND HONBLE APEX COURT, REFERRED SUPRA AND DECIDE THE SAME IN ACCORDANCE WITH LAW AF TER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESS EES ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY O N 5-12-2012. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 5 TH DECEMBER, 2012 GJ COPY TO: 1. STAR FISH EXPORTS, FRIENDS ICE PLANT BUILDING, A.P.-VII/437, AROOR-688534 2. CAPITHAN EXPORTING COMPANY, PORT ROAD, SAKTHIKULA NGARA, KOLLAM. 3. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, ALAPPUZHA. 4. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM. 5. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOC HI. 6. THE COMMISSIONER OF INCOME-TAX(APPEALS)-III, TRI VANDRUM. 7. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. I.T.A. NO.117 ETC./COCH/2007 4 8. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 9. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 10. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN