Shri Ramesh Chandra S.Patel, Ahmedabad V. Dy.Commissioner of Income Tax(OSD)-I, Ahmedabad

ITA 3500/AHD/2014

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6310 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 30-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Reopening of assessment
• Section: 143(3); 80HHC; 80IA; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NOS. 3500 & 3501/AHD/2014 (ASSESSMENT YEARS : 2002-03 & 2003-04) SHRI RAMESHCHANDRA S. PATEL, 501, SHIKAR, NEAR NAVRANGPURA RLY. CROSSING, NAVRANGPURA, AHMEDABAD-380 009. VS. DCIT (OSD)-I, CIRCLE 4, (NOW RE- DESIGNATED AS CIRCLE 2(1)(1)) AHMEDABAD. [ PAN NO. AEHPP 6335 A ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI TUSHAR HEMANI, A.R. RESPONDENT BY : SHRI S. K. DEV, SR. D.R. DATE OF HEARING 18.07.2019 DATE OF PRONOUNCEMENT 18.10.2019 O R D E R PER MS. MADHUMITA ROY - JM: BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE COMMON ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APP EALS)-VIII, AHMEDABAD DATED 30.10.2014 UNDER SECTION 254 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) ARISING OUT OF THE ORDER DATED 23.05.2013 PASSED BY THE DCIT (OSD)-I, CIRCLE-4, AHMEDABAD FOR THE ASSES SMENT YEARS 2002-03 & 2003-04. SINCE BOTH THE APPEALS RELATE TO THE SAME ASSESSEE, THE SAME ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER. ITA NOS. 3500 & 3501/AHD/2014 SHRI RAMESHCHANDRA S. PATEL ASST.YEARS 2002-03 & 2003-04 - 2 - 2. THE BRIEF FACTS LEADING TO THIS CASE IS THIS THA T THE ASSESSEE, AN INDIVIDUAL PROPRIETOR OF M/S. MANISH CHEMICALS, ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF DYES, CHEMICALS, ETC. F ILED RETURN ITS OF INCOME ON 25/10/2002 DECLARING TOTAL INCOME OF RS.86,17,902/- AFTER CLAIMING DEDUCTION UNDER CHAPTER VIA I.E. U/S. 80HHC RS. 2,30,84,239/- , U/S. 80IA RS.94,61,615/- AND U/S. 80L FOR RS.9,000/-. THE AO FINALIZED THE ASSESSMENT FOR A.Y. 2002-03 VIDE ORDER U/S. 143(3) DATED 30/3/ 2005 DETERMINING TOTAL INCOME AT RS.1,36,94,580/-. THE SAID ASSESSMENT WAS A SUBJECT MATTER OF APPEAL BEFORE THE CIT(A) AND THE ITAT. AS PER THE ORDER DA TED 31/12/2007 GIVING EFFECT TO THE ORDER OF THE ITAT, TOTAL INCOME OF TH E ASSESSEE FOR THE ASSESSMENT YEAR UNDER APPEAL WAS DETERMINED AT RS. 2,05,62,228 /-. IN THE SAID ORDER, THE AO HAD ADOPTED THE FIGURE OF DEDUCTION U/S.80HHC AT RS.1,53,99,563/- WHICH WAS RECOMPUTED ON THE BASIS OF THE REASONING GIVEN IN THE ORDER U/S. 143 (3) R.W.S. 147 DATED 31/12/2007. BUT THE SAID REOPENING OF ASSESSMENT U/S 143(3) R. W.S. 147 WAS ULTIMATELY QUASHED BY THE HONBLE ITAT UNDER ITS OR DER DATED 24.01.2013 IN ITA NO.432 & 648/AHD/2009, THUS THE ORDER U/S 143(3 ) R.W.S. 147 DATED 31.12.2007 WHEREBY AND WHEREUNDER THE ASSESSEE WAS DENIED THE BENEFIT OF THE PROVISION OF SECTION 80HHC OF THE ACT STANDS CANCEL LED AS THE CASE MADE OUT BY THE LEARNED ADVOCATE APPEARING FOR THE ASSESSEE BEFORE US. SUBSEQUENTLY, THE ASSESSING OFFICER BY AND UNDER AN ORDER DATED 2 3.05.2013 U/S 254 WHILE GIVING EFFECT TO THE ORDER OF THE LEARNED ITAT DETE RMINED THE TOTAL INCOME OF RS.2,05,62,228/- IN TERMS OF THE ORDER DATED 31.12. 2007. IT IS RELEVANT TO MENTION THAT IN THE SAID ORDER THE LEARNED AO HAS W ORKED OUT THE AMOUNT OF DEDUCTION U/S 80HHC AT RS.1,53,99,563/-. IN FACT, O N THE SAME DATE OF 31.12.2007, THE LEARNED AO HAS PASSED ANOTHER ORDER U/S 143(3) R.W.S. 147 OF THE ACT FOR THE A.Y. 2002-03 WHEREIN THE ASSESSEE H AS BEEN DENIED THE BENEFIT ITA NOS. 3500 & 3501/AHD/2014 SHRI RAMESHCHANDRA S. PATEL ASST.YEARS 2002-03 & 2003-04 - 3 - OF DEDUCTION U/S 80HHC IN RESPECT OF DEPB. BY BOTH THE ORDERS PASSED BY THE LEARNED AO DATED 31.12.2007 AND 23.05.2013 SUCH BEN EFIT OF DEDUCTION U/S 80HHC IN RESPECT OF INCOME BY WAY OF SALE OF DEPB L ICENCE HAS BEEN NEGATED BUT SINCE SUCH REOPENING WAS QUASHED BY THE ITAT ON 24.01.2013, THE RE-COMPUTATION OF DEDUCTION U/S 80HHC ON THE LINE O F REASONING GIVEN IN SUCH REASSESSMENT ORDER U/S 143(3) R.W.R. 147 DATED 31.1 2.2007 IS ABSOLUTELY NON- APPLICATION OF MIND AS IT APPEARS FROM THE RECORDS BEFORE US. IT ALSO APPEARS FROM THE RECORDS THAT THE HONBLE ITAT IN ITS ORDER DATED 24.01.2013 FOLLOWED THE JUDGMENT PASSED BY THE HONBLE JURISDICTIONAL H IGH COURT IN THE CASE OF AVANI EXPORTS REPORTED IN 348 ITR 391 IN TERMS OF W HICH THE AUTHORITIES BELOW OUGHT TO HAVE ALLOWED THE DEDUCTION U/S 80HHC ON TH E EXPORT INCENTIVE OF DEPB. NEITHER THE AO, NOR THE LEARNED CIT(A) HAS NO T TOOK INTO CONSIDERATION THIS PARTICULAR ASPECT OF THE MATTER AND HENCE WE ARE OF THE CONSIDERED VIEW TO REMIT THE ISSUE TO THE FILE OF T HE LEARNED AO TO RENDER THE BENEFIT TO THE ASSESSEE UPON MAKING COMPUTATION AFR ESH IN THE LIGHT OF THE OBSERVATIONS MADE HEREINABOVE BY US RESPECTFULLY RE LYING UPON THE JUDGMENT PASSED BY THE JURISDICTIONAL HIGH COURT. THE ADDITI ON, THEREFORE, IS HEREBY DELETED. IN THE RESULT, ASSESSEES APPEAL, IS ALLOW ED FOR STATISTICAL PURPOSES. 3. IN THE RESULT, BOTH THE ASSESSEES APPEALS ARE A LLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 18 / 10 / 201 9 SD/- SD /- ( WASEEM AHMED) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/10/2019 PRITIYADAV, SR.PS ITA NOS. 3500 & 3501/AHD/2014 SHRI RAMESHCHANDRA S. PATEL ASST.YEARS 2002-03 & 2003-04 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-VIII, AHMEDABAD. 5. , ! ', #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 17.10.2019 (DICTATION PAGES 3) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 17.10.2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 17.10.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER