Saibaba Export, Surat V. The Income tax Officer, Ward-2(3), Surat

ITA 2910/AHD/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1818 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-12-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 26-12-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: RAISESH SHAH
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.2910-2911/AHD/2006 ASSESSMENT YEARS :2002-03 & 2003-04 DRAFTED:17.12.09 SAIBABA EXPORT, SHOP NO.167-168, JASH TEXTILES MARKET, RING ROAD, SURAT PAN NO.AAMFS0589C V/S . INCOME TAX OFFICER, WARD-2(3), SURAT (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI RAISESH SHAH, AR REVENUE BY:- SHRI SHELLEY JINDAL, CIT DR DATE OF ORDER RESERVED: 08/12/2009 O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THESE TWO APPEALS BY THE ASSESSEE ARE ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II, SURAT IN A PPEAL NO.CAS/II/51-52/2006-07 DATED 10-10-2006. THE ASSESSMENTS WERE FRAMED BY TH E INCOME TAX OFFICER, WARD- 2(3) SURAT U/S.143(3) R.W.S. 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 23-02-2006 FOR T HE ASSESSMENT YEARS 2002-03 AND 2003-04 RESPECTIVELY. 2. THE ONLY COMMON ISSUE IN BOTH APPEAL OF THE ASSE SSEE IS AS REGARDS TO THE TREATMENT OF DEPB INCENTIVE FOR THE PURPOSES OF ALL OWANCE OF DEDUCTION U/S.80HHC OF THE ACT. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING COMMON REVISED GROUND :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING ACTION O F ASSESSING OFFICER IN ALLOWING DEDUCTION UNDER SECTION 80HHC OF RS.7,23,3 11 INSTEAD OF RS.11,43,490 CLAIMED BY ASSESSEE FOR ASSESSMENT YEA R 2002-03 AND RS. NIL INSTEAD OF RS.1,98,63,985 CLAIMED BY ASSESSEE FOR A SSESSMENT YEAR 2003-04. ASSESSING OFFICER HAS ERRED IN COMPUTING DEDUCTION U/S.80HHC BY TAKING SALES CONSIDERATION OF DEPB INSTEAD OF PROFIT ON SA LE OF DEPB ITA NO.2910-11/AHD/2006 A.YS. 2002-03 & 2003-04 SAIBABA EXPORT V. ITO WD-2(3) SRT PAGE 2 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY THE MUMBAI SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS V. ITO (2009) 318 ITR (AT) 87 (MUM) (SB), WHEREIN IT IS HELD THAT ONLY THE NET PROFIT O F DEPB SHOULD BE EXCLUDED FOR THE PURPOSE OF COMPUTATION OF DEDUCTION U/S.80HHC OF TH E ACT. HE REFERRED TO THE CASE LAW IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND STATED THAT THE ISSUE CAN BE REVERT BACK TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE ISSUE IN TERMS OF TOPMAN EXPORTS (SUPRA). THIS ISSUE OF ASSESSEES APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 18/12/2009 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED :18/12/2009 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-II, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD