DCIT, CHENNAI V. M/s. FFE Minerals (P) Limited, CHENNAI

ITA 315/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61258 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-06-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 14-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Assessee Lawyers: DR ANITA SUMANTH
• Section: 143(3); 80HHC; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER I.T.A. NO. 315/MDS/2012 (ASSESSMENT YEAR : 2002-03) THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE II(1), CHENNAI - 600 034 . (APPELLANT) V. M/S FFE MINERALS (P) LTD., FL SMIDTH HOUSE, 34, EGATOOR, KELAMBAKKAM, RAJIV GANDHI SALAI, TAMILNADU 603 103. PAN : AAACF1122D (RESPONDENT) APPELLANT BY : DR. S. MOHARANA, CIT-DR RESPONDENT BY : DR. ANITA SUMANTH , ADVOCATE DATE OF HEARING : 27.06.2012 DATE OF PRONOUNCEMENT : 27.06.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE REVENUE, ITS GRIEVANC E IS THAT CIT(APPEALS) DELETED THE DISALLOWANCE MADE TOWARDS INDIRECT COST ATTRIBUTABLE TO EXPORT TURNOVER FOLLOWING THE DECIS ION OF THIS TRIBUNAL IN ASSESSEE'S OWN CASE, IN AN APPEAL AGAINST AN ORDER OF CIT UNDER SECTION 263 OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 2 I.T.A. NO. 315/MDS/12 2. SHORT FACTS APROPOS ARE THAT ASSESSEE, ENGAGED I N THE BUSINESS OF DESIGN ENGINEERING AND MANUFACTURING, HAD FILED A R ETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR SHOWING INCOME OF ` 2,79,62,652/-. ASSESSEE HAD MADE A CLAIM OF ` 1,69,86,773/- UNDER SECTION 80HHC OF THE ACT AND THIS WAS ALLOWED. THEREAFTER, CIT NOT ING THAT DEDUCTION UNDER SECTION 80HHC WAS NOT IN ACCORDANCE WITH LAW, PASSED AN ORDER UNDER SECTION 263 OF THE ACT SETTING ASIDE THE ASSE SSMENT DATED 16.2.2005 WITH A DIRECTION TO RECOMPUTE THE DEDUCTI ON UNDER SECTION 80HHC OF THE ACT. ASSESSEE MOVED IN APPEAL AGAINST THIS ORDER OF CIT AND THIS TRIBUNAL, VIDE ITS ORDER DATED 28.7.2011 I N I.T.A. NO. 517/MDS/2008, HELD THAT PROVISIONS OF SECTION 263 O F THE ACT COULD NOT HAVE BEEN INVOKED. THIS TRIBUNAL THUS SET ASIDE TH E ORDER OF CIT. NEVERTHELESS, EVEN BEFORE THE TRIBUNAL ORDER WAS RE CEIVED, THE ASSESSING OFFICER PROCEEDED TO DO A FRESH ASSESSMEN T AND COMPLETED IT UNDER SECTION 143(3) READ WITH SECTION 263 OF THE A CT. 3. ASSESSEE MOVED IN APPEAL BEFORE CIT(APPEALS), AG AINST THE RE- ASSESSMENT DONE UNDER SECTION 143(3) READ WITH SECT ION 263 OF THE ACT. THE CIT(APPEALS) HELD THAT SINCE THE ORDER UNDER SE CTION 263 OF THE ACT DID NOT SURVIVE, THE APPEAL OF THE ASSESSEE HAD TO BE ALLOWED. 3 I.T.A. NO. 315/MDS/12 4. NOW BEFORE US, LEARNED D.R. SUBMITTED THAT ORDER OF THE TRIBUNAL IN I.T.A. NO. 517/MDS/2008 HAD BEEN ASSAILED BY THE RE VENUE BEFORE THE JURISDICTIONAL HIGH COURT AND THE DECISION OF JURIS DICTIONAL HIGH COURT WAS AWAITED. 5. PER CONTRA, LEARNED A.R. SUBMITTED THAT REVENUE HAD TAKEN A GROUND IN WHICH IT WAS MENTIONED THAT MERITS OF THE ISSUE WAS NOT CONSIDERED BY THIS TRIBUNAL IN ITS ORDER DATED 28.7 .2011 IN I.T.A. NO. 517/MDS/2008 AND THIS WAS NOT CORRECT. 6. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THERE IS NO DISPUTE THAT ORDER OF THE CIT UNDER SEC TION 263 PURSUANT TO WHICH AN ASSESSMENT WAS DONE BY THE ASSESSING OFFIC ER, STANDS QUASHED BY THIS TRIBUNAL BY ITS ORDER DATED 28.7.20 11 IN I.T.A. NO. 517/MDS/2008. THEREFORE, THE VIEW OF THE CIT(APPEA LS) HOLDING THAT ASSESSMENT DONE PURSUANT TO ORDER UNDER SECTION 263 , DOES NOT SURVIVE IS CORRECT. WE DO NOT FIND ANY REASON TO INTERFER E WITH THE ORDER OF CIT(APPEALS). WE ALSO FIND THAT THIS TRIBUNAL IN I .T.A. NO. 517/MDS/2008 HAD DEALT WITH MERITS OF THE CASE AND THEREFORE, TH IS GROUND OF THE REVENUE IS ALSO NOT CORRECT. WITH THESE COMMENTS, WE DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. 4 I.T.A. NO. 315/MDS/12 THE ORDER WAS PRONOUNCED IN THE COURT ON WEDNESDAY, THE 27 TH OF JUNE, 2012, AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 27 TH JUNE, 2012. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-IX, CHENNAI-34 (4) CIT, CHENNAI-34 (5) D.R. (6) GUARD FILE