ACIT, Moradabad V. M/s. Aglow Exports, Moradabad

ITA 268/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9901 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-07-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 23-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA : VICE PRESIDENT; A ND SRHI R.P. TOLANI : JUDICIAL MEMBER ITA NO. 2826/DEL/08 ASSTT. YRS: 2004-05 DCIT, RANGE-II, VS. M/S A TO Z EXPORTS, MORADABAD. DELHI ROAD, MORADABAD. PAN/GIR NO. AAFFA3379M ITA NO. 269, 299 & 268/DEL/09 ASSTT. YRS: 2003-04, 04-05 & 2005-06 ACIT, RANGE-II, VS. M/S AGLOW EXPORTS, MORADABAD. OIL MILL COMPOUND, MAZHOLA, DELHI ROAD, MORADABAD. PAN/GIR NO. AAFFA6457N ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : MS. PRATIMA KAUSHIK SR. DR RESPONDENT BY : NONE O R D E R PER G.E. VEERABHADRAPPA, V.P: THESE APPEALS, BY THE REVENUE, INVOLVING COMMON DIS PUTES, ARISE OUT OF DIFFERENT ORDERS OF THE CIT(A) FOR A.Y. 2003-04, 2004-05 & 2005-06. 2. THE ASSESSES IN THESE CASES ARE EXPORTERS AND TH EY WERE ENTITLED FOR DEDUCTION U/S80-HHC AS ALSO U/S 80-IB OF THE I.T. A CT, 1961. THE ASSESSES CLAIMED DEDUCTION U/S 80-IB AND 80-HHC ON THE GROS S TOTAL INCOME WITHOUT REDUCING THE DEDUCTION CLAIMED UNDER EITHER OF THE PROVISIONS. THE 2 ASSESSING OFFICER APPLIED THE PROVISIONS OF SECTIO N 80-IA(9) AND REDUCED THE DEDUCTION ALLOWABLE UNDER CHAPTER VIA. THE CIT (A) ACCEPTED THE ASSESSEES CONTENTION IN THE LIGHT OF THE ORDER OF THE ITAT IN THE CASE OF IRFAN SHERIFF VS. ACIT (2006) 7 SOT 57. THE REVENUE IS A GGRIEVED. 3. NONE PUT IN APPEARANCE ON BEHALF OF THE ASSESSES AT THE HEARING. WE HAVE HEARD LEARNED DR AND HAVE GONE THROUGH THE MAT ERIAL ON RECORD. THE ISSUE IS NOW CONCLUDED AGAINST THE ASSESSEE BY THE DECISION OF THE SPECIAL BENCH OF THE ITAT IN THE CASE OF HINDUSTAN MINT AN D AGRO PRODUCTS PVT. LTD. 119 ITD 107 (SB) (DEL). IN THE LIGHT OF THE AF ORESAID DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL WE REVERSE THE ORDER OF THE CIT(A) ON THE ISSUE IN QUESTION AND RESTORE THAT OF THE AO. 4. THE NEXT ISSUE IN THESE APPEALS RELATES TO THE D IRECTION OF THE CIT(A) TO ALLOW DEDUCTION U/S 80-IB ON THE AMOUNT OF EXPO RT INCENTIVE SUBSIDY AS A PART OF INCOME DERIVED FROM EXPORT BUSINESS, CARRI ED OUT BY THE ASSESSEE. 5. THE LEARNED DR FAIRLY CONCEDED THAT THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ELTEX SGS (P) LTD . (2008) 3 DTR 241 DATED 19-2-2008 IS AGAINST THE REVENUE . 6. WE HAVE GONE THROUGH THE RECORDS AND ARE IN AGRE EMENT WITH THE FINDINGS OF THE CIT(A) ON THIS ISSUE. THE CUSTOM DU TY DRAW BACK WHICH IS RECEIVED IS A PROFIT DERIVED FROM THE PROFIT OF AN INDUSTRIAL UNDERTAKING AND 3 HENCE IT IS SQUARELY ELIGIBLE FOR DEDUCTION U/S 80- IB OF THE ACT, SINCE THE SAME IS THE INCOME DERIVED FROM THE INCOME OF AN IN DUSTRIAL UNDERTAKING. THE SOURCE OF THE RECEIPT IS THE BUSINESS OF THE IN DUSTRIAL UNDERTAKING, WHICH IS TO MANUFACTURE AND EXPORT GOODS OUT OF THE RAW M ATERIAL THAT WERE EXPORTED AND ON WHICH CUSTOM DUTY IS PAID. FOLLOWIN G THE DECISION OF THE HONBLE DELHI HIGH COURT CIT VS. ELTEX SGS (P) LTD. (SUPRA), WE DECLINE TO INTERFERE. 7. IN THE RESULT, REVENUE S APPEALS ARE PARTLY ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON ______________. (R.P. TOLANI ) ( G.E. VEERABHADR APPA ) JUDICIAL MEMBER VICE PRESIDENT DATED: _______-07-2009. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4