Swiss Exports Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-8(2), Ahmedabad

ITA 1496/AHD/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57294 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 16-01-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 30-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: KETAN H SHAH
• Section: 143(3); 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 1496/ AHD/2008 (ASSESSMENT YEAR 2001-02) SWISS EXPORTS PVT. LTD., C/O KETAN H. SHAH, ADVOCATE, 903, SAPPHIRE COMPLEX, NR. CARGO MOTORS, C.G. ROAD, AHMEDABAD VS. ITO, WARD 8(2), AHMEDABAD PAN/GIR NO. :AADCS0719C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI KETAN H SHAH, AR RESPONDENT BY: SHRI B L YADAV, DR DATE OF HEARING: 16.01.2012 DATE OF PRONOUNCEMENT: 28.03.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) XIV, AHMEDABAD DATED 01.02.2008 FOR THE ASSE SSMENT YEAR 2001- 02. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDE R: THE FOLLOWING GROUNDS ARE WITHOUT PREJUDICE TO EAC H OTHER. THE LOWER AUTHORITIES HAVE ERRED - 1. IN NOT ALLOWING THE CLAIM U/S. 80HHC AT RS.27,01 ,4007- AS CLAIMED BEFORE THE ASSESSING OFFICER. 2. IN NOT TAKING EXPORT TURNOVER AT RS.1,67,46,2357 -AS AGAINST TAKEN AT RS.1,66,34,1117-. 3. IN NOT DEDUCTING 10% OF THE EXPORT INCENTIVE FRO M THE OVERHEADS OF THE COMPANY AS PER SUPREME COURT DECIS ION IN THE CASE OF HERO EXPORTS REPORTED IN 213 CTR 295 INTER ALIA THE DECISION OF SURENDRA ENGINEERING CORPORATION REPORT ED IN 86 ITD 121 (MUMBAI) (SPECIAL BENCH). IT IS PRAYED THAT THE DEPB, AS PER I.T.A.NO. 1496/AHD/2008 2 THE AFORESAID DECISION, 10% OF THE EXPORT INCENTIVE OUGHT TO HAVE BEEN DEDUCTED BY THE LOWER AUTHORITIES. 4. IN NOT APPRECIATING THE FACTS THAT THE GROUND BE FORE THE HON'BLE TRIBUNAL WAS IN REFERENCE TO CALCULATION OF 80HHC AND AS SUCH WHEN THE MATTER IS SENT BACK TO THE FILE OF TH E LOWER AUTHORITIES THEY ARE DUTY BOUND TO CORRECT ALL THE FACTS AND/OR ERRORS ON THE BASIS OF DEVELOPMENT OF LAW WHICH INCLUDES A MENDMENT, JUDGEMENTS, ETC. 2. BRIEF FACTS ARE THAT THE IMPUGNED ASSESSMENT ORD ER HAD BEEN FRAMED BY THE A.O. ON 09.10.2007 U/S 143(3) READ WITH SECT ION 254 OF THE INCOME TAX ACT, 1961. IT IS NOTED BY THE A.O. IN THE ASSE SSMENT ORDER THAT THE TRIBUNAL HAD RESTORED BACK THE MATER TO THE FILE OF THE A.O. FOR DECIDING THE MATTER AFRESH IN ACCORDANCE WITH THE AMENDED PR OVISIONS OF SECTION 80HHC OF THE INCOME TAX ACT, 1961. IT WAS SUBMITTE D BY THE ASSESSEE BEFORE THE A.O. THAT 10% OF DEPB INCOME I.E. EXPORT INCENTIVE SHOULD BE REDUCED FROM TOTAL INDIRECT EXPENSES BUT THIS CLAIM OF THE ASSESSEE, WAS NOT ACCEPTED BY THE A.O. BEING AGGRIEVED, THE ASSE SSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) WHO DECIDED THIS ISSUE AGAINST THE ASSESSEE ON THIS BASIS THAT THIS ASPECT WAS NEVER RAISED IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND THE SAME WAS NEVER RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O. AND, THEREFORE, NO RELIEF CAN BE A LLOWED ON THIS ACCOUNT. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. IT IS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF SURENDER ENGINEERING CORPORATION AS REPORTED IN 86 ITD 121 (MUMBAI (S.B.). 4. IN REPLY, IT WAS SUBMITTED BY THE LD. D.R. OF TH E REVENUES THAT THIS IS A FRESH CLAIM MADE BY THE ASSESSEE AND EXTRA CLA IM CANNOT BE RAISED IN SET ASIDE PROCEEDINGS AND THEREFORE, THE ORDER OF L D. CIT(A) SHOULD BE CONFIRMED. I.T.A.NO. 1496/AHD/2008 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THE REPOT OF THE C.A. IN FORM 10CCAC DATE 22.1 1.2004 IS AVAILABLE IN THE PAPER BOOK ON PAGE 2-6. ON PAGE 4, IN THE R EMARKS, IT HAS BEEN STATED BY THE C.A. THAT 10% OF EXPORT INCENTIVE I.E . RS.2,99,917/- SHOULD BE REDUCED FROM THE OVERHEADS OF RS.11,08,891/- AS THESE OVERHEADS INCLUDE EXPENSES INCURRED FOR EARNING EXPORT INCENT IVE ALSO. ON PAGE 5 OF THE PAPER BOOK, THE C.A. HAS WORKED OUT THE INDIREC T EXPENSES AFTER EXCLUDING THIS AMOUNT OF RS.2,99,917/- AND IN THIS MANNER, HE HAS WORKED OUT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80H HC AT RS.2,71,400/-. HENCE, THIS CANNOT BE SAID THAT THIS IS A NEW CLAIM RAISED BY THE ASSESSEE IN SET ASIDE PROCEEDINGS. THIS CLAIM OF THE ASSESS EE IS IN LINE WITH THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF SURENDRA ENGINEERING CORPN. (SUPRA). COPY OF THE TRIBUNAL O RDER AS PER WHICH THE MATTER WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF THE A.O., IS AVAILABLE ON PAGE 40 OF THE PAPER BOOK, AS PER WHICH, THE TRIBUN AL HAS RESTORED BACK THE MATTER TO THE FILE OF THE A.O. FOR A FRESH DECI SION IN ACCORDANCE WITH THE AMENDED PROVISIONS OF THE INCOME TAX ACT, 1961. HENCE, IN OUR CONSIDERED OPINION, THE CLAIM RAISED BY THE ASSESSE E IS NOT AN EXTRA CLAIM RAISED IN SET ASIDE PROCEEDINGS AND THEREFORE, THE SAME HAS TO BE ALLOWED AS PER LAW BUT THE WORKING OF THE SAME HAS TO BE DO NE BY THE A.O. IN THE LIGHT OF THE DECISION OF SPECIAL BENCH OF THE TRIBU NAL RENDERED IN THE CASE OF SURENDRA ENGINEERING CORPN. (SUPRA) AND HENCE, W E SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION ON THIS ASPECT REGARDING DEDUCTIBILITY OF 10% EXPORT INCENTIVE FROM INDIRECT EXPENSES IN THE LIGH T OF THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF SURENDRA I.T.A.NO. 1496/AHD/2008 4 ENGINEERING CORPN. (SUPRA). GROUND NO.3 OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO.1 & 4 ARE GENERAL. REGARDING GROUND N O.2, NO ARGUMENT WAS RAISED BY THE LD. A.R. AND HENCE IT IS TREATED THAT THIS GROUND IS NOT PRESSED. ACCORDINGLY, REJECTED AS NO T PRESSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (BHAVNESH SAINI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP ORDER PRONOUNCED ON SD./- (KB)JM SD./-(AKG)AM COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 02/3/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/03/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28/3 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.28/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28/3 /2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .