Gupta International, V. ITO Ward I Panipat,

ITA 3841/DEL/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2268 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-12-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 13-09-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NAMITA
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 3841 /DEL/2007 ASSESSMENT YEAR: 2003-04 GUPTA INTERNATIONAL, VS. INCOME TAX OFFICER, SHIV NAGAR, BEHIND GANDHI MANDI, WARD-1, PANIPAT. PANIPAT (HARYANA) PAN NO. - (APPELLANT) (RESPONDENT) & ITA NO. 1088 /DEL/2008 ASSESSMENT YEAR: 2004-05 GUPTA INTERNATIONAL, VS. INCOME TAX OFFICER, SHIV NAGAR, BEHIND GANDHI MANDI, WARD-1, PANIPAT. PANIPAT (HARYANA) PAN NO. - (APPELLANT) (RESPONDENT) APPELLANT BY : SH. GURJEET SINGH RESPONDENT BY : MRS. NAMITA PANDEY ORDER PER I.P. BANSAL, J.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. TH EY ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT(A) DATED 4 TH JULY, 2007 AND 05.02.08 FOR ASSESSMENT YEARS 2003-04 & 2004-05 RESPECTIVELY. 2. GROUNDS OF APPEAL FOR A.Y. 2003-04 READ AS UNDER : - 1. THAT ORDER OF THE LD. CIT(A) IS AGAINST LAW AND FACTS. ITA NO. 3841/D/07 & ITA NO. 1088/DEL/08 2 2. THAT THE DISALLOWANCE OF CLAIM U/S 80HHC ON DEPB AMOUNT IS ILLEGAL AND UNCALLED FOR. 3. THAT THE DISALLOWANCE OF CLAIM OF THE ASSESSEE U /S 80IB OF I.TAX ACT ON AMOUNT OF DEPB & DUTY DRAWBACK IS ILLEGAL AND UN CALLED FOR. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE G ROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 3. HERE IT CAN BE MENTIONED THAT APPEAL OF THE ASSE SSEE FOR A.Y. 2003- 04 WAS DECIDED BY THIS TRIBUNAL VIDE ORDER DATED 25 TH APRIL, 2008. THE SAID ORDER WAS AGITATED BY THE ASSESSEE BEFORE HONBLE P UNJAB & HARYANA HIGH COURT AND THEIR LORDSHIPS OF PUNJAB & HARYANA HIGH COURT VIDE THEIR ORDER DATED 27.01.09 HAVE RESTORED THAT APPEAL TO THE FIL E OF TRIBUNAL FOR DECISION AFRESH AFTER COST TO THE ASSESSEE OF RS. 11,000/- W HICH WAS TO BE DEPOSITED WITHIN ONE WEEK FROM THE DATE OF ORDER. THE ASSESS EE HAS DEPOSITED THE SAID AMOUNT OF RS. 11,000/-, HENCE THE APPEAL OF TH E ASSESSEE FOR A.Y. 2003-04 IS BEING HEARD ON MERITS AS PER DIRECTIONS OF HONBLE PUNJAB & HARYANA HIGH COURT. 4. IT MAY ALSO BE MENTIONED HERE THAT AFTER RESTORA TION OF THE APPEAL AS PER ORDER OF HONBLE PUNJAB & HARYANA HIGH COURT TH E ASSESSEE HAS RAISED AN ADDITIONAL GROUND FOR A.Y. 2003-04 WHICH IS REGA RDING DEDUCTION U/S 80HHC OUT OF WHICH DEDUCTION GRANTED U/S 80IB HAS B EEN REDUCED AND ASSESSEE IS AGITATING SUCH ACTION OF THE DEPARTMENT BY WAY OF AN ADDITIONAL GROUND. AFTER HEARING BOTH THE PARTIES SUCH GROUND BEING LEGAL GROUND AND THE FACTS ARE AVAILABLE ON RECORD, THEREFORE, AFTER HEARING BOTH THE PARTIES, WE ADMIT THIS GROUND. ITA NO. 3841/D/07 & ITA NO. 1088/DEL/08 3 5. GROUNDS OF APPEAL FOR A.Y. 2004-05 AS FILED ALON G WITH FORM NO. 36 WERE NOT SPECIFIC AND PRECISE BUT IT WAS STATED BY LD. AR THAT THE ISSUES RAISED IN THE APPEAL FOR A.Y. 2004-05 ARE IDENTICAL TO THE ISSUES RAISED IN RESPECT OF A.Y. 2003-04. HE HAS SUBMITTED A RETURN ED LETTER STATING THEREIN THE GROUNDS OF APPEAL ATTACHED WITH FORM NO. 36 AND THE ISSUE RAISED THROUGH THOSE GROUNDS. THE SAID LETTER IS PLACED O N RECORD. THE CONTENTS OF SAID LETTER ARE AS UNDER: - 1. THAT GROUND NO. 1, 2 & 4 RELATE TO DISALLOWANCE OF CLAIM OF ASSESSEE U/S 80IB OF I.T. ACT ON AMOUNT OF DEPB AND DUTY DRAWBACK IS UNJUSTIFIED & UNCALLED FOR. 2. THAT GROUND NO. 3 RELATE TO LD. CIT(A) IS NOT JU STIFIED IN UPHOLDING THE DISALLOWANCE OF DEDUCTION U/S 80HHC O N THE GROUND OF THE TAXATION LAW (AMENDMENT ACT, 2005 NO. 55 OF 2005-06 WHEREAS AS PER THE ASSESSEE THE ACTION IS SUBJUDICE BEFORE THE HONBLE JURISDICTION AL PUNJAB & HARAYANA HIGH COURT IN CWP NO. 12709 OF 2007, 431 OF 2007, 12695 OF 2007. 3. THAT GROUND NO. 5 RELATE TO ORDER UNDER CHALLENG E SINCE THE DEDUCTION U/S 80HHC BE ALLOWED WITHOUT DEDUCTIN G THE DEDUCTION U/S 80IB WHICH IS A CLAIM IN ACCORDAN CE WITH THE CONSISTENT VIEW OF THE CO-ORDINATE BENCHES OF TRIBUNAL. 6. SO AS IT RELATES TO CLAIM OF SEC. 80HHC VIZ-A-VI Z DEPB LD. AR STATED THAT SINCE EXPORT TURNOVER OF THE ASSESSEE EXCEEDED RS. 10 CRORE, THEREFORE, IN VIEW OF AMENDMENT THE ASSESSEE IS NOT ENTITLE TO GET REBATE OF SEC. 80HHC. IN THIS VIEW OF THE SITUATION, AFTER H EARING BOTH THE PARTIES, WE HOLD THAT ASSESSEES CLAIM FOR 80HHC ON DEPB HAS RI GHTLY BEEN HELD NOT ELIGIBLE AND WE DECLINE TO INTERFERE IN THE FINDING S OF LD. CIT(A) VIDE WHICH IT HAS BEEN HELD THAT ASSESSEE IS NOT ELIGIBLE FOR DED UCTION U/S 80HHC ON ITA NO. 3841/D/07 & ITA NO. 1088/DEL/08 4 DEPB. ACCORDINGLY GROUND NO. 2 FOR A.Y. 2003-04 AN D GROUND NO. 3 FOR A.Y. 2004-05 ARE DISMISSED. HERE IT MAY BE MENTION ED THAT IT IS THE CLAIM OF THE ASSESSEE THAT THE ISSUE REGARDING GRANT OF D EDUCTION U/S 80HHC WHERE DEPB EXCEEDS RS. 10 CRORE IS SUBJUDICE BEFORE HONBLE PUNJAB & HARYANA HIGH COURT IN CWP NO. 12709/2007, 429/2007, 431/2007 AND 12685/2007. IN THIS REGARD IT IS MENTIONED THAT AS AND WHEN THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT I.E. PUNJAB & HAR YANA HIGH COURT RECEIVED THIS ORDER CAN BE RECTIFIED ACCORDINGLY. THEREFORE , PRESENTLY IN VIEW OF AMENDMENT BROUGHT BY TAXATION LAWS (AMENDMENT ACT, 2005) NO. 55/2005-06 THE CLAIM OF THE ASSESSEE IS DENIED AND THESE GROUNDS OF THE ASSESSEE ARE DISMISSED. 7. GROUND NO. 3 FOR A.Y. 2003-04 AND GROUND NO. 1, 2 & 4 FOR A.Y. 2004- 05 RELATES TO AN ISSUE REGARDING GRANT OF DEDUCTION U/S 80IB ON ACCOUNT OF DEPB AND DUTY DRAWBACK. IN THIS REGARD WE HAVE HEA RD BOTH THE PARTIES AND WE FOUND THAT THIS ISSUE IS NOW COVERED AGAINST ASSESSEE BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF LI BERTY INDIA PVT. LTD. VS. CIT, 317 ITR 218 (SC), WHEREIN IT HAS BEEN HELD THA T DUTY DRAWBACK RECEIPTS/DUTY ENTITLEMENT PASS BOOK BENEFITS ARE ON ACCOUNT OF STATUTORY PROVISIONS IN CUSTOMS ACT/SCHEMES FRAMED BY GOVERNM ENT; THEREFORE, PROFITS SO DERIVED DO NOT FORM PART OF NET PROFITS OF ELIGIBLE INDUSTRIAL UNDERTAKING FOR PURCHASES OF SEC. 80IB. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) VIDE WHICH IT HAS BEEN HELD THA T ASSESSEE IS NOT ENTITLED TO GET BENEFIT OF DEDUCTION U/S 80IB ON DUTY DRAWBA CK AND DEPB. THEREFORE, WE DISMISS THESE GROUNDS. ITA NO. 3841/D/07 & ITA NO. 1088/DEL/08 5 8. GROUND NO. 5 FOR A.Y. 2004-05 AND ADDITIONAL GRO UND FILED BY THE ASSESSEE FOR A.Y. 2003-04 RELATES TO AN ISSUE REGAR DING CLAIM OF THE ASSESSEE THAT DEDUCTION U/S 80HHC SHOULD BE ALLOWED WITHOUT DEDUCTING THE DEDUCTION U/S 80IB. 9. AFTER HEARING BOTH THE PARTIES, WE FOUND THAT TH IS ISSUE IS NOW COVERED AGAINST ASSESSEE BY THE DECISION OF SPL. BE NCH OF FIVE MEMBERS IN THE CASE OF ACIT VS. HINDUSTAN MINT & AGRO PRODUCTS PVT. LTD. 119 ITD 107 (DEL.) (SB) IN WHICH IT HAS BEEN HELD THAT DEDUCTIO N U/S 80HHC HAS TO BE REDUCED BY AN AMOUNT OF DEDUCTION ALLOWED U/S 80IB. THEREFORE, THE VIEW TAKEN BY LD. CIT(A) THAT DEDUCTION U/S 80HHC IS TO BE REDUCED BY AMOUNT OF DEDUCTION ALLOWED U/S 80IB IS IN ACCORDANCE WITH AF OREMENTIONED DECISION OF SPL. BENCH. THEREFORE, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE AND THIS GROUND OF THE ASSESSEE IS DI SMISSED. 10. THE OTHER GROUNDS WERE STATED TO BE GENERAL IN NATURE. THEREFORE, NOT ARGUED AND ARE ALSO NOT REQUIRED TO BE ADJUDICA TED. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE DISMISSED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.09 (SHAMIM YAHYA) (I.P. BANSAL ) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: *KAVITA CHOPRA ITA NO. 3841/D/07 & ITA NO. 1088/DEL/08 6 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR