M/s. Pradip Exports, Ahmedabad V. The ACIT., Circle-10, Ahmedabad

ITA 1395/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5615 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 21-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: U S RAINA
• Keywords: Business income; Principle of natural justice; Retrospective amendment
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 22/07/2010 DRAFTED ON: 23/0 7/2010 ITA NO.1395/AHD/2008 ASSESSMENT YEAR : 2004-05 PRADIP EXPORTS A/601, NARNARAYAN COMPLEX NAVRANGPURA AHMEDABAD VS. THE ASSTT.CIT CIRCLE-10 AHMEDABAD PAN/GIR NO. : AACFP 0018 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : -NONE- RESPONDENT BY: SHRI U.S. RAINA, D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XVI , AHMEDABAD DATED 12/03/2008 PASSED FOR ASSESSMENT YEAR 2004-0 5 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED ASSTT.CIT HAS ERRED IN LAW AND ON FACTS OF THE CASE BY NOT ALLOWING THE PROFIT ON SALE OF DEPB LICENCE, DE PB ENTITLEMENT FOR CALCULATION OF DEDUCTION U/S.80HHC. 2. SINCE THE PROVISION OF SECTION 28 HAS ALREADY BEEN AMENDED WITH RETROSPECTIVE EFFECT AND ALLOWED THE PROFIT ON SALE OF DEPB LICENCE FOR COMPUTATION OF DEDUCTION U/S.80HHC IN CASE OF A SSESSEE WHOSE TURN OVER WAS BELOW RS.10 CRORES WHICH WAS TOTALLY AGAINST THE PRINCIPLE OF EQUALITY. ITA NO.1395/AHD /2008 PRADIP EXPORTS VS. ASSTT.CIT ASST.YEAR 2004-05 - 2 - 3. THE TAXATION LAWS (SECOND AMENDMENT) BILL, 2005 NO. 155 OF 2005 DATED 06/12/2005 HAS ALREADY PASSED IN THE PARLIAME NT AND HIS EXECLLENCY THE PRESIDENT OF INDIA HAD ALSO BEEN GIV EN CONSENT. AS PER TAXATION LAWS (SECOND AMENDMENT) BILL, 2005, WHICH SEEKS TO REPEAL AND REPLACE THE TAXATION LAWS (AMENDMENT) ORDINANCE 2005 (NO.4 OF 2005) IS TO MAKE THE FOLLOWING MODIFI CATIONS IN THE PROVISIONS CONTAINED IN THE SAID ORDINANCE. CLAUSE 3 OF THE BILL SEEKS TO INSERT NEW CLAUSES (I IID) AND (IIIE) IN SECTION 28 OF THE INCOME TAX ACT, 1961 SO AS TO PRO VIDE THAT ANY PROFIT ON THE TRANSFER OF THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING DUTY REMISSION SCHEME OR THE DUTY FREE REPLEN ISHMENT CERTIFICATE, BEING DUTY REMISSION SCHEME UNDER THE EXPORT AND IMPORT POLICY FORMULATED AND ANNOUNCED U/S 5 OF THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 SHALL BE TRE ATED AS BUSINESS INCOME. THIS MODIFICATION IS CONSEQUENTIAL TO THE AMENDMENT PROPOSED TO SECTION 80HHC OF THE INCOME TAX ACT, 19 61 WIDE CLAUSE 4 OF THE BILL. 4. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS OF THE CASE BY CONSIDERING THE NEGATIVE FIGURE ARRIVED WHI LE CALCULATING DEDUCTION U/S.80HHC(3)(C). SUCH NEGATIVE FIGURE DO ES NOT REPRESENT PROFIT. THAT MAY BE PART OF INCOME BUT C AN NOT BE PART OF ELIGIBLE PROFIT. IN VIEW OF NATURAL JUSTICE AND EQUALITY AMONG ALL T HE DEDUCTION U/S.80HHC WHICH WAS ALLOWED TO THE EXPORTERS WHOSE TURNOVER WAS BELOW RS.10 CRORES SAME BE ALLOW TO THE EXPORTERS W HOSE TURNOVER WAS MORE THAN RS.10 CRORES. THE APPELLANT CRAVE TO ADD, ALTER OR AMEND ANY OF T HE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. IN THE PAST, THIS CASE WAS FIXED FOR HEARING AND TH E REGISTRY HAS ALSO ISSUED DEFECT MEMO BUT NO ONE RESPONDED THOSE NOTICES. 3. IN ORDER TO PROCEED IN THE MATTER, NOTICE FIX ING THE DATE OF HEARING ON 22/07/2010 WAS SERVED UPON THE ASSESSEE ON 20/06/2 010 (A.D. PLACED ON ITA NO.1395/AHD /2008 PRADIP EXPORTS VS. ASSTT.CIT ASST.YEAR 2004-05 - 3 - RECORD). WHEN THE CASE WAS CALLED FOR HEARING, NO NE WAS PRESENT ON BEHALF OF THE ASSESSEE AND NEITHER ANY ADJOURNMENT APPLICATION HAS BEEN FILED. THIS SHOWS THAT THE ASSESSEE IS NOT IN TERESTED IN PURSUING WITH THIS APPEAL. THEREFORE, IN VIEW OF HON'BLE MADHYA PRADESH HIG H COURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HO LKA VS. CWT (1997) 223 ITR 480 (M.P.) AND OF HON'BLE DELHI TRIBUNAL DECISION IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD. 38 ITD 320 (DELHI), WE DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE . 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 22 ND JULY, 2010. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22 / 07 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XVI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD