ACIT, New Delhi V. M/s. Punjab Stainless Steel Industries, New Delhi

ITA 3620/DEL/2013

• Counselvise Citation: 362020114 RSA 2013
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 1999-2000
• Appeal Filed On: 06-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80HHC; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.3620/DEL/2013 ASSESSMENT YEAR : 1999-2000 ACIT, M/S PUNJAB STAINLESS STEEL LTD., CIRCLE-19 (1), A-70, WAZIRPUR INDUSTRIAL AREA, NEW DELHI. V. NEW DELJI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAAFP AAAFP AAAFP AAAFP- -- -4223 4223 4223 4223- -- -G GG G APPELLANT BY : MS. MEENAKSHI VOHRA, SR. DR. RESPONDENT BY : ADJOURNMENT APPLICATION. ORDER PER TS KAPOOR, AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE O RDER OF LD CIT(A) DARTED 19.2.2013. THE GROUNDS OF APPEALS TAKEN BY TH E REVENUE ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN DELETING DISALLOWANCE MADE OU T OF DEDUCTION U/S 80HHC CLAIMED BY THE ASSESSEE WHICH WAS MAD E BY THE ASSESSING OFFICER U/S 143(3)/148 AS A RESULT OF AMENDMENT OF SECTION 80 HHC(3) WITH RETROSPECTIVE EFF ECT FROM 1.4.1998. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ALL OR ANY OF THE AFORESAID GROUNDS OF APPEAL AND AMEND, ALTER OR ADD ANY OTHER GROUND OF APPEAL. ITA NO3620/DEL/2013 2 2. AT THE TIME OF HEARING, WE FOUND THAT ASSESSEE HAD M OVED AN ADJOURNMENT APPLICATION. HOWEVER, WHILE GOING THRO UGH THE FILE, WE OBSERVE THAT THE ISSUE WAS SQUARELY COVERED AGAINST THE R EVENUE AND THEREFORE APPEAL COULD BE DISPOSED OFF EVEN IN THE A BSENCE OF ASSESSEE OR ITS COUNSEL. 3. THE LD DR WAS ASKED AS TO WHETHER THE ISSUE WAS COVERE D AGAINST THE REVENUE TO WHICH SHE REPLIED IN THE POSIT IVE. THEREFORE, AFTER GOING THROUGH THE RELEVANT MATERIAL, THE ORDE R WAS PRONOUNCED AGAINST REVENUE AND APPEAL WAS DISMISSED. 4. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSING OFFICER HAD REOPENED THE CASE OF ASSESSEE U/S 148 ON THE BASIS OF AN AM ENDMENT IN SECTION 80 HHC(3) WHICH WAS WITH EFFECT FROM 1.4. 1998 AND RESTRICTED THE CLAIM OF ASSESSEE U/S 80HHC. THE LD CIT(A) , HOWEVER, DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER H OLDING THAT THE AMENDMENT WAS NOT APPLICABLE RETROSPECTIVELY AS HE LD BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF ADVANI EXP ORTS & OTHERS V. CIT O(2012) 252 CTR 473. THE RELEVANT FINDINGS OF L D CIT(A) ARE CONTAINED IN PARA 8.2. & 8.3. WHICH ARE REPRODUCED AS UNDER:- 8.2. THE APPELLANT HAS ALSO RELIED UPON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF ADVANI EXP ORTS & OTHERS V. CIT (2012) 252 CTR (GUJ.) 473. IT IS SEEN THAT IT HAS BEEN SPECIFICALLY MENTIONED IN THE FIRST PARA OF THIS JUDGMENT THAT ALL THE WRIT APPLICATIONS WERE TAKEN TOGETHER PURSUANT TO THE ORDER PASSED BY THE SUPREME COURT OF INDIA. BY TH E SAID ORDER, THE APEX COURT HAD TRANSFERRED THESE MATTERS PE NDING BEFORE VARIOUS HIGH COURTS TO THIS COURT FOR CONSIDERIN G WHETHER ITA NO3620/DEL/2013 3 THE SEVERABLE PART OF THE THIRD AND FOURTH PROVISO TO SECTION 80HHC WAS ULTRA VIRES. AFTER DETAILED DISCUSSION THE HON 'BLE HIGH COURT QUASHED THE IMPUGNED AMENDMENT TO THE EXTENT THAT THE OPERATION OF THE AMENDED SECTION COULD BE GIVEN EFFE CT FROM THE DATE OF AMENDMENT AND NOT IN RESPECT OF THE EARLIER ASSESSMENT YEARS IN THE CASE OF ASSESSEE WHOSE EXPORT TURNOVER WAS MO RE THAN ` .10 CRORES. THE CONCLUSION THE ABOVEMENTIONED CASE OF ADVANI EXPO RTS WAS AS UNDER:- AMENDMENT OF SEC. 80HHC(3) BY INSERTION OF CERTAIN C ONDITIONS IN THE THIRD AND FOURTH PROVISO THERETO WITH RETROSPE CTIVE EFFECT BY TAXATION LAWS (SECOND AMENDMENT) ACT, 2005 IS VIOL ATIVE OF ART, 14 OF THE CONSTITUTION AS IT DENIES THE BENEFIT OF DEDUCTION UNDER SECTION 80HHC TO THE CLASS OF ASSESSEES HAVING EXPORT TURNOVER OF MORE THAN `.10 CRORES WHOSE ASSESSMENTS WERE ST ILL PENDING WHILE ALLOWING SUCH BENEFIT TO THE SAME CLASS O F ASSESSEES WHOSE ASSESSMENTS HAVE ALREADY BEEN CONCLUDED, IT IS ALSO INVALID FOR THE REASON THAT ITS RETROSPECTIVE OPER ATION TAKES AWAY THE BENEFIT FROM ONE CLASS OF ASSESSEE, IMPUGNED AMENDMENT IS QUASHED TO THE EXTENT THAT THE OPERATION OF SECTION COULD BE GIVEN EFFECT FROM THE DATE OF AMEND MENT AND NOT IN RESPECT OF EARLIER ASSESSMENT YEARS IN THE CASE OF ASSESSEE WHOSE EXPORT TURNOVER IS MORE THAN ` .10 CRORES. 8.3. IN VIEW OF THE ABOVE, THE RESTRICTION OF DEDUCT ION U/S 80HHC MADE BY THE ORDER U/S 143(3)/148 DATED 29.12.2006 CA NNOT BE SUSTAINED AND IS HEREBY DELETED. ITA NO3620/DEL/2013 4 5. WE FIND THAT THE CASE OF THE ASSESSEE RELATES TO ASSESSM ENT YEAR 1999-00 AND IN VIEW OF THE HON'BLE COURTS JUDGMENT, THE AMENDMENT IS NOT APPLICABLE TO THIS YEAR. THEREFORE,, LD CIT(A) HAS RIGHTLY DECIDED THE CASE IN FAVOUR OF ASSESSEE AND WE DO NOT FIND ANY IN FIRMITY IN THE SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 3RD DAY OF DECEMBER, 2013. SD/- SD/- (DIVA SINGH) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 03.12.2013. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 5.12.2013 DATE OF DICTATION 5.12.2013 DATE OF TYPING 5.12.2013 DATE OF ORDER SIGNED BY 3.10.2013 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED. ITA NO3620/DEL/2013 5