ACIT, V. Aksh Optifibre Ltd.,

ITA 2359/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9842 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-08-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 19-06-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Keywords: Question of law
• Section: 80HHC; 80IB

Judgement Text

ITA NO. 2359/DEL/2008 A.Y. 2001-02 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2359/DEL/2008 A.Y. 2001-02 ASSTT. CIT VS. M/S AKASH OPTIFIBRE LTD. GURGAON CIRCLE, GURGAON B-1, ENKAY TOWER, PHASE-V, UDOG VIHAR, GURGAON [APPELLANT] (RESPONDENT) APPELLANT BY : SHRI AK PANDEY, CIT(DR) RESPONDENT BY : NONE ORDER PER SHAMIM YAHYA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A) DATED 24.3.2008 FOR THE ASSESSMENT YEAR 2001-02. 2. THE ISSUE RAISED IS THAT THE LD. CIT(A) ERRED I N LAW IN ALLOWING THE ASSESSEES CLAIM OF DOUBLE DEDUCTION I.E. UNDER SECTION 80IB AND 80H HC. 3. IN THIS CASE THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80HHC AND 80IB OF THE IT ACT. THE ASSESSING OFFICER WAS OF THE OPINI ON THAT THE ASSESSEE CANNOT CLAIM DOUBLE DEDUCTION. THE ASSESSING OFFICER REFERRED T HE FACT THAT AS PER THE PRESCRIPTION OF SECTION 80IB(13), SECTION 80IA(9) WILL ALSO BE APPL ICABLE HERE. HENCE ASSESSING OFFICER HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION UNDER SECTION 80IB AND IS ONLY ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC. ITA NO. 2359/DEL/2008 A.Y. 2001-02 2 4. ON ASSESSEES APPEAL THE LD. CIT(A) ELABORATELY DEALT WITH THE ISSUE. HE INTERALIA PLACED RELIANCE UPON THE HONBLE MADRAS HIGH COURT ORDERS DATED 5.4.2008 DELIVERED IN THE CASE OF SCM CREATIONS VS. ACIT. ACCORDINGLY, H E HELD THAT DISALLOWANCE MADE BY THE ASSESSING OFFICER WAS NOT IN ACCORDANCE WITH LAW. 5. AGAINST THIS ORDER THE ASSESSEE IS AN APPEAL BE FORE US. 6. WE HAVE HEARD THE LD. DR. NONE APPEARED ON BEHA LF OF THE ASSESSEE. IT TRANSPIRED THAT DELHI SPECIAL BENCH C OF THE ITAT IN THE CASE OF ACIT VS. HINDUSTAN M INT & AGRO PRODUCTS (P.) LTD. (2009) 119 ITD 107 (DELHI)( SB) HAS DEALT WITH THE ISSUE AND DECIDED THE ISSUE IN FAVOUR OF THE REVENUE. IN THIS CASE , IT IS ALSO NOTED THAT THE SPECIAL BENCH HAS OBSERVED ON P.144 AS UNDER:- THE LATER DECISION OF MADRAS HIGH COURT IN THE CAS E OF GENERAL OPTICS (ASIA) LTD. V. DY. CIT(A) DECIDED ON 27.12.2008 HAS MADE OUR TASK EASI ER. IN THE SAID CASE, SIMILAR QUESTION WAS RAISED AND THE TRIBUNAL, AFTER FOLLOWI NG THE DECISION OF SPECIAL BENCH IN THE CASE OF ROGINI GARMENTS (SUPRA) HAD ALLOWED DEDUCTI ON UNDER SECTION 80HHC AFTER DEDUCTING RELIEF ALLOWED UNDER SECTION 80-IA(9). T HEIR LORDSHIPS IN THE JUDGMENT NOTED PROVISION OF SUB-SECTION (9A) AS ALSO CIRCULAR OF C BDT NO.772 AND ULTIMATELY OBSERVED AS UNDER:- 8. THE DECISION IN ACIT V. M/S ROGINI GARMENTS OF THE SPECIAL BENCH, WHICH WAS FOLLOWED BY THE TRIBUNAL, RELATES TO THE PERIOD SUB SEQUENT TO THE DATE WHEN THE AMENDMENT CAME INTO EFFECT. THEREFORE, THE TRIBUNA L ERRED IN APPLYING IT TO THE ASSESSMENT YEAR 1998-99 WHEN THE AMENDMENT HAD NOT YET COME INTO EFFECT. 9. IN THESE CIRCUMSTANCES, THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESSEE, BUT RESTRICTING IT ONLY TO THE ASSESSMENT YEAR 1998-99. ITA NO. 2359/DEL/2008 A.Y. 2001-02 3 THIS CLARIFICATION IS NECESSARY SINCE THE IMPUGNED ORDER WAS PASSED FOR BOTH ASSESSMENT YEARS 1998-99 AND 1999-2000. TAX CASE (APPEAL) IS DISPOSED OF ACCORDINGLY. NO C OSTS. CONSEQUENTLY, CONNECT M.P.S ARE CLOSED. IT IS CLEAR FROM ABOVE THAT APPLICATION OF RESTRICT IONS AS UPHELD BY THE SPECIAL BENCH IN THE CASE OF ROGINI GARMENTS (SUPRA ) WAS HELD TO BE APPLICABLE FROM ASSESSMENT YEAR 1999-2000 ONWARD. 7. RESPECTFULLY FOLLOWING THE PRECEDENCE ABOVE, WE SE ASIDE THE ORDER OF THE CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2009. SD/- SD/- [C.L. SETHI] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28 TH AUGUST, 2009 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES