ACIT, New Delhi V. Smt. Sangeeta Jain, New Delhi

ITA 398/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5769 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 18-10-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 28-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K RAO
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 398/DEL/2010 ASSESSMENT YEAR : 2001-02 ASST. COMMISSIONER OF INCOME TAX, CIRCLE 24(1), NEW DELHI VS. SMT. SANGEETA JAIN, 289, CHATTARPUR PAHARI, NEW DELHI PAN : AAGPJ 4335 P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.K. RAO, SR. DR RESPONDENT BY : SHRI SUNIL KUMAR JAIN O R D E R PER: C.L. SETHI, J.M. THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 1 3.11.2009 PASSED BY THE LD. CIT(A) PERTAINING TO THE A.Y. 2001-02. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CA SE OF LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN DI RECTING THE AO TO RECOMPUTED THE DEDUCTION U/S. 80HHC IN SO FAR AS PROFIT ELEMENT OF DEPB IS CONCERNED. 2. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS IN WRONGLY PRESUMING THE FACT THAT THE ASSESSEE HAS FULFILLED THE CONDITIONS AS AID FOR ALLOWING THE DEDUCTION ON THE 90% OF THE DEPB INCENTIVES UNDER CLAUSE (IIID) OF SECTION 28 O F THE INCOME TAX ACT, 1961. ITA NO. 398/DEL/2010 PAGE 2 OF 3 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 4. THE QUESTION ABOUT THE WORKING OF DEDUCTION IN R ESPECT OF DEPB IN THE LIGHT OF THE AMENDMENT MADE BY THE TAXATIONS LA WS (AMENDMENT) ACT, 2005 HAS BEEN RECENTLY CONSIDERED BY THE SPECIAL BE NCH OF THE ITAT IN THE CASE OF TOPMAN EXPORT VS. ITO 318 ITR 87 (AT) = 125 TTJ 289 = 33 SOT 337 (MUM.) (AT), WHICH HAS ALSO BEEN REFERRED BY TH E LD. CIT(A) IN HIS ORDER. RELYING UPON THE SAID DECISION OF THE SPECI AL BENCH, THE CIT(A) HAS DIRECTED THE AO TO RECOMPUTE THE DEDUCTION U/S. 80H C IN SO FAR AS THE PROFIT ELEMENT OF DEPB IS CONCERNED. IN THE ORDER THE CIT (A) ALSO STATED THAT WHILE RE-COMPUTING THE DEDUCTION, THE LD. AO IS TO TAKE THE INTEREST ON FDRS AS INCOME FROM OTHER SOURCES IN VIEW OF THE DELHI H IGH COURTS DECISION IN THE CASE OF CIT VS. SHRI RAM HONDA POWER EQUIPMENT 289 ITR 0475. HOWEVER, THIS ISSUE ABOUT THE DEDUCTION TO BE GIVEN TO THE INTEREST INCOME ON FDR IS NOT A SUBJECT MATTER OF THIS APPEAL BUT THE CIT(A)S ORDER WITH REGARD TO THE COMPUTATION OF THE DEDUCTION U/S. 80HHC IN R ESPECT OF THE DEPB RECEIPTS IN THE LIGHT OF THE DECISION OF SPECIAL BE NCH, IN THE CASE OF TOPMAN EXPORT VS. ITO (SUPRA) BEING THE SUBJECT MATTER OF THIS APPEAL HAS BEEN CONSIDERED BY US AND FOUND TO BE IN ORDER. WE, THE REFORE, DIRECT THE AO TO DECIDE THIS ISSUE IN THE LIGHT OF THE PROPOSITION L AID DOWN BY THE SPECIAL BENCH IN THE CASE OF THE TOPMAN EXPORTS VS. ITO (SU PRA), AND THEN TO RE- ITA NO. 398/DEL/2010 PAGE 3 OF 3 COMPUTE THE DEDUCTION U/S. 80HHC IN SO FAR AS DEPB IS CONCERNED. THEREFORE, ON PRINCIPLE, THE ORDER OF THE CIT(A) IS UPHELD WITH OUR OBSERVATION. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 29 TH MARCH, 2010. SD/- (SHAMIM YAHYA ) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 29 TH MARCH, 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR