The ITO, Jr. Ward-2(3), PORBANDAR V. M/s. Amar Cold Storage, PORBANDAR

ITA 201/RJT/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2391 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT GOKANI
• Keywords: Retrospective amendment
• Section: 143(3); 80HHC

Judgement Text

I .T.A. NO S . 201 & 202/RJT/2013 : ASSESSMENT YEAR 1998 - 99 & 99 - 00 : PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT . [CORAM: PRAMOD KUMAR , AM AND RAJPAL YADAV, JM ] I.T.A. NO. 201 & 202 /RJT/ 2013 ASSESSMENT YEAR S : 1998 - 99 & 1999 - 2000 INCOME - TAX OFFICER, JR, WARD - 2(3), PORBANDAR. . ......... ...... .... APPELLA NT VS. M/S AMAR COLD STORAGE, PORBANDAR. . . RESPONDENT PAN AADFA3206B APPEARANCES BY: PRASOON KABRA . .......... FOR THE APPELLANT ANKIT GOKANI .......... F OR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : 5 TH OCTO BER, 2015 DATE OF PRONOUNCING THE ORDER : 4 TH JANUARY, 2016. O R D E R PER PRAMOD KUMAR , AM : THESE TWO APPEALS PERTAIN TO THE SAME ASSESSEE, WERE HEARD TOGETHER AND CHALLENGE CORRECTNESS OF LEARNED CIT(A) S COMMON ORDER DATED 13 TH FEBRUARY, 2013 IN T HE MATTER OF ORDERS U/S 143(3) R.W.S. 254 OF THE INCOME - TAX ACT, 1961, FOR THE ASSESSMENT YEARS 1998 - 99 AND 1999 - 2000 . 2. COMMON GRIEVANCES RAISED IN THESE APPEALS ARE AS FOLLOWS : - 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO ALLOW DE DUCTION U/S 80HHC OF THE ACT ON THE BASIS OF TH E ORDER OF THE HON BLE GUJARAT HIGH COURT DATED 02.04.2012 WHICH WAS NOT EVEN PASSED WHEN THE ITAT DECIDED THE MATTER. I .T.A. NO S . 201 & 202/RJT/2013 : ASSESSMENT YEAR 1998 - 99 & 99 - 00 : PAGE 2 OF 3 2. THE CIT(A) ERRED IN LAW AND FACTS IN NOT APPRECIATING THE FACT THAT THE AO HAS RIGHTLY AL LOWED THE DEDUCTION U/S 80HHC OF THE ACT AS DIRECTED BY THE HON BLE ITAT AND THE CIT(A) SHOULD NOT HAVE DIRECTED THE AO TO ALLOW DEDUCTION U/S 80HHC ON THE BASIS OF SOME ORDER WHICH WAS NOT REFERRED TO BY THE ITAT. 3. BRIEFLY, THE RELEVANT MATERIAL FACTS ARE AS FOLLOWS. THESE ARE THE CASES IN WHICH THE MATTER REGARDING COMPUTATION OF ADMISSIBLE DEDUCTION UNDER SECTION 80HHC WAS, VIDE THIS TRIBUNAL S ORDER DATED 16 TH NOVEMBER, 2009, REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN TH E LIGHT OF THE S PECIAL BENCH DECISION IN THE CASE OF TOPMAN EXPORTS VS. ITO 125 TTJ 289). IN THE COURSE OF ENSUING PROCEEDING, HOWEVER, LEARNED CIT(A) TOOK NOTE OF HON BLE JURISDICTIONAL HIGH COURT S JUDGMENT IN THE CASE OF AVANI EXPORTS & ORS. VS. CIT ( 34 8 ITR 391) WHICH HAS QUASHED RETROSPECTIVE APPLICABILITY OF AMENDMENT MADE UNDER SECTION 80HHC, WHICH THUS HELD THAT EXPORT TURNOVER BEING MORE THAN RS.10 CRORES WILL NOT ACT TO THE DETRIMENT OF THE ASSESSEE. THE ASSESSING OFFICER WAS ACCORDINGLY DIRECTED TO RE - COMPUTE THE ADMISSIBLE DEDUCTION IN THE LIGHT OF THE ABOVE LEGAL POSITION. THE ASSESSING OFFICER IS AGGRIEVED AND IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. WE FIND THAT THE COMPUTATION OF ADMISSIBLE DEDUCTION UNDER SECTION 80HHC WAS TO BE DONE IN ACCORDANCE WITH THE LAW AND IN THE LIGHT OF THE SPECIAL BENCH DECISION IN THE CASE OF TOPMAN EXPORTS (SUPRA). ONCE H ON BLE JURISDICTIONAL HIGH COURT HOLDS THAT A RETROSPECTIVE AMENDMENT IN SECTION 80HHC CANNOT ACT TO THE DETRIMENT OF THE ASSESSEE AND THE EXPORT TURNOVER BEING IN EXCESS OF RS.10 CRORES CANNOT DEPRIVE ASSESSEE OF THE RELATED 80HHC BENEFIT, IT CANNOT BE OP EN TO THE ASSESSING OFFICER NOT TO FOLLOW THE LAW SO LAID DOWN. WHETHER THE LAW SO SAID DOWN WAS LAID DOWN PRIOR TO THE TRIBUNAL S ORDER REMANDING THE MATTER TO THE FILE OF THE ASSESSING OFFICER OR AFTER THAT, AND WHETHER THIS IS SPECIFICALLY REFERRED TO I N THE TRIBUNAL S REMAND ORDER OR NOT, IS WHOLLY IMMATERIAL. THE DECISION OF TOPMAN I .T.A. NO S . 201 & 202/RJT/2013 : ASSESSMENT YEAR 1998 - 99 & 99 - 00 : PAGE 3 OF 3 EXPORTS (SUPRA) AND AVANI EXPORTS (SUPRA) ARE ON DIFFERENT FAC E TS OF SECTION 80HHC AND THERE IS NO, AND CANNOT BE ANY CONFLICT IN THE SAME. THE LAW LAID DOWN BY HON BLE JURI SDICTIONAL HIGH COURT FULLY FINDS ALL SUBORDINATE FORUMS, INCLUDING THIS TRIBUNAL AS INDEED THE CIT(A) , AND THE CIT(A) WAS, THEREFORE, QUITE JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE DEDUCTION, INTER ALIA, IN THE LIGHT OF HON BLE JURISDIC TIONAL HIGH COURT S JUDGMENT IN THE CASE OF AVANI EXPORTS (SUPRA). WE APPROVE THE STAND OF THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 6. IN THE RESULT, APPEALS ARE DISMISSED. PRONOUNCED TODAY ON 4 TH DAY OF JANUARY, 2016 . SD/ - SD/ - ( RAJPAL YADAV ) PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 4 TH DAY OF JANUARY , 2016 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT ( 3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAJKOT