M/s. Sunstar Overseas Ltd, New Delhi V. DCIT, New Delhi

ITA 2923/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1267 (ITAT-DELHI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 18-11-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 17-06-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GAJANAND MEENA
• Assessee Lawyers: SOBRAM LAL
• Keywords: Opportunity of being heard; Set aside
• Section: 80HHC; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER AND ITA NO.2923/DEL./2009 (ASSESSMENT YEAR : 2004-05) M/S SUNSTAR OVERSEAS LTD., VS. DCIT, CIRCLE 9, 4119/7, FIRST FLOOR, NEW DELHI. NAYA BAZAR, NEW DELHI. (PAN/GIR NO.AAACS9693J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SOBRAM LAL. REVENUE BY : SHRI GAJANAND MEENA, CIT(DR) ORDER PER A.K. GARODIA, AM THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF CIT(A)-XII,NEW DELHI DATED 9.3.2009 FOR ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS OF APPEAL, BUT THE ASSESSEE HAS ONLY TWO GRIEVANCES. ONE GRIEVANCE IS REGARDING ALL OWING OF LESSER AMOUNT OF DEDUCTION U/S 80HHC ON ACCOUNT OF REDUCING OF 90% OF DEPB REC EIPT FROM BUSINESS PROFIT. THE SECOND GRIEVANCE IS REGARDING CHARGING OF INTEREST U/S 234B & 234C OF THE INCOME-TAX ACT, 1961. 3. REGARDING THE FIRST ISSUE, WE FIND THAT HIS ISSU E IS NOW TO BE DECIDED BY THE ASSESSING OFFICER AFRESH IN THE LIGHT OF THE DECISI ON OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPORTS VS. ITO AS R EPORTED IN 318 ITR (AT) 87 (MUM.)(SB). IN THE PRESENT CASE, ADMITTEDLY, THE EXPORT TURNOVER OF THE ASSESSEE IS MORE THAN RS.10 CRORE, BUT AS PER THIS DECISION OF THE S PECIAL BENCH OF THE TRIBUNAL ONLY, PROFIT ON SALE OF DEPB IS COVERED BY SECTION 28(IIID) OF T HE ACT AND THE SAME HAS TO BE DETERMINED AS EXCESS OF SALE PROCEEDS OF DEPB OVER THE FACE VALUE OF DEPB AND ONLY 90% OF SUCH PROFIT IS REQUIRED TO BE EXCLUDED FROM THE BUSINESS PROFIT FOR THE PURPOSE OF COMPUTING THE AMOUNT OF DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC. SINCE THIS ASPECT HAS TO BE DECIDED AFRESH BY THE ASSESSING OF FICER IN THE LIGHT OF THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL, WE SET ASIDE THE ORD ER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) ON THIS ISSUE AND RESTORE THE MATTER BAC K TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION WITH REGARD TO AMOUNT OF DEDUCTION A LLOWABLE TO THE ASSESSEE U/S 80HHC IN THE LIGHT OF THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL. THE ASSESSING OFFICER WILL PASS NECESSARY ORDER AS PER LAW, AS DISCUSSED ABOVE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. REGARDING THE SECOND ISSUE I.E. CHARGING OF INTE REST U/S 234B & 234C, WE HOLD THAT THIS ISSUE IS CONSEQUENTIAL AND THE ASSESSING OFFICER WILL PASS NECESSARY ORDER AS PER LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING ON 18.11.2009. SD/- SD/- (GEORGE MATHAN) (A.K. GARODIA) JUDICIAL MEMBER. ACCOUNTANT MEMBER DATED, NOV. 18, 2009. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XII, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. BY ORDER (ITAT, NEW DELHI).