Ful Kant Jha, New Delhi V. ACIT circle-24 (1), New Delhi

ITA 2797/DEL/2008

• Counselvise Citation: 279720114 RSA 2008
• Duration Of Justice: 4 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 29-08-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S K ARORA
• Keywords: Gift; Business income; Opportunity of being heard; Competent authority
• Section: 80HHC; 80G; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-2797/DEL/2008 (ASSESSMENT YEAR-2003-04) DR. FUL KANT JHA, VS ACIT, Z-13, HAUZ KHAS, CIRCLE-24(1), NEW DELHI-110018 NEW DELHI. P AN-AACPJ1888D (APPELLANT) (RESPONDENT) APPELLANT BY: SH. S.K.ARORA, ADV RESPONDENT BY: SH. VIVEK KUMAR, SR. DR. ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30.06.2008 OF CIT(A)-XXV, NEW DELHI PERTAINING TO 2003-04 ASSE SSMENT YEAR ON THE FOLLOWING GROUNDS :- GROUND NO. 1 THAT ON THE FACTS, LAW AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX, (APPE AL)-XXV , NEW DELHI ( 'CIT A ') IS BAD IN LAW AND ON FACTS AND CIRCUMST ANCE OF THE CASE DESERVES TO BE QUASHED. GROUND NO. 2 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE INTERPRETATION GIVEN BY THE LD. CIT(A) AND ASSESSING OFFICER RELAT ING TO SECTION 80HHC READ WITH EXPLANATION OF THE ACT IS WHOLLY ERRONEOU S, ILLEGAL AND ARBITRARY. 2.2 THAT, LD. CIT(A) AND ASSESSING OFFICER HAS ERR ED IN LAW AND FACT IN CONSIDERING ONLY THE GROSS INTEREST RECEIVED IGN ORING THE FACT THAT APPELLANT HAS ALREADY TAKEN THE NET BALANCE OF THE INTEREST ACCOUNT IN THE RETURN OF INCOME. THEREFORE CONFIRMING THE ADDITION IS WHOLLY ILLEGAL UNTENABLE AND UNJUSTIFIED. 2.3 THAT, LD. CIT(A) AND ASSESSING OFFICER HAS ERR ED IN LAW AND HAS FAILED TO APPRECIATE THE LAW LAID DOWN BY HON'BLE S UPREME COURT WITH REGARD TO RECEIPTS (INTEREST) PAID ADJUSTMENT AGAIN ST THE PAYMENT (INTEREST) WHICH IS INTRINSICALLY CONNECTED WITH EA CH OTHER. THEREFORE, APPEAL ORDER PASSED BY LD. CIT (A) OFFICER IS LIABL E TO BE QUASHED. 2.4 LD. CIT(A) AND ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT BOTH INTEREST RECEIVED FROM BANK AND INTEREST PAID TO BA NK ARE MUTUALLY I.T.A .NO.-2797/DEL/2008 2 DEPENDENT TRANSACTIONS THEREFORE CONSIDERATION OF G ROSS INTEREST FOR THE PURPOSES OF CALCULATION 80HHC IS ARBITRARY, AND IS AGAINST THE ESTABLISHED PRINCIPAL OF LAW. 2.5 THAT, CIT(A) AND LD. ASSESSING OFFICER ERRED I N LAW BY IGNORING THE TRUE NATURE OF TRANSACTION AND ENTRIES OF INTEREST ACCOUNT MADE IN THE BOOKS OF ACCOUNT OF THE APPELLANT AS SA ME WERE PRODUCED DURING ASSESSMENT PROCEEDINGS. THEREFORE CALCULATIO N OF DEDUCTION U/S 80HHC ON ACCOUNT OF GROSS INTEREST RECEIVED IS ILLE GAL. HENCE APPEAL/ ASSESSMENT ORDER PASSED IS LIABLE TO BE QUASHED. 2.6 THAT, CIT(A) AND LD. ASSESSING OFFICER HAS ERR ED BOTH ON FACTS AND LAW IN BIFIGURATING THE ASSESSEE INCOME INTO TW O PARTS WITHOUT APPRECIATING THE PAYMENTS & RECEIPTS OF INTEREST IS CLOSELY INTERCONNECTED, INTERDEPENDENT & INTERLINKED AS ONE SOURCE OF BUSINESS INCOME I.E. EXPORT BUSINESS. THUS BOTH ON FACTS & LAW THE LD. CIT(A) AND ASSESSI NG OFFICER HAS ERRED IN TAXING THE APPELLANTS INCOME UNDER TWO DIFFERENT HEADS INSTEAD OF ONE HEAD OF BUSINESS. GROUND NO.3 3.1. THAT ON THE FACTS AND IN CIRCUMSTANCE OF THE CASE LD 'CIT(A)' HAS ERRED DISALLOWING THE BUSINESS PROMOTION EXPENSES O F RS. 2,33,205/- IGNORING THE FACT THAT NATURE OF BUSINESS CANNOT BE RUN WITHOUT SUCH EXPENSES AND HENCE DISALLOWANCE OF EXPENSES ON PRES UMPTION BASIS IS ARBITRARY AND LIABLE TO BE DELETED. GROUNDNO.4 4.1 THAT ON THE FACTS LAW AND CIRCUMSTANCES OF TH E CASE LD ' CIT A ' HAS ERRED IN DISALLOWING THE DEDUCTION U/S 8OHHC ON PROFIT ON SALE OF DEPB WITHOUT APPRECIATING THE FACT THE SCHEME OF IN CENTIVES HAS BEEN INTRODUCED TO EXTEND THE BENEFITS TO EXPORTERS NOT TO HARM THE INTEREST OF EXPORTERS, INTERPRETATION GIVEN BY THE LD 'CITA' HA S RESULTED MISCARRIAGE OF JUSTICE HENCE ARBITRARY, ABSURD RETROSPECTIVE PR OVISO (THIRD PROVISO TO SECTION 80 HHC (3)) IS ULTRAVIRES TO THE FUNDAMENTA LS RIGHTS PROVIDED UNDER CONSTITUTION ENTIRE ADDITION IS LIABLE TO BE DELETED. 4.2 THAT ON THE FACTS, LAW AND CIRCUMSTANCES OF THE CASE LD 'CITA' HAS ERRED IN DISALLOWING THE DEDUCTION U/S 80 HHC INSPI TE OF THE FACT THAT DEPB INCOME IS BUSINESS INCOME ELIGIBLE FOR DEDUCTI ON U/S 80 HHC HENCE ADDITION OF DEPB IS DISCRIMINATORY, UNJUST, U NFAIR, AND VIOLATION OF PRINCIPLE OF LAW THEREFORE ADDITION NEEDS TO BE DEL ETED. 4.3 THAT, ON THE FACTS, LAW AND CIRCUMSTANCES OF TH E CASE LD 'CITA' HAS FAILED TO APPRECIATE THAT DEPB ENTITLEMENT IS GIVEN TO EXPORT OF MERCHANDISE OF GOODS ENABLING THE EXPORTER TO COMPE TE THE GLOBAL ENVIRONMENT OF ITEMS SOLD UNDER FOREIGN TRADE DEVEL OPMENT ACT 1992 AND DUTY DRAW BACK IS ALSO GIVEN UNDER SAME ACT HEN CE BOTH INCOMES IS DIRECTLY RELATED TO EXPORTS AND SAME IS REPLACED BY THE EARLIER SCHEME/CLAUSE OF FOREIGN TRADE DEVELOPMENT REGULATI ON ACT 1992 ACT HENCE PROVISION OF SECTION 8(1) OF GENERAL CLAUSES ACT ARE APPLICABLE RESULTING PROFIT ON THE SALES OF DEPB IS ELIGIBLE F OR PROFITS AS EXEMPTED IN CLAUSE (B) TO SECTION 80 HHC (3). 4.4 THAT ON THE FACTS, LAW AND CIRCUMSTANCES OF THE CASE LD 'CITA' HAS FAILED TO APPRECIATE THAT RULE OF 'EJUSDUM GENERIS IS APPLICABLE IN THE I.T.A .NO.-2797/DEL/2008 3 CASE OF DEPB ENTITLEMENT HENCE DEDUCTION U/S 80HHC BE ALLOWED DEPB. 4.5 THAT ON FACTS, LAW AND CIRCUMSTANCES OF THE CAS E LD. CIT(A)' HAS PARTIALLY ALLOWED THE GROUND AND REFERRED THE DEPB INCOME ISSUE TO THE LD ASSESSING OFFICER HENCE APPELLANT PRAYS TO HEAR THE DEPB ISSUE AFTER THE FINAL OUT COME OF THE ISSUE HEARD BY THE LD ASS ESSING OFFICER. GROUND NO. 5 5.1 THAT IN THE FACTS, LAW AND CIRCUMSTANCES OF TH E CASE LD 'CIT(A)' HAS ERRED ON DISALLOWING THE DEDUCTION 80 HHC ON IN CENTIVE RECEIVED FROM TEA BOARD. INSPITE OF THE FACT THAT INCENTIVES ARE HELD AS BUSINESS INCOME U/S 28 (IV) AND SAME IS RECEIVED AS A RESULT OF EXPORT OF TEA ETC. AND COVERER AS OTHER RECEIPT AS MENTIONED IN EXPLAN ATION (BOA) TO SECTION 80 HHC (IV) HENCE DEDUCTION U/S 80HHC BE ALLOWED. GROUND NO.6 6.1 THAT , IN THE LAW , FACTS AND CIRCUMSTANCES OF THE CASE LD 'CIT A' HAS ERRED EXCLUDING THE TURNOVER OF RS 1,69,18,676/ FROM THE EXPORT TURNOVER MERELY NON- FILING OF CERTIFICATE FROM COM PETENT AUTHORITY FOR EXTENSION OF TIME U/S 80 HHC(2)(9) IGNORING THE FAC T THAT OBJECT OF THE SECTION 80HHC IS TO BOOST THE FOREIGN EXCHANGE AND EXPORT SALE HAS ALREADY BEEN REALIZED AND RECEIVED IN INDIA AND NOW RBI HAS TO GRANT THE ABOVE CERTIFICATE WHICH PENDING FOR CONSIDERATION S TATUTORY AUTHORITIES HENCE APPELLANT WAS PREVENTED FROM REASONS BEYOND H IS CONTROL THEREFORE DISALLOWANCE OF DEDUCTION U/S 80 HHC DUE TO EXCLUSI ON OF TURNOVER OF RS 1,69,18,676 IS LIABLE TO BE DELETED. 6.2 THAT IN THE LAW, FACTS AND CIRCUMSTANCES OF TH E CASE LD 'CITA' HAS ERRED IN THE EXCLUDING EXPORT TURNOVER OF RS 1,69,1 8,676 IGNORING THE FACT THAT GOODS WERE EXPORTED OUT OF INDIA. THROUGH VARI OUS PRESCRIBED AUTHORITIES AND IT IS BEYOND DOUBT THAT GOODS WERE EXPORTED OUT OF INDIA AND SALE PROCEEDS HAS ALREADY BEEN RECEIVED IN INDI A THEREFORE ONLY REALIZATION EXTENSION WAS TO BE ALLOWED BY THE RBI IN SUCH CASES TIME EXTENSION MAY KINDLY BE TREATED AS DEEMED TO BE ALL OWED. 6.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E REQUIRED CERTIFICATE FROM COMPETENT AUTHORITY IS TO BE RECEIVED SHORTLY HENCE RS 1,69,18,676.00 TO BE INCLUDED IN THE EXPORT TURNOV ER AND ACCORDINGLY DEDUCTION U/S 80HHC BE MODIFIED. 6.4 THAT, ON THE FACTS, LAW AND CIRCUMSTANCES OF T HE CASE LD 'CIT(A)' HAS REFERRED BACK THE ISSUE OF OBTAINING TIME EXTEN SION OF THE EXPORT PROCEEDS TURNOVER TO THE LD ASSESSING OFFICER HENCE APPELLANT PRAYS TO HEAR THE ISSUE AFTER THE FINAL OUT COME OF THE ISSU E HEARD BY THE LD ASSESSING OFFICER. GROUND NO.7 7.1 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E LD 'CITA' HAS FAILED TO APPRECIATE THAT DONATIONS TO CHARITABLE T RUST HAS BEEN GIVEN IN THE PREVIOUS YEARS ALSO AND DONOR'S TRUSTS HAS APPL IED AND GIVEN REQUISITE EXEMPTION CERTIFICATES HOWEVER IN THE YEA R UNDER ASSESSMENT DONATION WAS GIVEN ON THE PREMISES THAT THEY WILL A LSO ITS EXEMPTION CERTIFICATE. BUT IT IS ONLY WE HAVE COME TO KNOW TH AT EXEMPTION HAS BEEN GRANTED BELATE1Y HENCE DONATION MAY KINDLY BE TREAT ED AS BONAFIDE DONATION AND ELIGIBLE U/S 80 G AND ADDITION BE DELE TED. 8 THAT INTEREST CHARGED U/S 234B, C &D IS ILLEGAL AND UNWARRANTED I.T.A .NO.-2797/DEL/2008 4 LIABLE TO BE DELETED HENCE CONFIRMING THE ADDITION ON THIS ISSUE IS LIABLE TO BE DELETED. 9 THAT THE APPELLANT CRAVES TO LEAVE, TO ADD, TO AM END, TO ALTER, TO DELETE ANY OF THE GROUNDS OF APPEAL BEFORE THE APPE AL IS HEARD AND DISPOSED OFF FINALLY BY THE APPELLATE AUTHORITY. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A PROPRIETOR OF M/S JFK INTERNATIONAL AS PER THE ASSESSMENT ORDER AND I S ENGAGED IN THE BUSINESS OF EXPORT OF TEA, COFFEE ETC. BEING AN EXPORTER, THE ASSESSEE HAS ALSO CLAIMED DEDUCTION U/S 80HHC ALONG WITH NECESSARY CERTIFICAT E OF CHARTERED ACCOUNTANT FURNISHED ALONGWITH THE RETURN WHEREIN AN INCOME OF ` 1,59,88,260/- WAS DECLARED. THE AO IN THE SCRUTINY ASSESSMENT MADE V ARIOUS ADDITIONS AS SUCH THE TOTAL INCOME OF ASSESSEE WAS ASSESSED AT ` 3,10,31,899/-. THESE WERE ASSAILED IN APPEAL BEFORE THE CIT(A) AND QUA THE RELIEF DENIED BY WAY OF SUSTAINING THE ADDITIONS MADE BY THE AO, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE ABOVE-MENTIONED GROUNDS. 3. GROUND NO-1 & 9 RAISED BY THE ASSESSEE BEING GEN ERAL REQUIRE NO ADJUDICATION; GROUND NO-8 IS CONSEQUENTIAL. QUA TH E 2 ND GROUND AGITATED BY THE ASSESSEE, THE STAND OF BOTH THE PARTIES BEFORE THE BENCH WAS THAT THE ISSUE MAY BE RESTORED AS THE ITAT IN THE EARLIER YEARS HAD REMAN DED THE ISSUE BACK TO THE FILE OF THE AO WITH SPECIFIC DIRECTIONS TO CONSIDER THE FACTS. ATTENTION WAS INVITED TO ITA NO.-3248/DEL/2004 IN 2000-01 ASSESSMENT YEAR TH E ITAT WHILE DECIDING THE DEPARTMENTAL APPEAL REMANDED THE ISSUE BACK TO THE FILE OF THE AO. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS ADVANCED BY THE PAR TIES BEFORE THE BENCH, THE ISSUE IS RESTORED TO THE FILE OF THE AO WITH THE DIRECTIO N TO DECIDE THE SAME IN ACCORDANCE WITH LAW. 4. THE FACTS QUA THE SECOND ISSUE AGITATED BY THE A SSESSEE IN GROUND NO-3 PERTAINING TO BUSINESS PROMOTIONS EXPENSES, IT IS S EEN ARE FOUND RECORDED AT PAGE 16 PARA 9. A PERUSAL OF THE SAME SHOWS THAT BUSINE SS PROMOTION EXPENSES WERE CLAIMED TO HAVE BEEN INCURRED OF ` 11,66,028/-ON HOTEL/RESTAURANT BILLS, GIFTS ETC. THE AO DISALLOWED 20% OF THE SAME IN THE ABSENCE OF LOG BOOK ON ACCOUNT OF I.T.A .NO.-2797/DEL/2008 5 PERSONAL NATURE RESULTING IN AN ADDITION OF ` 2,33,205/-. THE ASSESSEE CONTENDED BEFORE THE CIT(A) THAT THE EXPENSES WERE FULLY VOUC HED AND ON NECESSITY OF THE SAME CONTENDED THAT THE VERY NATURE OF BUSINESS IN WHICH THE ASSESSEE IS ENGAGED WITHOUT INCURRING SUCH EXPENDITURE, IT CANNOT BE R UN. NOT CONVINCED WITH THE ARGUMENTS ON BEHALF OF THE ASSESSEE, THE ACTION OF THE AO WAS UPHELD BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE HAS NOT DENI ED THE PRESENCE OF PERSONAL ELEMENT AND HAS NOT IDENTIFIED ITS EXTENT EITHER. AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. WHEREAS THE LD. AR CONTENDS THAT NO SUCH EXPENDITURE HAS BEEN DISALLOWED IN THE PAST AND THE EXPENSES WERE FULLY VOUCHED. LD. SR. DR STATED THAT THE ASSESSEE HAS NOT ARGUED THAT THERE WAS NO PERSONAL ELEMENT IN THE SAID EXPENDITURE. ACCORDINGLY AFTER HEARING BOTH THE SIDES THE PARTIES LEFT IT TO THE WISDOM OF THE BENCH TO ESTIM ATE ON FACTS THE DISALLOWANCE. AFTER HEARING BOTH THE PARTIES WE RESTRICT THE DISA LLOWANCE TO 10% UPHOLDING THE DEPARTMENTAL STAND THAT DISALLOWANCE WAS CALLED FOR IN THE FACE OF NO ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE THAT THERE WAS N O PERSONAL ELEMENT. HOWEVER DISALLOWANCE OF 10% WAS HELD TO BE REASONABLE AS PR OPOSED BY THE ASSESSEE AND ACCEPTED BY THE DEPARTMENT. ACCORDINGLY THE ADDITI ON MADE BY WAY OF DISALLOWANCE ON ACCOUNT OF PERSONAL ELEMENT OF THE BUSINESS PROMOTION EXPENSES IS RESTRICTED TO 10%. GROUND NO-3 OF THE ASSESSEE IS ACCORDINGLY PARTLY ALLOWED. 5. QUA GROUND NO-4, THE COMMON STAND OF THE PARTIES BEFORE THE BENCH WAS THAT THE ISSUE MAY BE REMANDED TO THE AO. A PERUSA L OF THE IMPUGNED ORDER SHOWS THAT THE AO HAS BEEN REQUIRED TO RE-WORK THE DEDUCTION ON THE BASIS OF THE POINTS ADJUDICATED IN THE IMPUGNED ORDER. SINCE NO INFIRMITY IN THE DIRECTIONS GIVEN HAS BEEN POINTED OUT, GROUND NO-4 IS RESTORED TO THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER. 6. THE FACTS QUA GROUND NO-5 ARE FOUND DISCUSSED IN PARA 6 OF THE IMPUGNED ORDER. THE CIT(A) VIDE PARA 6.4 UPHOLDS THE ACTION OF THE AO IN NOT INCLUDING THE INCENTIVE RECEIVED FROM THE TEA BOARD WHILE CO MPUTING THE DEDUCTION U/S I.T.A .NO.-2797/DEL/2008 6 80HHC. ON THE SAID ISSUE, LD. AR PLACED RELIANCE O N THE JUDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF HERO EXPORTS VS. CIT[2007] 295 ITR 454 (SC) AND ACIT VS PRATIBHA SYNTEX LTD. (1999) 63 TTJ 409 (AHD.). 6.1. INVITING ATTENTION TO PAGE 17-22 OF THE PAPER BOOK DATED 16.12.2009 WHICH CONTAINS A SCHEME OF TEA BOARD INCENTIVE, IT WAS SU BMITTED THAT THE CLAIM OF THE ASSESSEE DESERVES TO BE ALLOWED. ATTENTION WAS INV ITED TO THE FACT THAT THE ASSESSEE HAS RECEIVED THE SAID EXPORT INCENTIVE OF ` 4,86,762/- FROM THE TEA BOARD DEMONSTRATED BY THE LETTER DATED 30.03.2002, COPY PLACED AT PAGE 19 WHICH ACKNOWLEDGES THIS FACT. ATTENTION WAS ALSO INVITED TO THE SCHEME UNDER WHICH IT WAS PAID COPY OF WHICH IS PLACED AT PAGES 20-22 OF THE PAPER BOOK. IT WAS HIS PRAYER THAT THE HONBLE APEX COURT HAD HELD IN THE CASE OF HERO EXPORTS VS CIT 295 ITR 454 (SC) THAT THE CALCULATION FOR AN EXPORT ER WHO IS A TRADER AND AN EXPORTER WHO IS A MANUFACTURER ARE ENTIRELY DIFFE RENT AND DISTINGUISHABLE. THE TEA INCENTIVE IT WAS SUBMITTED IS RELATED TO ASSESS EES EXPORTS AND THE ASSESSEE BEING A TRADER IN TEA EXPORT AND THE CALCULATION MU ST BE IN LINE WITH THE DIRECTIONS IN SAID JUDGEMENT OF THE HONBLE APEX COURT. THE L D. SR. DR PLACED RELIANCE UPON THE IMPUGNED ORDER HOWEVER NO CONTRARY DECISIO N AS OPPOSED TO THE JUDGEMENT RELIED UPON BY THE ASSESSEE WAS PLACED BE FORE THE BENCH FOR A CONTRARY VIEW. IN THE LIGHT OF THE SUBMISSIONS ADVANCED, CO NSIDERING THE POINT AT ISSUE WE DEEM IT APPROPRIATE TO RESTORE THE ISSUE BACK TO TH E FILE OF THE AO WHO SHALL CONSIDER THE SPECIFIC SCHEME OF THE TEA BOARD INCEN TIVE LOOKING AT THE NATURE OF THE ASSESSEES BUSINESS AND DECIDE THE ISSUE IN THE LIGHT OF THE PRINCIPLE LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF HERO EXPOR TS (CITED SUPRA) BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. GROUND NO-5 RAISED BY THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. 7. QUA THE NEXT ISSUE AGITATED BY THE ASSESSEE IN T HE PRESENT PROCEEDINGS AGITATED BY THE GROUND NO-6, THE LD. AR SUBMITTED T HAT THE CIT(A) HAD DIRECTED THE AO TO VERIFY THE DATE OF REALIZATION OF THE INV OICES PERTAINING TO THE YEAR I.T.A .NO.-2797/DEL/2008 7 RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION WHICH WERE PENDING REALIZATION AS ON 30.09.2003 AND CONSIDER ONLY THOS E WHERE PERMISSION WAS ALLOWED BY THE COMPETENT AUTHORITY AS PART OF THE E XPORT TURN OVER. THE INVOICES THAT DID NOT PERTAIN TO THE YEAR RELEVANT TO THE AS SESSMENT YEAR 2003-04 AND THOSE INVOICES IN RESPECT OF WHICH THE REQUISITE CERTIFIC ATES FROM RBI WERE NOT PROVIDED WERE IGNORED AS PER PARA 7.3.5 OF THE IMPU GNED ORDER. IT WAS HIS STAND THAT IN VIEW OF THE FACT THAT THE ASSESSEE HAS BEEN GRANTED NECESSARY RELIEF ON VERIFICATION FROM THE AO, HE DOES NOT WANT TO PRESS THE SAID GROUND. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS ADVANCE D, GROUND NO-6 RAISED BY THE ASSESSEE IS DISMISSED AS NOT PRESSED. 8. THE FACTS QUA GROUND NO-7 AGITATED BY THE ASSESS EE SHOW THAT THE AO DISALLOWED THE CLAIM OF ` 2,50,000/- MADE U/S 80G ON ACCOUNT OF DONATION TO S.K.CHAUDHARY EDUCATIONAL TRUST ON THE GROUND THAT THE SAID TRUST DID NOT HAVE 80G REGISTRATION IN THE RELEVANT YEAR. IN APPEAL B EFORE THE CIT(A) IT WAS SUBMITTED THAT EXEMPTION HAD SINCE BEEN GRANTED BY THE DIT(E) AND COPY OF THE ORDER U/S 80 G DATED 03.07.2000 WAS FILED. ON CONS IDERING THE SAME, IT WAS NOTICED THAT 80G EXEMPTION WAS NOT AVAILABLE FOR TH E SAID YEAR. IN THE LIGHT OF THESE FACTS THE SUBMISSION ON BEHALF OF THE ASSESSE E BY THE LD. AR WAS THAT THE SAID TRUST HAS SINCE RECEIVED U/S 80G REGISTRATION AND THE ISSUE MAY BE RESTORED FOR VERIFICATION. THE LD. SR. DR PLACED RELIANCE U PON THE IMPUGNED ORDER. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE PECULIAR FACTS AND CIRCUM STANCES OF THE CASE, WE DEEM IT APPROPRIATE TO RESTORE THE SAID ISSUE BACK TO THE F ILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER ASC ERTAINING WHETHER THE SAID EDUCATIONAL TRUST HAD 80G REGISTRATION FOR THE RELE VANT PERIOD OR NOT. ACCORDINGLY GROUND NO-7 RAISED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. I.T.A .NO.-2797/DEL/2008 8 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD AUGUST OF 2013. SD/- SD/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 23/08/2013 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI