Super Tannery Ltd., Kanpur V. DCIT-6, Kanpur

ITA 341/LKW/2011

• Counselvise Citation: 34123714 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 17-12-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 13-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: S K GARG; ASHISH BANSAL S
• Keywords: Opportunity of being heard
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 341/LKW/2011 ASSESSMENT YEAR: 2004 - 05 SUPER TANNERY LTD. 187/170, JAJMAU ROAD KANPUR V. DY. CIT - 6 KANPUR PAN: AAYFS5378K (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: S/SHRI. S. K. GARG & ASHISH BANSAL, ADVOCATES RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 27.12.2013 DATE OF PRONOUNCEMENT: 07.01.2014 O R D E R PER SUNIL K UMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED THE REVISED GROUNDS OF APPEAL AS THE EARLIER GROUNDS OF AP PEAL FILED ALONG WITH THE MEMORANDUM OF APPEAL ARE QUITE EXHAUSTIVE. ACCORDINGLY THE REVISED/CONCISE GROUNDS OF APPEAL FILED BY THE ASSESSEE ARE TAKEN ON RECORD. THROUGH THESE REVISED GROUNDS OF APPEAL, THE ASSESSEE HAS ASSAILED THE ORDER OF THE LD. CIT( A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER: - 1 . BECAUSE SELECTION OF THE APPELLANT'S CASE FOR SCRUTINY ASSESSMENT, NOT BEING IN CONFORMITY WITH THE PROVISIONS CONTAINED IN CLAUSE (II) OF SUB - SECTION (2) OF SECTION 143 OF THE ACT, THE : - 2 - : ASSESSMENT ORD ER DATED 30.11.2006 (PASSED IN PURSUANCE THEREOF) IS VOID AB - INITIO. 2 . BECAUSE FOR 'WANT OF JURISDICTION' AT THE END OF THE DY. CIT TO ISSUE (NOTICE UNDER SECTION 143(2), THE 'RETURN' PROCESSED ON 'RETURNED INCOME' ON 28.02.2005 AMOUNTED TO ASSESSMENT MADE WITH REFERENCE TO THE RETURN FILED ON 28.10.2004 AND 'VARIATION' AS HAD BEEN MADE IN THE ABOVE REFERRED ASSESSMENT ORDER, WHICH INCLUDED SHORT ALLOWANCE OF DEDUCTION UNDER SECTION 80HHC, IS NOT VALID. WITHOUT PREJUDICE TO THE AFORESAID 3. BECAUSE THE AUTHO RITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN EXCLUDING/UPHOLDING THE EXCLUSION OF A SUM OF RS.1,90,95,250 REPRESENTING THE VALUE OF DUTY FREE REPLENISHMENT CERTIFICATE (DFRC) FROM THE COMPUTATION OF ELIGIBLE PROFIT, FOR THE PURPOSES OF ALLOWING DEDUCTION UNDER SECTION 80HHC(3). 4. BECAUSE THE AUTHORITIES BELOW, AFTER HAVING ACCEPTED THAT THE APPELLANT HAD DULY SATISFIED THE CONDITION (A) OF THE FOURTH PROVISO, HAVE ERRED IN LAW AND ON FACTS IN NEGATING THE CLAIM ON THE GROUND THAT CONDITION SPELT OUT IN C LAUSE (B) OF THE SAID VERY PROVISO HAD NOT BEEN SATISFIED. 5. BECAUSE THERE BEING NO NOTIFICATION ISSUED BY THE CENTRAL GOVERNMENT, AS PER EXPLANATION APPEARING BELOW THE FORTH PROVISO TO SUB SECTION (3) OF SECTION 80HHC, THE SECOND CONDITION MENTIONED AT (B) THEREOF, WAS NOT INTENDED TO BE COMPLIED WITH FOR THE TIME BEING AND THE APPELLANT'S CLAIM FOR INCLUSION OF THE SUMS AGGREGATING RS.1,90,95,250/ - IN THE COMPUTATION OF ELIGIBLE PROFITS COULD NOT HAVE BEEN NEGATED ON THE GROUND OF ALLEGED NON FULFILLMEN T OF THE SAME. : - 3 - : 3 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS OPTED NOT TO PRESS GROUNDS NO.1 AND 2. ACCORDINGLY GROUNDS NO.1 & 2 ARE DISMISSED BEING NOTE PRESSED. 4 . WITH REGARD TO GROUNDS NO. 3 TO 5, THE LD. COUNSEL FOR TH E ASSESSEE HAS CONTENDED THAT THE ISSUE WITH REGARD TO COMPUTATION OF DEDUCTION UNDER SECTION 80HHC OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT 'THE ACT') IS REQUIRED TO BE RE - ADJUDICATED IN TERMS OF THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT [2012] 342 ITR 49 (SC). 5 . THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE WAS NOT DISPUTED BY THE LD. D.R. ACCORDINGLY WITH REGARD TO GROUNDS NO.3 TO 5, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES A FRESH ADJUDICATIO N BY THE ASSESSING OFFICER IN THE LIGHT OF THE AFORESAID JUDGMENT OF THE HON'BLE APEX COURT. W E , THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) IN THIS REGARD AND RESTORE THE ISSUE OF COMPUTATION OF DEDUCTION UNDER SECTION 80HHC OF THE ACT TO THE FILE O F THE ASSESSING OFFICER WITH A DIRECTION TO RE - ADJUDICATE THE SAME IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT (SUPRA) AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . ACCORDINGLY, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7.1.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7.1.2014 JJ: 2712 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESP ONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR