ALLANA FROZEN FOODS LTD, MUMBAI V. DCIT CIR 1(1), MUMBAI

ITA 4056/MUM/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9063 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-09-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 16-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Keywords: Opportunity of being heard; Principle of natural justice; Earning of tax free income; Retrospective amendment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 40A(3); 143(3); 80HHC; 14A; 148

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.4056 /MUM/2011 ( / ASSESSMENT YEAR : 2002-03) ALLANA FROZEN FOODS LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. / V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1), AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAACA 5974 C ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.5534 /MUM/2011 ( / ASSESSMENT YEAR : 2002-03) ACIT 1(1), ROOM NO. 579, AAYAKAR BHAVAN, MUMBAI - 20 / V. ALLANA FROZEN FOODS PVT. LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. ./ PAN : AAFPT 4456R ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.4121 /MUM/2011 ( / ASSESSMENT YEAR : 2003-04) ALLANA COLD STORAGES LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. / V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1), AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAACA 5972 E ( / APPELLANT ) .. ( / RESPONDENT ) ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 2 ./ I.T.A. NO.5548 /MUM/2011 ( / ASSESSMENT YEAR : 2003-04) ACIT 1(1), ROOM NO. 579, AAYAKAR BHAVAN, MUMBAI 400 020. / V. ALLANA COLD STORAGE LIMITED, ALLANA HOUSE,4 JA ALLANA ROAD, COLABA, MUMBAI 400 001. ./ PAN : AAACA 5972 E ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.4185 /MUM/2011 ( / ASSESSMENT YEAR : 2004-05) ALLANA INVESTMENTS & TRADING CO. LTD., ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. / V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1), AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAACA 5915 F ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.5518 /MUM/2011 ( / ASSESSMENT YEAR : 2004-05) ACIT 1(1), ROOM NO. 579, AAYAKAR BHAVAN, MUMBAI 400 020. / V. ALLANA COLD STORAGES LIMITED, ALLANA HOUSE,4 JA ALLANA ROAD, COLABA, MUMBAI 400 001. ./ PAN : AAACA 5972 E ( / APPELLANT ) .. ( / RESPONDENT ) ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 3 ./ I.T.A. NO.4110 /MUM/2011 ( / ASSESSMENT YEAR : 2004-05) ALLANA COLD STORAGES LIMITED, ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. / V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1), AAYAKAR BHAVAN, 5 TH FLOOR, M.K. ROAD, MUMBAI 400 020. ./ PAN : AAACA 5972 E ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.5533 /MUM/2011 ( / ASSESSMENT YEAR : 2004-05) ACIT 1(1), ROOM NO. 579, AAYAKAR BHAVAN, MUMBAI 400 020. / V. ALLANA INVESTMENTS & TRADING CO. LTD., ALLANA HOUSE, ALLANA ROAD, COLABA, MUMBAI 400 001. ./ PAN : AAACA 5915 F ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY MS. VASANTI PATEL & SHRI APURVA SHAH REVENUE BY : SHRI A. RAMACHANDRAN / DATE OF HEARING : 28-09-2016 / DATE OF PRONOUNCEMENT : 02-01-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE ARE BUNCH OF EIGHT APPEALS PERTAINING TO DI FFERENT ASSESSEES OF THE SAME GROUP. OUT OF THESE EIGHT APPEALS, FOUR A PPEALS BY THE ASSESSEES BEING ITA NOS. 4056/MUM/11, 4121/MUM/11,4185/MUM/11 AND 4110/MUM/11 AND OTHER FOUR APPEALS BY THE REVENUE B EING ITA NOS. 5534/MUM/11, 5548/MUM/11, 5518/MUM/11 AND 5533/MUM/ 11 ARE ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 4 CROSS APPEALS FOR THE ASSESSMENT YEARS 2002-03 TO 2 004-05 WHICH ARE DIRECTED AGAINST SEPARATE APPELLATE ORDERS PASSED B Y THE LEARNED COMMISSIONER OF INCOME TAX(APPEAL), MUMBAI (HEREINA FTER CALLED THE CIT(A)). THE ISSUES INVOLVED IN ALL THESE APPEALS ARE COMMON; THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FIRST WE SHALL TAKE UP ASSESSEES APPEAL IN ITA NO . 4056/MUM/2011 FOR ASSESSMENT YEAR 2002-03. 2. THE ASSESSEEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL IN THE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL (HEREINAFTER CALLED THE TRIBUNAL) : THE COMMISSIONER OF INCOME TAX(APPEALS)-1,MUMBAI ERRED:- 1.1. WITHOUT PREJUDICE, IN NOT APPRECIATING THAT ALLANAS ONS LTD. , A TRADING HOUSE, HAD MADE A PROFIT ON THE SALE OF GOO DS PURCHASED FROM THE APPELLANT, A SUPPORTING MANUFACTURER, AS W AS EVIDENT FROM THE FORM NO 10CCAB FILED WITH THE ASSESSING OF FICER. THE ASSESSEE HAS ALSO RAISED FOLLOWING ADDITIONAL GROUNDS OF APPEAL:- WITHOUT PREJUDICE TO THE APPELLANT'S CONTENTION [WHICH HAS BEEN ACCEPTED BY THE COMMISSIONER OF INCOME TAX (APPEALS )] THAT ITS CLAIM FOR DEDUCTION U/S 80HHC AS A SUPPORTING MANUFACTURER IS NOT DEPENDANT ON THE OUTCOME OF CLAIM MADE BY ALLANASONS LTD., A TRADING HOUSE WHICH ISSUED DISCLAIMER CERTIFICATE IN FAVOUR O F APPELLANT:- 1.2 ERRED IN NOT APPRECIATING THAT ALLANASONS LTD., THE TRADING HOUSE WHICH MADE A DISCLAIMER, WOULD BE ENTITLED TO A DEDU CTION U/S 80HHC FOR THE YEAR UNDER APPEAL AS PER SECTION 80HHC AS A MENDED BY TAXATION LAWS (AMENDMENT) ACT, 2005. THE ABOVE ADDITIONAL GROUND WHICH IS BEING RAISED B EFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL ARISES OUT OF THE RECEN T JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE WRIT PETITION FILED BY ALLANASONS LTD. [156/2006 RENUMBERED AS 10187/2012] AND THE JUDGMEN T OF THE ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 5 HON'BLE SUPREME COURT IN TOPMAN EXPORTS REPORTED AT 34 2 ITR 49 AND DELIVERED ON 08/02/2012. WE PRAY THAT THE ABOVE GROUND BE KINDLY ADMITTED SINCE IT EMANATES FROM THE ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS). 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ADDITIONAL GROUNDS OF APPEAL ARE LEGAL GROUNDS AND IT GOES TO THE ROOT OF THE MATTER AND NEED TO BE ADMITTED IN THE INTEREST OF JUSTICE. THE LEARNED DR DID NOT OBJECTED TO THE ADMISSION OF THESE ADDITIONAL GROUNDS OF APPEAL . AFTER HEARING BOTH THE PARTIES, WE DIRECT THAT THESE ADDITIONAL GROUNDS BE ADMITTED IN THE INTEREST OF SUBSTANTIAL JUSTICE AND BE ADJUDICATED ON MERITS IN ACCORDANCE WITH LAW. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A MANUFACTURER OF FROZEN FOODSTUFFS WHO EXPORTED LARGE PARTS OF ITS P RODUCTION THROUGH AN EXPORT HOUSE NAMELY ALLANA SONS LIMITED. THE ASSESSEE BEI NG A SUPPORTING MANUFACTURER, GOT A DISCLAIMER CERTIFICATE FROM THE EXPORT HOUSE AS PRESCRIBED UNDER SUB SECTION 4A(B) OF SECTION 80 HHC OF THE AC T. THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80HHC OF THE ACT ON DISCLAIME D TURNOVER OF RS. 39,07,97,779/- . THE ASSESSEE HAS MADE CLAIM OF DED UCTION U/S 80 HHC OF THE ACT ON THE PROFIT AROSE TO THE ASSESSEE ON THE SALE S TO THE EXPORT HOUSE OF ITS MANUFACTURED GOODS WHICH WAS SPECIFIED AS ASSESSEE S TURNOVER IN THE DISCLAIMER CERTIFICATE ISSUED BY THE EXPORT HOUSE I N FAVOUR OF THE ASSESSEE. THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80HHC OF T HE ACT WAS DENIED BY THE AO RELYING ON THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF IPCA LABORATORIES LTD., (2004)266 ITR 521(SC), AS NO DED UCTION U/S 80HHC OF THE ACT WAS AVAILABLE TO ALLANA SONS LIMITED. THUS, IN NUTSHELL, THE A.O. DISALLOWED THE DEDUCTION U/S 80HHC OF THE ACT TO THE ASSESSEE ON THE GROUND THAT M/S ALLANA SONS LIMITED ITSELF IS NOT ENTITLED TO DEDUC TION U/S 80 HHC OF THE ACT, THEN THE ASSESSEE BEING SUPPORTING MANUFACTURER CAN NOT CLAIM ANY DEDUCTION U/S. 80HHC OF THE ACT ON THE EXPORT TURNOVER DISCLA IMED BY THE EXPORT HOUSE. IT IS PERTINENT TO NOTE AT THIS STAGE THAT LOSS OF ALL ANA SONS LIMITED FROM EXPORT OF ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 6 TRADING GOODS IS MUCH MORE THAN PROFITS EARNED BY I T ON EXPORT OF MANUFACTURED GOODS. THE ASSESSEE WAS , HOWEVER, ALLOWED DEDUCTIO N U/S 80HHC OF THE ACT ON THE DIRECT EXPORT TURNOVER MADE BY THE ASSESSEE. T HE AO PASSED ASSESSMENT ORDER DATED 17-03-2005 U/S. 143(3) OF THE ACT. 5. AGGRIEVED BY THE ASSESSMENT ORDER DATED 17-03-2 005 PASSED BY THE AO U/S 143(3) OF THE ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHEREBY THE ASSESSEE REITERATED THE SUBM ISSIONS AS WERE MADE BEFORE THE A.O. . THE ASSESSEE CONTENDED THAT IN VIEW OF I NSERTION OF FIFTH PROVISO TO SECTION 80HHC(3) WITH RETROSPECTIVE EFFECT FROM 1.4 .1992 BY TAXATION LAWS (AMENDMENT) ACT, 2005 TO PROVIDE THAT THE LOSSES FR OM TRADING/MANUFACTURING EXPORTS WOULD BE ADJUSTED AGAINST EXPORT INCENTIVES AS PROVIDED IN THE SAID PROVISO, AND THAT A DEDUCTION U/S 80HHC OF THE ACT WOULD BE ALLOWABLE AGAINST THE BALANCE PROFIT. IT WAS SUBMITTED THAT THE ASSES SEE BEING SUPPORTING MANUFACTURER SHOULD BE ALLOWED DEDUCTION U/S 80HHC OF THE ACT ON PROFITS MADE BY IT ON GOODS SUPPLIED TO EXPORT HOUSE , ALLA NASONS LIMITED FOR WHICH IT HOLD DISCLAIMER CERTIFICATE FROM ALLANA SONS LIMITE D. IT WAS SUBMITTED THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF IP CA LABORATORIES LIMITED(SUPRA) IS NOT APPLICABLE TO SUPPORTING MANU FACTURERS AS THE SAME IS APPLICABLE TO TRADING HOUSE/EXPORT HOUSES WHO HAVE MADE EXPORTS . THE ASSESSEE RELIED UPON CBDT CIRCULAR NO 528 DATED 16 TH DECEMBER 1988 TO CONTEND THAT THE CBDT CIRCULAR CLARIFIES THE MANNER OF COMPUTING DEDUCTION U/S 80HHC OF THE ACT IN THE CASE OF SUPPORTING MANU FACTURERS. THUS, IT WAS SUBMITTED THAT TO GET DEDUCTIONS U/S 80HHC OF THE A CT IN THE CASE OF SUPPORTING MANUFACTURES, IT IS NOT RELEVANT WHETHER THE TRADING HOUSE/EXPORT HOUSE HAS MADE PROFITS OR NOT . THE LD. CIT(A) OBS ERVED THAT AS PER THE RATIO OF LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE C ASE OF IPCA LABORATORIES LTD. (SUPRA) THE INCOME HAS TO BE COMPUTED IN ACCOR DANCE WITH THE PROVISIONS OF THE ACT, THEN NOT ONLY PROFITS BUT ALSO LOSSES HAVE TO BE TAKEN IN TO CONSIDERATION BEFORE ALLOWING DEDUCTION U/S 80HHC O F THE ACT WHICH SHALL BE ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 7 ALLOWED ONLY WHEN THERE IS POSITIVE PROFIT AFTER AD JUSTING LOSSES, IF ANY. THUS AS PER LEARNED CIT(A), THE LOSSES ARISING FROM EXPORT OF TRADED GOODS SHALL BE SET OFF AGAINST PROFIT FROM EXPORT OF MANUFACTURED GOODS BY ALLANA SONS LIMITED BEFORE ALLOWING DEDUCTION U/S 80HHC OF THE ACT IN THE HAND S OF ALLANA SONS LIMITED. THUS, IT WAS OBSERVED BY THE LEARNED CIT(A) THAT RA TIO OF DECISION OF HONBLE SUPREME COURT IN IPCA LABORATORIES LIMITED(SUPRA) C LEARLY LAYS DOWN THAT IF NO DEDUCTION IS AVAILABLE IN THE HANDS OF TRADING HOUS E/EXPORT HOUSE , BECAUSE THERE IS A NET LOSS IN THE CASE OF EXPORT HOUSE/ TR ADING HOUSE , THEN THE EXPORT HOUSE CANNOT PASS ON OR GIVE CREDIT OF SUCH NON EXI STING DEDUCTION TO A SUPPORTING MANUFACTURE . THE LD. CIT (A) FURTHER OB SERVED THE ASSESSEE HAS COMPLIED WITH ALL THE NECESSARY PROVISIONS OF SEC. 80 HHC (1A) R.W.S. 3A, 4A OF THE ACT FOR CLAIMING DEDUCTION AS ENVISAGED IN PROV ISO TO SECTION 80HHC(L) AND HENCE THE AO WAS NOT CORRECT IN DENYING THE CLAIM O F THE DEDUCTION MADE BY THE ASSESSEE IN VIEW OF THE FOLLOWING FACTS:- (I) ADMITTEDLY THE APPELLANT WAS A SUPPORTING MANUFACTU RER IN TERMS OF CLAUSE 'D' OF THE EXPLANATION TO SECTION 80HHC. (II) THE DISCLAIMER CERTIFICATE ISSUED TO THE APPELLANT WAS BY AN EXPORT HOUSE /TRADING HOUSE AS PER CLAUSE 'C' OF THE EXPLA NATION. (III) THE DISCLAIMER CERTIFICATE REQUIRED UNDER SUB SECTI ON (4A) OF SECTION 80HHC OF THE ACT IN FORM NO. 10 CCAB AS PER RULE 18 BBA(2) OF INCOME- TAX RULES,1962 WAS FILED BY THE APPELLANT ALONG WIT H RETURN OF INCOME FOR CLAIMING DEDUCTION U/S 80HHC(1A) CERTIFYING THA T THE EXPORT HOUSE HAD NOT CLAIMED DEDUCTION UNDER SECTION 80HHC(1) ON THE EXPORT OF TRADING GOODS EFFECTED ON MANUFACTURING GOODS OF TH E APPELLANT. (IV) THE APPELLANT HAS ALSO FILED A CERTIFICATE IN PRESC RIBED PROFORMA I.E. FORM NO. 10CCAC AS PER RULE 18BBA(3) IN TERMS OF SUB CLA USE (A) OF SUB SECTION (4A) OF SECTION 80HHC. ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 8 6. AGGRIEVED BY THE APPELLATE ORDER DATED 15-03-201 1 PASSED BY LEARNED CIT(A) , THE ASSESSEE FILED SECOND APPEAL BEFORE TH E TRIBUNAL BECAUSE ALLANA SONS LIMITED WAS HAVING NET LOSS AFTER ADJUSTING TH E LOSS ARISING FROM EXPORT OF TRADED GOODS WITH PROFIT EARNED ON EXPORT OF MA NUFACTURED GOODS. THUS, THERE WAS A NET LOSS AND ALLANA SONS LIMITED WAS NO T ENTITLED FOR DEDUCTION U/S 80HHC OF THE ACT AND CONSEQUENTLY THE ASSESSEE WAS DENIED THE BENEFIT OF DEDUCTION U/S 80HHC OF THE ACT BEING A SUPPORTIN G MANUFACTURER. IT IS THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80HHC OF THE ACT AS THE ASSESSEE IS SUPPORTING MANUFACTURER AND HAS EARNED PROFITS ON SALES MADE T O THE EXPORT HOUSE ALLANA SONS LIMITED WHICH WERE EXPORTED BY ALLANA S ONS LIMITED AND AGAINST WHICH DISCLAIMER CERTIFICATE IS ISSUED BY ALLANA SO NS LIMITED. THE ASSESSEE HAD FILED FORM NO. 10CCAB AS PER RULE 18BBA(2) OF T HE INCOME-TAX RULES, 1962. THE LD. COUNSEL SUBMITTED THAT THE DEDUCTION WAS DISALLOWED TO THE ASSESSEE BY THE AUTHORITIES BELOW KEEPING IN VIEW T HE DECISION OF HONBLE SUPREME COURT IN THE CASE OF IPCA LABORATORIES LTD. (SUPRA) ON THE GROUND THAT THERE IS NO PROFIT FROM EXPORT ACTIVITIES( AFT ER ADJUSTING LOSS FROM EXPORT OF TRADED GOODS AGAINST PROFIT ON EXPORT OF MANUFACTUR ED GOODS) IN THE CASE OF ALLANA SONS LIMITED WHICH IS AN EXPORT HOUSE TO WHO M THE ASSESSEE HAS SUPPLIED ITS PRODUCTS FOR ONWARD EXPORTS BY ALLANA SONS LIMITED. IT WAS SUBMITTED THAT NOW WITH THE INTRODUCTION OF TAXATIO N LAWS (AMENDMENT )ACT 2005 , FIFTH PROVISO TO SECTION 80 HHC(3) OF THE AC T HAS BEEN INSERTED W.E.F. 01-04-1992, THE EXPORT HOUSE ALLANA SONS LIMITED SH ALL BECOME ELIGIBLE FOR DEDUCTION U/S 80HHC OF THE ACT AS THE EXPORT INCENT IVES RECEIVED BY ALLANA SONS LIMITED AND RETAINED BY THEM SHALL BECOME ELIG IBLE TO BE SET OFF TO THE EXTENT OF 90% AGAINST LOSS FROM EXPORT ACTIVITIES A ND IF THE NET RESULT AFTER ABOVE ADJUSTMENTS IS POSITIVE PROFIT ENTITLING ALLA NA SONS LIMITED TO GET DEDUCTION U/S 80HHC OF THE ACT . THUS, IT WAS SUBMI TTED THAT THE ASSESSEE BEING SUPPORTING MANUFACTURER IS ALSO ENTITLED FOR DEDUCTION U/S 80HHC OF THE ACT AS IT HOLD DISCLAIMER CERTIFICATE ISSUED BY ALLANA SONS LIMITED. THE ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 9 ASSESSEE HAS BROUGHT ON RECORD THE TRIBUNAL ORDER I N ITA NO. 6344/MUM/2013 FOR THE ASSESSMENT YEAR 2002-03 DATED 6 TH APRIL, 2016 IN THE CASE OF M/S ALLANA SONS LTD. V. ADDL. CIT , WHE REBY THE TRIBUNAL DIRECTED THE AUTHORITIES BELOW TO ALLOW DEDUCTION U/S 80 HHC OF THE ACT TO M/S ALLANA SONS LIMITED KEEPING IN VIEW OF THE AMENDMENTS BROU GHT IN BY THE TAXATION LAWS (AMENDMENT) ACT, 2005 W.E.F. 01-4-1992 WHEREBY PROVISO 5 TO SECTION 80 HHC (3) OF THE ACT WAS INSERTED. THE ASSESSEE V IDE ITS PAPER BOOK HAS FILED THE ORDER GIVING EFFECT TO THE AFORESTATED TRIBUNAL S ORDER IN ITA NO. 6344/MUM/2013 , VIDE APPEAL EFFECT ORDER DATED 23 RD MAY, 2016 PASSED BY THE AO WHEREIN THE A.O. ALLOWED THE DEDUCTION OF RS . 3,52,20,045/- U/S 80HHC OF THE ACT TO ALLANA SONS LIMITED. THE SAID ORDERS ARE PLACED IN FILE. THE LD. COUNSEL SUBMITTED THAT IN VIEW OF THE DECIS ION OF THE TRIBUNAL IN THE CASE OF ALLANA SONS LIMITED (SUPRA), THE ASSESSEES CLAIM SHOULD BE ALLOWED BEING SUPPORTING MANUFACTURER AS NOW DEDUCTION OF R S. 3,52,20,0045/- IS ALLOWED TO ALLANA SONS LIMITED U/S 80HHC OF THE ACT AND THE ASSESSEE HOLDS DISCLAIMER CERTIFICATE ISSUED BY ALLANA SONS LIMITE D . IT IS ALSO SUBMITTED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S A LLANA SONS LTD. V. DCIT VIDE WRIT PETITION NO. 802 OF 2005 VIDE ORDERS DATE D 22 ND JULY, 2014 HAS ALLOWED THE WRIT PETITION AND QUASHED THE REASSESSM ENT NOTICE DATED 10-01- 2005 ISSUED BY THE AO U/S 148 OF THE ACT, BY HOLDIN G AS UNDER:- IN ANY VIEW OF THE MATTER, THE STAND OF THE PETITI ONER ON WITH REGARD TO INTEREST INCOME BEING INCLUDED WHILE COMPUTING CLAI M FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS BEEN UPHELD NOT ONLY B Y THE CIT(A) BUT ALSO BY THE TRIBUNAL IN ITS ORDER DATED 22 NOVEMBER 2006 . BESIDES THE AMENDMENT TO SECTION 80HHC (3) OF THE ACT BY ADDITI ON OF FIFTH PROVISO THERETO WITH RETROSPECTIVE EFFECT WILL WORK TO THE BENEFIT OF THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER, ALLOWING REASSESSM ENT PROCEEDINGS WOULD BE A MERE ACADEMIC EXERCISE ONLY BECAUSE THE ASSESSING OFFICER WOULD BOUND BY THE ORDERS OF THE TRIBUNAL. MOREOVE R, THE VERY BASIS OF THE IMPUGNED NOTICE DATED 10 JANUARY 2005 WILL NOT BE SUSTAINABLE. IN VIEW OF ALL THE ABOVE REASONS, WE SET ASIDE THE IMP UGNED NOTICE DATED 10 JANUARY 2005. ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 10 THUS, IT IS SUBMITTED THAT NOW THE ASSESSEE IS ENTI TLED FOR DEDUCTION U/S 80HHC OF THE ACT. IT WAS ALSO SUBMITTED THAT THE M UMBAI BENCH OF THE TRIBUNAL IN THE CASE OF OTHER SUPPORTING MANUFACTUR ER NAMELY FRIGORIFICO ALLANA LIMITED IN CROSS APPEALS ACIT V. FRIGORIFICO ALLANA LIMITED AND ORS. VIDE ITA NO. 5513/MUM/2011 AND ORS. FOR THE ASSESSM ENT YEARS 2002-03 TO 2004-05 VIDE COMMON ORDERS DATED 27 TH JULY, 2016 HAS ALSO ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80HHC OF THE ACT T O OTHER SUPPORTING MANUFACTURER OF ALLANASONS LIMITED NAMELY FRIGORIFI CO ALLANA LIMITED AND ORS. , KEEPING IN VIEW INSERTION OF FIFTH PROVISO TO SECTION 80HHC(3) OF THE ACT BY THE INTRODUCTION OF TAXATION LAWS (AMENDMENT) AC T, 2005 WITH EFFECT FROM 01-04-1992 , WHEREBY THE TRIBUNAL HAS HELD AS UNDE R:- THESE APPEALS BELONG TO DIFFERENT ASSESSEES OF SAM E GROUP ARISING IN DIFFERENT ASSESSMENT YEARS INVOLVING IDENTICAL ISSU ES AND THEREFORE THESE WERE HEARD TOGETHER AND BEING DISPOSED BY THIS COMM ON ORDER. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI P.J. PARDIWALLA & MS. VASANTI PATEL, AUTHORISED REPRESEN TATIVES (ARS) ON BEHALF OF THE ASSESSEE AND BY SHRI G.M. DOSS & SHRI E. SHREEDHAR, DEPARTMENTAL REPRESENTATIVES (DRS) ON BEHALF OF THE REVENUE. FIRST WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVENU E IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4195/MU M/2011 & ITA NO. 5528/MUM/2011, RESPECTIVELY, FOR A.Y. 2000-01 : 3. GROUND NOS 1 & 2 OF ASSESSEES APPEAL AND GROUND NO.2 OF REVENUES APPEAL INVOLVE IDENTICAL ISSUE WITH REGAR D TO DENIAL OF DEDUCTION U/S 80HHC TO THE ASSESSEE ON THE GROUND T HAT DEDUCTION U/S 80HHC WAS DENIED TO THE MAIN EXPORTER ALSO, TO WHOM THE ASSESSEE (A SUPPORTING MANUFACTURER) HAD SOLD ITS GOODS. 3.1. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE IN DE TAIL AND ALSO GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS COPIES OF JUDGMENT PLACED BEFORE US. THE BRIEF BACKGROUND OF THIS CASE IS THAT ASSESSEE IS SUPPORTING MANUFACTURER, SELLING ITS GOODS TO THE E XPORT HOUSE NAMELY M/S. ALLANA SONS LTD, WHO HAD ISSUED DISCLAIMER CER TIFICATE IN FAVOUR OF THE ASSESSEE U/S 80HHC AND ACCORDINGLY, THE ASSESSE E CLAIMED BENEFIT OF DEDUCTION U/S 80HHC ON THE AMOUNT OF TURNOVER MA DE BY THE ASSESSEE TO THE EXPORT COMPANY. DURING THE COURSE O F REASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE SAID EXPORT HOUS E HAS BEEN DENIED ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 11 THE BENEFIT OF DEDUCTION U/S 80HHC ON THE GROUND TH AT THE SAID EXPORT HOUSE COMPANY NAMELY M/S. ALLANA SONS LTD. (HERE I N AFTER REFERRED TO AS ASL IN SHORT) HAD INCURRED LOSS IN CASE THE AM OUNT OF INCENTIVE IS NOT INCLUDED IN ITS EXPORT PROFITS. ACCORDINGLY, THE AO OF THE ASSESSEE WITHDREW THE BENEFIT OF CLAIM OF DEDUCTION U/S 80HH C IN THE CASE OF PRESENT ASSESSEE ALSO SOLELY ON THE GROUND WHEN THE MAIN EXPORTER I.E. ASL AS ITSELF BEING DENIED THE BENEFIT OF DEDUCTION U/S 80HHC, THEREFORE, CONSEQUENTLY, THE ASSESSEE SHOULD ALSO BE DENIED TH E BENEFIT OF DEDUCTION U/S 80HHC. ACCORDINGLY, THE CLAIM MADE BY THE ASSESSEE U/S 80HHC FOR RS.16,87,12,722/- ON THE TURNOVER OF RS.9 7,59,61,941/- (DISCLAIMED BY ASL IN FAVOUR OF THE ASSESSEE) WAS W ITHDRAWN BY THE AO. 3.2. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) AND MADE EXHAUSTIVE SUBMISSIONS ON VARIOUS GROUNDS TO AGITATE THIS ADDITION. LD. CIT(A) ACCEPTED THE SUBMISSIONS OF TH E ASSESSEE IN PART AND ALLOWED THE BENEFIT OF DEDUCTION U/S 80HHC TO THE A SSESSEE ON THE GROUND THAT THE ASSESSEE IS ENTITLED FOR BENEFIT OF DEDUCTION U/S 80HHC WITHOUT DEPENDING UPON ACTUAL ALLOWABILITY OF DEDUC TION U/S 80HHC IN THE HANDS OF EXPORT HOUSE AND HE FURTHER HELD THAT IN ANY CASE THE EXPORT HOUSE HAS BEEN ACTUALLY ALLOWED THE DEDUCTION U/S 8 0HHC, AND THEREFORE, ON FACTS ALSO THE ASSESSEE IS ENTITLED F OR DEDUCTION U/S 80HHC. 3.3. BEING AGGRIEVED, THE REVENUE FILED AN APPEAL BEFOR E THE TRIBUNAL ON THE GROUND THAT LD. CIT(A) OUGHT NOT TO HAVE ALLOWE D THE BENEFIT OF DEDUCTION U/S 80HHC IN THE LIGHT OF JUDGMENT OF HON BLE SUPREME COURT IN THE CIT V. IPCA LABORATORIES LTD. 266 ITR 521 (S C) WHEREIN IT WAS HELD THAT IN CASE THERE WAS LOSS FROM EXPORT ACTIVITIES, THEN THE EXPORT HOUSE CANNOT PASS ON THE BENEFIT OF DEDUCTION U/S 80HHC B Y WAY OF ISSUE OF DISCLAIMER CERTIFICATE U/S 80HHC (4)(A) TO THE SUPP ORTING MANUFACTURER. 3.4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE DEFENDE D AND JUSTIFIED THE ORDER OF LD. CIT(A) FOR ALLOWING DEDUCTION U/S 80HHC ON MANY GROUNDS. HIS FIRST ARGUMENT WAS THAT DEDUCTION HAS BEEN ACTUALLY ALLOWED TO THE EXPORT HOUSE I.E. ASL BY THE TRIBUNA L AND ORDER OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT WHEREIN THE REOPENING DONE BY THE AO OF THE ASL HAS BEEN QU ASHED AND ON MERITS ALSO HONBLE HIGH COURT HAD FOUND THAT DEDUC TION U/S 80HHC WAS ALLOWABLE IN THE HANDS OF ASL AS PER LAW AND FA CTS. THUS, THE WHOLE PREMISE ON WHICH THE DEDUCTION WAS DISALLOWED IN TH E HANDS OF THE ASSESSEE CEASES TO EXIST AND THEREFORE THE DEDUCTIO N HAS TO BE ALLOWED TO THE ASSESSEE. SECOND ARGUMENT MADE BY THE ASSESSEE WAS THAT THIS CONTROVERSY HAS BEEN RESOLVED IN THE JUDGMENT OF HO NBLE BANGLORE BENCH IN THE CASE OF SHAMANUR KALLAPPA & SONS VS. A CIT 23 DTR (BANG)(TRIB) 269 WHICH HAS BEEN SUBSEQUENTLY UPHELD BY THE HONBLE KARNATAKA HIGH COURT BY VIDE ITS ORDER DATED 12 TH JANUARY 2015 IN ITA NO. 10/2009 BY HOLDING THAT DEDUCTION U/S 80HHC TO THE SUPPORTING MANUFACTURER IS ALLOWABLE INDEPENDENT OF ACTUAL ALL OWING OF DEDUCTION IN THE HANDS OF MAIN EXPORTER. THE THIRD ARGUMENT MADE BY THE LD. COUNSEL ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 12 WAS THAT REOPENING WAS DONE IN THE CASE OF THE ASSE SSEE BY THE AO ON THE ISSUE OF DISALLOWANCE U/S 40A(3) ONLY AND NO IS SUE WAS RAISED IN THE REASONS RECORDED WITH RESPECT TO DEDUCTION U/S 80 HHC. THE DISALLOWANCE MADE U/S 40A(3) HAS BEEN DELETED BY TH E LD. CIT(A) AGAINST WHICH REVENUE HAS NOT FILED ANY APPEAL. THU S, MAIN ISSUE ON WHICH REASONS WERE RECORDED HAS BEEN SETTLED AND THEREFORE, NO OTHER DISALLOWANCE WOULD BE SUSTAINABLE AS REOPENING WOUL D BECOME BAD IN LAW. 3.4. PER CONTRA, LD. DR RELIED UPON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF IPCA LABORATORIES LTD. V. CIT (SUPRA) AND RELIED UPON THE ORDER OF THE AO. WE HAVE CONSIDERED THE ENTIRE MATRIX AND FACTS OF THIS CASE AND COPIES OF JUDGMENT PLACED BEFORE US. BEFORE GOING DEEPER IN DETAILS, IT HAS BEEN NOTED BY US AT THE OUTSET THAT DEDUCTION U/S 80HHC IN THE HANDS OF ASL (I.E. EXPORT HOUSE) HAS BEEN FO UND TO BE ALLOWABLE BY HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. ALLAN A SONS LTD. V. DCIT WRIT PETITION NO.802 OF 2005 DATED 22 ND JULY 2014 WHEREIN IT WAS HELD THAT REOPENING OF THE ASSESSMENT IN THE HANDS OF M/ S. ALLANA SONS LTD. WAS NOT VALID AS PER LAW AND THE SAME WAS QUASHED W ITH FOLLOWING OBSERVATIONS: WE HAVE CONSIDERED THE RIVAL SUBMISSION. IT IS WEL L SETTLED THAT A NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 O F THE ACT CAN ONLY BE ISSUED IF THE ASSESSING OFFICER HAS REASON TO BELIE VE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THIS REAS ON TO BELIEVE ON THE PART OF THE ASSESSING OFFICER HAS NOT TO BE ON THE BASIS OF CHANGE OF OPINION I.E. WHERE ASSESSING OFFICER HAS HAD OCCASI ON TO CONSIDER AN ISSUE DURING THE ASSESSMENT PROCEEDING UNDER SECTIO N 143(3) OF THE ACT. IN THIS CASE, THE ASSESSING OFFICER HAD DURING THE PROCEEDING UNDER SECTION 143(3) OF THE ACT RAISED QUERIES TO THE PET ITIONER SPECIFICALLY WITH REGARD TO PETITIONERS CLAIM FOR DEDUCTION UNDER SE CTION 80HHC OF THE ACT AND THE PETITIONERS RESPONSE TO THE SAME WAS CONSI DERED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R. THEREFORE, THE IMPUGNED NOTICE AND THE GROUNDS IN SUPPORT THEREOF ARE IN FACT A CHANGE OF PINION ON THE PART OF THE ASSESSING OFFICER. THE REFORE, ON THE AFORESAID GROUND ALONE IMPUGNED NOTICE IS NOT SUSTAINABLE. 3.5. IT IS FURTHER NOTED BY US THAT, ON MERITS ALSO HON BLE HIGH COURT OBSERVED THAT DEDUCTION U/S 80HHC WAS ACTUALLY ALLOWABLE TO THE SAID EXPORT HOUSE THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE VERY USE FUL AND THESE ARE REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENC E: IN ANY VIEW OF THE MATTER, THE STAND OF THE PETITI ONER ON MERITS WITH REGARD TO INTEREST INCOME BEING INCLUDED WHILE COMP UTING THE CLAIM FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS BEEN U PHELD NOT ONLY BY THE CIT(A) BUT ALSO BY THE TRIBUNAL IN ITS ORDER DA TED 22 NOVEMBER 2006. BESIDES THE AMENDMENT TO SECTION 80HHC(3) OF THE AC T BY ADDITION OF ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 13 FIFTH PROVISO THERETO WITH RETROSPECTIVE EFFECT WIL L WORK TO THE BENEFIT OF THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER, AL LOWING REASSESSMENT PROCEEDINGS WOULD BE A MERE ACADEMIC EXERCISE ONLY BECAUSE THE ASSESSING OFFICER WOULD BE BOUND BY THE ORDERS OF T HE TRIBUNAL. MOREOVER, THE VERY BASIS OF THE IMPUGNED NOTICE DAT ED 10 JANUARY 2005 WILL NOT BE SUSTAINABLE. IN VIEW OF ALL THE ABOVE R EASONS, WE SET ASIDE THE IMPUGNED NOTICE DATE 10 TH JANUARY 2005. 3.6. THUS, IT IS NOTED BY US THAT THE HONBLE HIGH COUR T HAS NOT ONLY QUASHED THE REASSESSMENT ORDER BUT ALSO HELD THAT DEDUCTION U/S 80HHC IS ACTUALLY ALLOWABLE TO ASL. IT IS FURTHER NOTED BY US THAT IT HAS BEEN HELD BY HONBLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORTS & O THERS DATED 02.07.2012 THAT THE AMENDMENT MADE BY TAXATION LAWS (AMENDMENT ) ACT 2005 IN SECTION 80HHC TO CURTAIL THE BENEFIT OF U/S 80HHC ON THE AM OUNT OF INCENTIVE RECEIVED BY THE MAIN EXPORTERS WOULD NOT OPERATE RETROSPECTI VE. THUS, IF WE CONSIDER ON FACTS THE CASE OF ASL ON MERITS ALSO, IT IS NOTED T HAT AFTER INCLUDING AMOUNT OF INCENTIVES THERE WOULD ARISE POSITIVE AMOUNT OF PRO FIT. THUS, VIEWED FROM ANY ANGLE, AND KEEPING IN VIEW THE FACT THAT WHEN DEDUC TION U/S 80HHC HAS BEEN ACTUALLY ALLOWED IN THE HANDS OF ASL I.E. EXPORT HO USE, THEREFORE, THE WHOLE PREMISES OF THE AO BASED UPON WHICH THE DEDUCTION W AS DENIED TO THE ASSESSEE, CEASES TO EXIST. UNDER THESE FACTS AND CI RCUMSTANCES, WE FIND THAT LD. CIT(A) HAS RIGHTLY ALLOWED THE BENEFIT OF DEDUC TION U/S 80HHC TO THE ASSESSEE AND THEREFORE, WE FIND NOTHING WRONG IN TH E ORDER OF LD. CIT(A) AND THEREFORE, THE SAME IS UPHELD. SINCE, WE HAVE ALLOW ED THE RELIEF TO THE ASSESSEE ON THE FIRST ARGUMENT ITSELF THEREFORE, WE TREAT OT HER ARGUMENTS AS ACADEMIC IN NATURE AND THEREFORE, WE ARE NOT DEALING WITH THE S AME AT THIS STAGE. AS A RESULT, GROUNDS RAISED BY THE REVENUE IN THIS APPEA L ARE DISMISSED AND GROUNDS RAISED BY THE ASSESSEE MAY BE TREATED AS ALLOWED. 7. THE LD. D.R., IN THE OTHER HAND, RELIED ON THE O RDER OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF ITO V. SHRI RA MESHCHANDRA S. PATEL IN ITA NO. 505/AHD/2008 FOR ASSESSMENT YEAR 2004-05 DA TED 27 TH AUGUST, 2010 WHEREBY THE TRIBUNAL VIDE PARA 20 TO 22 OF ITS ORDE R HAS HELD AS UNDER:- THUS, FROM A READING OF THE AFORESAID PROVISION OF LAW IN OUR CONSIDERED OPINION A SUPPORTING MANUFACTURER WHO RE CEIVE CERTIFICATE REFERRED TO IN SUB-SECTION (4A) CLAUSE (B) OF THE ACT IS ENTITLED FOR DEDUCTION UNDER SECTION 80HHC TO THE E XTENT OF PROFIT EARNED BY IT ON SUCH GOODS TO THE EXPORT HOUSE SUBJ ECT TO PROVISIONS OF SUB-SECTION (IB) OF SECTION 80HHC OF THE ACT. NOWHERE THE SECTION STIPULATES FOR ALLOWING DEDUCT ION UNDER SECTION 80HHC (LA) IT IS ALSO A CONDITION PRECEDENT THAT EXPORT HOUSE SHOULD HAVE ALSO MADE A PROFIT ON EXPORT OF T RADING GOODS. THE LEARNED ASSESSING OFFICER DISALLOWED THE CLAIM IN VIEW OF HIS ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 14 READING OF THE DECISION OF THE HON'BLE SUPREME COUR T IN THE CASE OF IPCA LABORATORY LTD., (SUPRA). WE FIND THAT IN T HE CASE OF IPCA LABORATORY LTD., (SUPRA) THE HON'BLE SUPREME COURT WAS CONFRONTED WITH THE CASE OF AN EXPORT HOUSE. THE AS SESSEE THERE WAS AN EXPORT HOUSE. THAT ASSESSEE SUFFERED A LOSS ON EXPORT OF TRADING GOODS. WHILE COMPUTING DEDUCTION ALLOWABLE UNDER SECTION 80 HHC OF THE ACT THE ASSESSEE IGNORED THE LOSS ON EXPORT OF TRADING GOODS ON THE GROUND THAT IT HAS ISSUED A DISCLAIMER CERTIFICATE UNDER SECTION 80 HHC (4A(B) OF THE ACT IN RESPECT OF TURNOVER OF TRADING GOODS. IN THIS CONTEXT, THE HO NBLE SUPREME COURT VIEWED THAT THE DISCLAIMER CERTIFICATE CAN BE GIVEN IN RESPECT OF PROFIT ONLY AND NOT IN RESPECT OF LOSS. IN OTHER WORDS, AS ASSESSEE WHO IS AN EXPORT HOUSE OR TRADING HOUSE IS ENTITLED TO REDUCE THE AMOUNT OF DEDUCTION ALLOWABLE UNDER S ECTION 80- HHC BY ISSUING A DISCLAIMER CERTIFICATE BUT THE ASS ESSEE CANNOT INCREASE THE AMOUNT OF DEDUCTION OTHERWISE ALLOWABL E UNDER SECTION 80 HHC BY ISSUING A DISCLAIMER CERTIFICATE. 21. THE DECISION IS AN AUTHORITY FOR THE PROPOSITIO N THAT AN EXPORT HOUSE OR TRADING HOUSE CANNOT INCREASE THE D EDUCTION OTHERWISE ALLOWABLE UNDER SECTION 80HHC BY ISSUING A CERTIFICATE UNDER SUB-SECTION (4A)(B) OF THE ACT IN RESPECT OF CERTAIN TURNOVER. 22. HOWEVER, ON CONSIDERATION OF THE FACTS OF THE C ASE, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE LEARNED ASSESSING OFFICER. THE LEARNED ASSESSIN G OFFICER NOTED IN THE ASSESSMENT ORDER THAT THE EXPORTER HAS EARNED A PROFIT ON EXPORT OF MANUFACTURED GOODS IN A SUM OF RS. 20,22,000/-. THE LEARNED ASSESSING OFFICER HOWEVER, CHOOSE TO CONSIDER THE LOSS SUFFERED ON EXPORT OF TRADING GOO DS WITH THE ASSESSEE IN A SUM OF RS. 1,54,000/- FOR THE PURPOSE OF REJECTING THE CLAIM OF THE ASSESSEE TREATING THEREBY THAT SIN CE THE EXPORT HOUSE M/S. CLARIANT INDIA LTD., HAS INCURRED LOSSES IN TRADING GOODS THEREFORE, CLAIM OF THE ASSESSEE HAVE TO BE R EJECTED BY APPLYING THE DECISION IN THE CASE OF IPCA LABORATOR IES. THE FINDINGS OF THE LEARNED ASSESSING OFFICER THUS CANN OT BE APPROVED IN THIS WAY BUT WE MAY ALSO NOTE HERE THAT AT PAGE-7 OF THE ASSESSMENT' ORDER THE LEARNED ASSESSING OFFICER MENTIONED THAT THE LEARNED ASSESSING OFFICER OF M/S. CLARIANT INDIA LTD., HAS POINTED OUT THAT THE RETURN FOR ASSESSMENT YEAR 2004-05 HAS SHOWN LOSS FROM TRADED GOODS. NO FACTS WERE GATHERE D WHETHER THE EXPORTER M/S. CLARIANT INDIA LTD. HAS IN FACT F ILED THE RETURN OF INCOME AT LOSS OR AT PROFIT BECAUSE IF ULTIMATEL Y PROFIT IS SHOWN IN THE RETURN OF INCOME ON EXPORT CONSIDERING BOTH MANUFACTURED ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 15 GOODS AND TRADING GOODS, PERHAPS THE LEARNED ASSESS ING OFFICER COULD NOT HAVE DENIED THE CLAIM OF THE ASSESSEE. TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT CONSID ERING THE FACTS PROPERLY AND WITHOUT GIVING ANY SPECIFIC FIND ING ON THE ISSUE AGREED WITH THE ASSESSEE'S SUBMISSION. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS THUS NOT ON FACTS AND IS IN CLEAR VIOLATION OF SECTION 250(6) OF THE I.T. AC T. SINCE THE ENTIRE FACTS HAVE NOT BEEN BROUGHT ON RECORD AND CONSIDERE D EITHER BY THE LEARNED ASSESSING OFFICER OR BY THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS}, WE ARE OF VIEW THE MATTER REQU IRES RE- CONSIDERATION BY THE LEARNED ASSESSING OFFICER. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND R ESTORE THE MATTER TO THE FILE OF LEARNED ASSESSING OFFICER FOR RE-CONSIDERATION' IN VIEW OF THE ABOVE OBSERVATION. THE LEARNED ASSESSING OFFICER SHALL GIVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS A RESULT, THIS GROU ND OF DEPARTMENTAL APPEAL IS ALLOWED IS FOR STATISTICAL P URPOSE. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING CASE LAWS RELIED UPON . WE HAVE OBSERVED THAT THE ASSESSEE IS A MANUFACTURER OF FROZEN FOODSTUFFS WHO EXPORTED LARGE PARTS OF ITS PRODUCTION THROUGH AN EXPORT HOUSE NAMELY AL LANA SONS LIMITED. THE ASSESSEE BEING A SUPPORTING MANUFACTURER, GOT A DIS CLAIMER CERTIFICATE FROM THE EXPORT HOUSE AS PRESCRIBED UNDER SUB SECTION 4A (B) OF SECTION 80 HHC OF THE ACT. THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80 HHC OF THE ACT ON DISCLAIMED TURNOVER OF RS. 39,07,97,779/- . THE ASS ESSEE HAS MADE CLAIM OF DEDUCTION U/S 80 HHC OF THE ACT ON THE PROFIT AROSE TO THE ASSESSEE ON THE SALES TO THE EXPORT HOUSE OF ITS MANUFACTURED GOODS WHICH WAS SPECIFIED AS ASSESSEES TURNOVER IN THE DISCLAIMER CERTIFICATE I SSUED BY THE EXPORT HOUSE IN FAVOUR OF THE ASSESSEE. NOW , VIDE TAXATION LAWS (AMENDMENT) ACT, 2005 , PROVISO 5 TO SECTION 80 HHC (3) OF THE ACT IS INSER TED W.E.F. 01-04-1992 WHEREBY THE 90% OF EXPORT INCENTIVES ARE TAKEN INTO ACCOUNT FOR THE PURPOSE OF COMPUTING DEDUCTION U/S 80 HHC OF THE ACT. THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT IS ALLOWED TO M/S ALLANASONS LIMIT ED IN VIEW OF THE AFORE- STATED AMENDMENT BROUGHT IN BY TAXATION LAWS (AMEND MENT) ACT, 2005 W.E.F. 01-04-1992 AS NOW THERE IS NO LOSS FROM EXPORT ACTI VITIES IN THE HANDS OF ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 16 ALLANA SONS LIMITED IF 90% EXPORT INCENTIVES RETAIN ED BY ALLANA SONS LIMITED ARE DULY CONSIDERED WHILE COMPUTING PROFITS ELIGIBL E FOR DEDUCTION U/S 80HHC OF THE ACT AS NOW M/S ALLANA SONS HAS POSITIVE PRO FITS AFTER ADJUSTING LOSS FROM EXPORT OF TRADED GOODS WITH THE PROFITS FROM E XPORT OF MANUFACTURED GOODS AFTER FACTORING 90% OF EXPORT INCENTIVES AS P ER FIFTH PROVISO TO SECTION 80HHC(3) OF THE ACT INSERTED VIDE TAXATION LAWS(AME NDMENT) ACT, 2005 W.E.F. 01-04-1992 , AND THEREBY DEDUCTION IS ALREADY ALLO WED BY REVENUE TO SAID ALLANA SONS LIMITED BY THE REVENUE VIDE ORDERS DATE D 23-05-2016 GIVING APPEAL EFFECT TO TRIBUNALS ORDER IN ITA NO. 6344/M UM/2013 DATED 06-04- 2014 IN THE CASE OF ALLANA SONS LIMITED FOR THE ASS ESSMENT YEAR 2002- 03(COPY PLACED ON RECORD), AND HENCE THE ASSESSEE BEING SUPPORTING MANUFACTURER HOLDING DISCLAIMER CERTIFICATE ISSUED BY ALLANA SONS LIMITED IS ALSO ENTITLED FOR DEDUCTION U/S 80 HHC OF THE ACT. THE HONBLE BOMBAY HIGH COURT HAS ALSO UPHELD THE ALLOWABILITY OF DEDUCTION U/S 80 HHC OF THE ACT TO ALLANA SONS LIMITED ON MERITS KEEPING IN VIEW INSER TION OF FIFTH PROVISO TO SECTION 80HHC(3) OF THE ACT BY TAXATION LAWS(AMENDM ENT) ACT, 2005 W.E.F. 01-04-1992. THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF M/S ALLANA SONS LTD. V. DCIT VIDE WRIT PETITION NO. 802 OF 2005 VI DE ORDERS DATED 22 ND JULY, 2014 HAS ALLOWED THE WRIT PETITION AND QUASHED THE REASSESSMENT NOTICE DATED 10-01-2005 ISSUED BY THE AO U/S 148 OF THE AC T, BY HOLDING AS UNDER:- IN ANY VIEW OF THE MATTER, THE STAND OF THE PETITI ONER ON WITH REGARD TO INTEREST INCOME BEING INCLUDED WHILE COMPUTING CLAIM FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS BEEN UPHELD NOT ONLY BY THE CIT(A) BUT ALSO BY THE TRIBUNAL IN ITS ORDER DATED 22 NOVEMBER 2006. BESIDES THE AMENDMENT TO SECTION 80H HC (3) OF THE ACT BY ADDITION OF FIFTH PROVISO THERETO WITH RETROSPECTIVE EFFECT WIL L WORK TO THE BENEFIT OF THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER, ALLOWING REASSESSMENT PROCEEDINGS WOULD BE A MERE ACADEMIC EXERCISE ONLY BECAUSE THE ASSESSING OFFICE R WOULD BOUND BY THE ORDERS OF THE TRIBUNAL. MOREOVER, THE VERY BASIS OF THE IMPUGNED NOTICE DATED 10 JANUARY 2005 WILL NOT BE SUSTAINABLE. IN VIEW OF ALL THE ABOVE REASO NS, WE SET ASIDE THE IMPUGNED NOTICE DATED 10 JANUARY 2005. ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 17 THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF OTH ER SUPPORTING MANUFACTURER TO ALLANA SONS LIMITED NAMELY FRIGORIF ICO ALLANA LIMITED AND ORS. IN CROSS APPEALS ACIT V. FRIGORIFICO ALLANA LI MITED AND ORS. VIDE ITA NO. 5513/MUM/2011 AND ORS. FOR THE ASSESSMENT YEARS 200 2-03 TO 2004-05 VIDE COMMON ORDERS DATED 27 TH JULY, 2016 HAS ALSO ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80HHC OF THE ACT. , KEEPING IN VIEW INSERTION OF FIFTH PROVISO TO SECTION 80HHC(3) OF THE ACT BY THE INTRODUCTION OF TAXATION LAWS (AMENDMENT) ACT, 2005 WITH EFFECT FROM 01-04-1992 , WHEREBY THE TRIBUNAL HAS HELD AS UNDER:- THESE APPEALS BELONG TO DIFFERENT ASSESSEES OF SAM E GROUP ARISING IN DIFFERENT ASSESSMENT YEARS INVOLVING IDENTICAL ISSU ES AND THEREFORE THESE WERE HEARD TOGETHER AND BEING DISPOSED BY THIS COMM ON ORDER. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI P.J. PARDIWALLA & MS. VASANTI PATEL, AUTHORISED REPRESEN TATIVES (ARS) ON BEHALF OF THE ASSESSEE AND BY SHRI G.M. DOSS & SHRI E. SHREEDHAR, DEPARTMENTAL REPRESENTATIVES (DRS) ON BEHALF OF THE REVENUE. FIRST WE SHALL TAKE UP APPEALS OF THE ASSESSEE & REVENU E IN THE CASE OF FRIGERIO CONSERVA ALLANA LTD IN ITA NO.4195/MU M/2011 & ITA NO. 5528/MUM/2011, RESPECTIVELY, FOR A.Y. 2000-01 : 3. GROUND NOS 1 & 2 OF ASSESSEES APPEAL AND GROUND NO.2 OF REVENUES APPEAL INVOLVE IDENTICAL ISSUE WITH REGAR D TO DENIAL OF DEDUCTION U/S 80HHC TO THE ASSESSEE ON THE GROUND T HAT DEDUCTION U/S 80HHC WAS DENIED TO THE MAIN EXPORTER ALSO, TO WHOM THE ASSESSEE (A SUPPORTING MANUFACTURER) HAD SOLD ITS GOODS. 3.1. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE IN DE TAIL AND ALSO GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS COPIES OF JUDGMENT PLACED BEFORE US. THE BRIEF BACKGROUND OF THIS CASE IS THAT ASSESSEE IS SUPPORTING MANUFACTURER, SELLING ITS GOODS TO THE E XPORT HOUSE NAMELY M/S. ALLANA SONS LTD, WHO HAD ISSUED DISCLAIMER CER TIFICATE IN FAVOUR OF THE ASSESSEE U/S 80HHC AND ACCORDINGLY, THE ASSESSE E CLAIMED BENEFIT OF DEDUCTION U/S 80HHC ON THE AMOUNT OF TURNOVER MA DE BY THE ASSESSEE TO THE EXPORT COMPANY. DURING THE COURSE O F REASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE SAID EXPORT HOUS E HAS BEEN DENIED THE BENEFIT OF DEDUCTION U/S 80HHC ON THE GROUND TH AT THE SAID EXPORT HOUSE COMPANY NAMELY M/S. ALLANA SONS LTD. (HERE I N AFTER REFERRED TO ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 18 AS ASL IN SHORT) HAD INCURRED LOSS IN CASE THE AM OUNT OF INCENTIVE IS NOT INCLUDED IN ITS EXPORT PROFITS. ACCORDINGLY, THE AO OF THE ASSESSEE WITHDREW THE BENEFIT OF CLAIM OF DEDUCTION U/S 80HH C IN THE CASE OF PRESENT ASSESSEE ALSO SOLELY ON THE GROUND WHEN THE MAIN EXPORTER I.E. ASL AS ITSELF BEING DENIED THE BENEFIT OF DEDUCTION U/S 80HHC, THEREFORE, CONSEQUENTLY, THE ASSESSEE SHOULD ALSO BE DENIED TH E BENEFIT OF DEDUCTION U/S 80HHC. ACCORDINGLY, THE CLAIM MADE BY THE ASSESSEE U/S 80HHC FOR RS.16,87,12,722/- ON THE TURNOVER OF RS.9 7,59,61,941/- (DISCLAIMED BY ASL IN FAVOUR OF THE ASSESSEE) WAS W ITHDRAWN BY THE AO. 3.2. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT(A) AND MADE EXHAUSTIVE SUBMISSIONS ON VARIOUS GROUNDS TO AGITATE THIS ADDITION. LD. CIT(A) ACCEPTED THE SUBMISSIONS OF TH E ASSESSEE IN PART AND ALLOWED THE BENEFIT OF DEDUCTION U/S 80HHC TO THE A SSESSEE ON THE GROUND THAT THE ASSESSEE IS ENTITLED FOR BENEFIT OF DEDUCTION U/S 80HHC WITHOUT DEPENDING UPON ACTUAL ALLOWABILITY OF DEDUC TION U/S 80HHC IN THE HANDS OF EXPORT HOUSE AND HE FURTHER HELD THAT IN ANY CASE THE EXPORT HOUSE HAS BEEN ACTUALLY ALLOWED THE DEDUCTION U/S 8 0HHC, AND THEREFORE, ON FACTS ALSO THE ASSESSEE IS ENTITLED F OR DEDUCTION U/S 80HHC. 3.3. BEING AGGRIEVED, THE REVENUE FILED AN APPEAL BEFOR E THE TRIBUNAL ON THE GROUND THAT LD. CIT(A) OUGHT NOT TO HAVE ALLOWE D THE BENEFIT OF DEDUCTION U/S 80HHC IN THE LIGHT OF JUDGMENT OF HON BLE SUPREME COURT IN THE CIT V. IPCA LABORATORIES LTD. 266 ITR 521 (S C) WHEREIN IT WAS HELD THAT IN CASE THERE WAS LOSS FROM EXPORT ACTIVITIES, THEN THE EXPORT HOUSE CANNOT PASS ON THE BENEFIT OF DEDUCTION U/S 80HHC B Y WAY OF ISSUE OF DISCLAIMER CERTIFICATE U/S 80HHC (4)(A) TO THE SUPP ORTING MANUFACTURER. 3.4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE DEFENDE D AND JUSTIFIED THE ORDER OF LD. CIT(A) FOR ALLOWING DEDUCTION U/S 80HHC ON MANY GROUNDS. HIS FIRST ARGUMENT WAS THAT DEDUCTION HAS BEEN ACTUALLY ALLOWED TO THE EXPORT HOUSE I.E. ASL BY THE TRIBUNA L AND ORDER OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT WHEREIN THE REOPENING DONE BY THE AO OF THE ASL HAS BEEN QU ASHED AND ON MERITS ALSO HONBLE HIGH COURT HAD FOUND THAT DEDUC TION U/S 80HHC WAS ALLOWABLE IN THE HANDS OF ASL AS PER LAW AND FA CTS. THUS, THE WHOLE PREMISE ON WHICH THE DEDUCTION WAS DISALLOWED IN TH E HANDS OF THE ASSESSEE CEASES TO EXIST AND THEREFORE THE DEDUCTIO N HAS TO BE ALLOWED TO THE ASSESSEE. SECOND ARGUMENT MADE BY THE ASSESSEE WAS THAT THIS CONTROVERSY HAS BEEN RESOLVED IN THE JUDGMENT OF HO NBLE BANGLORE BENCH IN THE CASE OF SHAMANUR KALLAPPA & SONS VS. A CIT 23 DTR (BANG)(TRIB) 269 WHICH HAS BEEN SUBSEQUENTLY UPHELD BY THE HONBLE KARNATAKA HIGH COURT BY VIDE ITS ORDER DATED 12 TH JANUARY 2015 IN ITA NO. 10/2009 BY HOLDING THAT DEDUCTION U/S 80HHC TO THE SUPPORTING MANUFACTURER IS ALLOWABLE INDEPENDENT OF ACTUAL ALL OWING OF DEDUCTION IN THE HANDS OF MAIN EXPORTER. THE THIRD ARGUMENT MADE BY THE LD. COUNSEL WAS THAT REOPENING WAS DONE IN THE CASE OF THE ASSE SSEE BY THE AO ON THE ISSUE OF DISALLOWANCE U/S 40A(3) ONLY AND NO IS SUE WAS RAISED IN THE ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 19 REASONS RECORDED WITH RESPECT TO DEDUCTION U/S 80 HHC. THE DISALLOWANCE MADE U/S 40A(3) HAS BEEN DELETED BY TH E LD. CIT(A) AGAINST WHICH REVENUE HAS NOT FILED ANY APPEAL. THU S, MAIN ISSUE ON WHICH REASONS WERE RECORDED HAS BEEN SETTLED AND THEREFORE, NO OTHER DISALLOWANCE WOULD BE SUSTAINABLE AS REOPENING WOUL D BECOME BAD IN LAW. 3.4. PER CONTRA, LD. DR RELIED UPON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF IPCA LABORATORIES LTD. V. CIT (SUPRA) AND RELIED UPON THE ORDER OF THE AO. WE HAVE CONSIDERED THE ENTIRE MATRIX AND FACTS OF THIS CASE AND COPIES OF JUDGMENT PLACED BEFORE US. BEFORE GOING DEEPER IN DETAILS, IT HAS BEEN NOTED BY US AT THE OUTSET THAT DEDUCTION U/S 80HHC IN THE HANDS OF ASL (I.E. EXPORT HOUSE) HAS BEEN FO UND TO BE ALLOWABLE BY HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. ALLAN A SONS LTD. V. DCIT WRIT PETITION NO.802 OF 2005 DATED 22 ND JULY 2014 WHEREIN IT WAS HELD THAT REOPENING OF THE ASSESSMENT IN THE HANDS OF M/ S. ALLANA SONS LTD. WAS NOT VALID AS PER LAW AND THE SAME WAS QUASHED W ITH FOLLOWING OBSERVATIONS: WE HAVE CONSIDERED THE RIVAL SUBMISSION. IT IS WEL L SETTLED THAT A NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 148 O F THE ACT CAN ONLY BE ISSUED IF THE ASSESSING OFFICER HAS REASON TO BELIE VE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THIS REAS ON TO BELIEVE ON THE PART OF THE ASSESSING OFFICER HAS NOT TO BE ON THE BASIS OF CHANGE OF OPINION I.E. WHERE ASSESSING OFFICER HAS HAD OCCASI ON TO CONSIDER AN ISSUE DURING THE ASSESSMENT PROCEEDING UNDER SECTIO N 143(3) OF THE ACT. IN THIS CASE, THE ASSESSING OFFICER HAD DURING THE PROCEEDING UNDER SECTION 143(3) OF THE ACT RAISED QUERIES TO THE PET ITIONER SPECIFICALLY WITH REGARD TO PETITIONERS CLAIM FOR DEDUCTION UNDER SE CTION 80HHC OF THE ACT AND THE PETITIONERS RESPONSE TO THE SAME WAS CONSI DERED BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R. THEREFORE, THE IMPUGNED NOTICE AND THE GROUNDS IN SUPPORT THEREOF ARE IN FACT A CHANGE OF PINION ON THE PART OF THE ASSESSING OFFICER. THE REFORE, ON THE AFORESAID GROUND ALONE IMPUGNED NOTICE IS NOT SUSTAINABLE. 3.5. IT IS FURTHER NOTED BY US THAT, ON MERITS ALSO HON BLE HIGH COURT OBSERVED THAT DEDUCTION U/S 80HHC WAS ACTUALLY ALLOWABLE TO THE SAID EXPORT HOUSE THE OBSERVATIONS OF THE HONBLE HIGH COURT ARE VERY USE FUL AND THESE ARE REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENC E: IN ANY VIEW OF THE MATTER, THE STAND OF THE PETITI ONER ON MERITS WITH REGARD TO INTEREST INCOME BEING INCLUDED WHILE COMP UTING THE CLAIM FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT HAS BEEN U PHELD NOT ONLY BY THE CIT(A) BUT ALSO BY THE TRIBUNAL IN ITS ORDER DA TED 22 NOVEMBER 2006. BESIDES THE AMENDMENT TO SECTION 80HHC(3) OF THE AC T BY ADDITION OF FIFTH PROVISO THERETO WITH RETROSPECTIVE EFFECT WIL L WORK TO THE BENEFIT OF THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER, AL LOWING REASSESSMENT ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 20 PROCEEDINGS WOULD BE A MERE ACADEMIC EXERCISE ONLY BECAUSE THE ASSESSING OFFICER WOULD BE BOUND BY THE ORDERS OF T HE TRIBUNAL. MOREOVER, THE VERY BASIS OF THE IMPUGNED NOTICE DAT ED 10 JANUARY 2005 WILL NOT BE SUSTAINABLE. IN VIEW OF ALL THE ABOVE R EASONS, WE SET ASIDE THE IMPUGNED NOTICE DATE 10 TH JANUARY 2005. 3.6. THUS, IT IS NOTED BY US THAT THE HONBLE HIGH COUR T HAS NOT ONLY QUASHED THE REASSESSMENT ORDER BUT ALSO HELD THAT DEDUCTION U/S 80HHC IS ACTUALLY ALLOWABLE TO ASL. IT IS FURTHER NOTED BY US THAT IT HAS BEEN HELD BY HONBLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORTS & O THERS DATED 02.07.2012 THAT THE AMENDMENT MADE BY TAXATION LAWS (AMENDMENT ) ACT 2005 IN SECTION 80HHC TO CURTAIL THE BENEFIT OF U/S 80HHC ON THE AM OUNT OF INCENTIVE RECEIVED BY THE MAIN EXPORTERS WOULD NOT OPERATE RETROSPECTI VE. THUS, IF WE CONSIDER ON FACTS THE CASE OF ASL ON MERITS ALSO, IT IS NOTED T HAT AFTER INCLUDING AMOUNT OF INCENTIVES THERE WOULD ARISE POSITIVE AMOUNT OF PRO FIT. THUS, VIEWED FROM ANY ANGLE, AND KEEPING IN VIEW THE FACT THAT WHEN DEDUC TION U/S 80HHC HAS BEEN ACTUALLY ALLOWED IN THE HANDS OF ASL I.E. EXPORT HO USE, THEREFORE, THE WHOLE PREMISES OF THE AO BASED UPON WHICH THE DEDUCTION W AS DENIED TO THE ASSESSEE, CEASES TO EXIST. UNDER THESE FACTS AND CI RCUMSTANCES, WE FIND THAT LD. CIT(A) HAS RIGHTLY ALLOWED THE BENEFIT OF DEDUC TION U/S 80HHC TO THE ASSESSEE AND THEREFORE, WE FIND NOTHING WRONG IN TH E ORDER OF LD. CIT(A) AND THEREFORE, THE SAME IS UPHELD. SINCE, WE HAVE ALLOW ED THE RELIEF TO THE ASSESSEE ON THE FIRST ARGUMENT ITSELF THEREFORE, WE TREAT OT HER ARGUMENTS AS ACADEMIC IN NATURE AND THEREFORE, WE ARE NOT DEALING WITH THE S AME AT THIS STAGE. AS A RESULT, GROUNDS RAISED BY THE REVENUE IN THIS APPEA L ARE DISMISSED AND GROUNDS RAISED BY THE ASSESSEE MAY BE TREATED AS ALLOWED. IT IS ALSO NOTED THAT HONBLE APEX COURT IN THE CA SE OF CIT V. AVANI EXPORTS VIDE ORDER DATED 30/03/3015 , DULY CONSIDERED THE A MENDMENT IN SECTION 80HHC(3) WITH RETROSPECTIVE EFFECT FROM 01/04/1992 SUBSTITUTED THE FOLLOWING IN THE DIRECTION OF THE HONBLE HIGH COURT:- HAVING SEEN THE TWIN CONDITIONS AND SINCE 80HHC BE NEFIT IS NOT AVAILABLE AFTER 04/04/2005 , WE ARE SATISFIED THAT CASES OF EXPORTERS HAVING A TURNOVER BELOW AND THOSE ABOVE 10 CRORE SH OULD BE TREATED SIMILARLY. THIS ORDER IS IN SUBSTITUTION OF THE JUD GMENT IN APPEAL. THUS IN LIGHT OF OUR DETAILED DISCUSSIONS AS SET OU T ABOVE, WE RESTORE THE MATTER TO THE FILE OF THE AO FOR COMPUTING DEDUCTIO N ALLOWABLE TO THE ASSESSEE U/S 80HHC OF THE ACT IN ACCORDANCE WITH LAW . THE A SSESSEE IS DIRECTED TO APPEAR BEFORE THE AO AND PRODUCE ALL RELEVANT EVIDE NCES AND EXPLANATIONS IN ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 21 SUPPORT OF ITS CONTENTIONS. THE AO SHALL PROVIDE PR OPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCOR DANCE WITH LAW IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE. THIS DISPOSES OF APPEAL IN ITA NO. 4056/MUM/2011 FILED BY THE ASSESSEE FOR THE ASS ESSMENT YEAR 2002-03. WE ORDER ACCORDINGLY. 9. IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES AS INDICATED IN OUR ABOVE ORDER. REVENUE APPEAL IN THE CASE OF ACIT V. ALLANA FROZEN FOODS PRIVATE LIMITED IN ITA NO. 5534/MUM/2011 FOR ASSESSMENT YEA R 2002-03 10. OUR ABOVE DECISION IN ITA NO. 4056/MUM/2011 FOR ASSESSMENT YEAR 2002-03 IN PRECEDING PARA SHALL APPLY MUTATIS MUTAN DIS TO THE REVENUES APPEAL IN ITA NO. 5534/MUM/2011 AS IDENTICAL ISSUE IS INVOLVED. THUS, REVENUE APPEAL IN ITA NO. 5534/MUM/2011 FOR ASSESSM ENT YEAR 2002-03 IS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDIN GLY. 11. IN THE RESULT , REVENUE APPEAL IN ITA NO. 5534/ MUM/2011 FOR ASSESSMENT YEAR 2002-03 IS ALLOWED FOR STATISTICAL PURPOSES. ASSESSEES APPEAL IN THE CASE OF ALLANA COLD STORAG E LIMITED V. DCIT IN ITA NO. 4121/MUM/2011 FOR ASSESSMENT YEAR 2003-04 A ND REVENUE APPEAL IN ITA NO. 5548/MUM/2011 FOR ASSESSMENT YEAR 2003-04 IN THE CASE OF ACIT V. ALLANA COLD STORAGE LIMITED. 12. OUR ABOVE DECISION IN ITA NO. 4056/MUM/2011 FOR ASSESSMENT YEAR 2002-03 IN PRECEDING PARAS IN THE CASE OF ALLANA F ROZEN FOODS LIMITED SHALL APPLY MUTATIS MUTANDIS TO THE ASSESSEES APPEAL IN ITA NO. 4121/MUM/2011 AS WELL TO THE REVENUES APPEAL IN ITA NO. 5548/MUM /2011 AS IDENTICAL ISSUES ARE INVOLVED. THUS, BOTH THE ASSESSEES APP EAL IN ITA NO. ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 22 4121/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5548/MU M/2011 FOR ASSESSMENT YEAR 2003-04 ARE ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 13. IN THE RESULT , BOTH THE ASSESSEES APPEAL IN I TA NO. 4121/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5548/MUM/2011 FOR ASS ESSMENT YEAR 2003- 04 ARE ALLOWED FOR STATISTICAL PURPOSES. ASSESSEES APPEAL IN THE CASE OF ALLANA COLD STORAG E LIMITED V. DCIT IN ITA NO. 4110/MUM/2011 FOR ASSESSMENT YEAR 2004-05 A ND REVENUE APPEAL IN ITA NO. 5518/MUM/2011 FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF ACIT V. ALLANA COLD STORAGE LIMITED. 14. OUR ABOVE DECISION IN ITA NO. 4056/MUM/2011 FOR ASSESSMENT YEAR 2002-03 IN PRECEDING PARAS IN THE CASE OF ALLANA F ROZEN FOODS LIMITED WITH RESPECT TO ALLOWABILITY OF DEDUCTION U/S 80HHC OF T HE ACT TO A SUPPORTING MANUFACTURER SHALL APPLY MUTATIS MUTANDIS TO THE AS SESSEES APPEAL IN ITA NO. 4110/MUM/2011 AS WELL TO THE REVENUES APPEAL I N ITA NO. 5518/MUM/2011 AS IDENTICAL ISSUES ARE INVOLVED. TH US, BOTH THE ASSESSEES APPEAL IN ITA NO. 4110/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5518/MUM/2011 FOR ASSESSMENT YEAR 2004-05 ARE ALLOW ED FOR STATISTICAL PURPOSES, SO FAR AS ALLOWABILITY OF DEDUCTION U/S 8 0HHC OF THE ACT TO A SUPPORTING MANUFACTURER IS CONCERNED. WE ORDER ACCO RDINGLY. 15. THE REVENUE IN ITA NO 5518/MUM/2011 IS ALSO AGG RIEVED BY THE DECISION OF THE LEARNED CIT(A) IN RESTORING THE ISS UE OF DISALLOWANCE OF EXPENDITURE OF RS. 2,00,000/- U/S 14A OF THE ACT I NCURRED IN RELATION TO EARNING OF EXEMPT INCOME AS MADE BY THE AO. THE REV ENUE HAS RAISED FOLLOWING GROUND OF APPEAL WITH RESPECT TO DISALLOW ANCE OF EXPENDITURE U/S 14A OF THE ACT IN RELATION TO EARNING OF EXEMPT INC OME, IN MEMO OF APPEAL FILED WITH THE TRIBUNAL : ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 23 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT(A) IS RIGHT IN RESTORING TH E ISSUE OF DISALLOWANCE OF RS. 2,00,000/- U/S. 14A AS PER RULE 8D TO THE ASSESSING OFFICER'S FILE AND DIRECTING THAT DISALLO WANCE TO BE AS PER IMMEDIATE PRECEDING YEAR IN THE LIGHT OF OBSERVATIO N OF JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ BOY CE MFG. CO. LTD. VS. DCIT 234 ITR 1 (BOM.) AS THE DECISION OF HON'BL E BOMBAY HIGH COURT IS NOT ACCEPTED BY THE DEPARTMENT. 16. THE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS. 19,61,241/- AND CLAIMED EXEMPTION U/S 10(34) OF THE ACT. THE ASSESS EE HAS NOT SHOWN ANY EXPENDITURE ON THE EARNING OF THE DIVIDEND INCOME. THE AO INVOKED THE PROVISIONS OF SECTION 14A OF THE ACT. THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE WHICH NEE DS TO BE DISALLOWED U/S 14A OF THE ACT. IT WAS SUBMITTED THAT THERE ARE NO NEW INVESTMENTS MADE DURING THE YEAR AND THE DIVIDEND IS EARNED ON INVES TMENTS MADE IN THE PAST. THE DIVIDEND IS REPRESENTED BY ONLY FOUR DIVIDEND W ARRANTS. HOWEVER THE A.O. WAS OF THE VIEW THAT EVERY INCOME HAS A BEARING ON THE PROFIT AND LOSS ACCOUNT DIRECTLY OR INDIRECTLY. SINCE IT WAS DIFFI CULT TO ASCERTAIN TO WHAT EXTENT THE EXPENSES DEBITED TO P&L ACCOUNT RELATED TO EARNING OF DIVIDEND INCOME, THE A.O. DISALLOWED AN AMOUNT OF EXPENDITUR E OF RS. 2,00,000/- ON AD-HOC BASIS (FOR ASSESSMENT YEAR 2004-05) INCURRED IN RELATION TO EARNING OF EXEMPT INCOME U/S 14A OF THE ACT, VIDE ASSESSMENT O RDER DATED 26-12-2006 PASSED U/S 143(3) OF THE ACT. 17. AGGRIEVED BY THE ASSESSMENT ORDER DATED 26-12- 2006 PASSED BY THE A.O., THE ASSESSEE FILED ITS FIRST APPEAL BEFORE TH E LD. CIT(A) WHEREBY THE ASSESSEE CONTENDED THAT AS PER THE ORDER OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. V. DCIT REPORTED IN (2010) 328 ITR 81(BOM HC), ANY DISALLOWANCE OF EXPENDITURE INCURRE D IN RELATION TO EARNING OF EXEMPT INCOME U/S 14A SHOULD BE RESTRICTED TO A REASONABLE ESTIMATION OF THE EXPENSES INCURRED TO EARN EXEMPT INCOME. THE LD . CIT(A) AFTER CONSIDERING ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 24 THE ORDER OF THE A.O. AND THE SUBMISSION OF THE ASS ESSEE OBSERVED THAT THE A.O. HAS MADE THE DISALLOWANCE AS PER CLAUSE (III) OF RULE 8D(2) OF THE INCOME- TAX RULES, 1962. THE LD. CIT(A) HELD THAT THE A.O. IS NOT JUSTIFIED IN MAKING THE DISALLOWANCE ON AD-HOC LUMP-SUM BASIS KEEPING I N VIEW THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD.(SUPRA), WHEREBY RULE 8D IS APPLICABLE FROM AS SESSMENT YEAR 2008-09 ONWARDS. THE LD. CIT(A) HELD THAT THE A.O. SHOULD GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE FOR WORKING OUT THE DIS ALLOWANCE OF EXPENDITURE INCURRED BY THE ASSESSEE RELATED TO EXEMPT INCOME A ND ACCORDINGLY THE LEARNED CIT(A) SET ASIDE THE MATTER BACK TO THE FIL E OF THE A.O. FOR DE-NOVO DETERMINATION OF THE DISALLOWANCE OF EXPENDITURE IN CURRED IN RELATION TO EARNING OF EXEMPT INCOME IN ACCORDANCE WITH DECISIO N OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. L TD.(SUPRA), VIDE APPELLATE ORDERS DATED 15-03-2011 PASSED BY LEARNED CIT(A). 18. AGGRIEVED BY THE APPELLATE ORDER DATED 15-03-20 11 PASSED BY THE LD. CIT(A), THE REVENUE FILED THIS APPEAL BEFORE THE T RIBUNAL. 19. THE LD. D.R. SUBMITTED THAT THE A.O. HAS RIGHTL Y MADE THE DISALLOWANCE OF RS.2,00,000/- ON LUMP-SUM AD-HOC BASIS U/S 14A O F THE ACT IN ASSESSEES CASE. 20. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED AND CONCEDED THAT THIS MATTER CAN BE SET ASIDE TO THE FILE OF THE A.O. WHO CAN MAKE DISALLOWANCE HAVING REGARDS TO THE ASSESSEES ACCOUNT AS PER MA NDATE OF SECTION 14A OF THE ACT. IT WAS SUBMITTED THAT RULE 8D OF INCOME-TA X RULES, 1962 IS NOT APPLICABLE TO THE IMPUGNED ASSESSMENT YEAR UNDER AP PEAL , AS THE INSTANT ASSESSMENT YEAR UNDER APPEAL IS ASSESSMENT YEAR 200 4-05 WHICH IS PRIOR TO THE ASSESSMENT YEAR 2008-09 , AND RULE 8D OF INCOM E-TAX RULES, 1962 IS APPLICABLE FROM ASSESSMENT YEAR 2008-09 IN VIEW OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG . CO. LTD.(SUPRA) ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 25 21. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND AL SO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE A.O. HAS MADE AD-HOC LUMP- SUM DISALLOWANCE OF RS. 2,00,000/- TOWARDS EXPENDITURE INCURRED IN RELATION TO EARNING OF EXEMPT INCOME , WITHOUT HAVING REGARDS TO THE ACCOUNTS OF THE ASSESSEE AS PER MANDATE OF SECTION 14A(2) OF THE ACT. WE ARE OF T HE CONSIDERED VIEW THAT THE APPEAL UNDER CONSIDERATION IS PRIOR TO ASSESSMENT Y EAR 2008-09 AND HENCE RULE 8D OF INCOME-TAX RULES, 1962 IS NOT APPLICABLE TO THE IMPUGNED ASSESSMENT YEAR UNDER APPEAL. KEEPING IN VIEW THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG . CO. LTD.(SUPRA), THE DISALLOWANCE U/S 14A OF THE ACT SHOULD BE RESTRICTE D TO A REASONABLE ESTIMATION HAVING REGARDS TO THE ACCOUNTS OF THE A SSESSEE. IN OUR CONSIDERED VIEW , THE LD. CIT(A) HAS RIGHTLY SET ASIDE AND RES TORED THE ISSUE BACK TO THE FILE OF THE A.O. FOR WORKING OUT REASONABLE DISALLO WANCE U/S 14A OF THE ACT. WE DO NOT ANY INFIRMITY IN THE ORDER OF THE LD. CIT (A) AND ACCORDINGLY THE SAID APPELLATE ORDER OF LEARNED CIT(A) IS SUSTAINED AND CONFIRMED AND THE AO IN REMAND PROCEEDINGS SHALL WORK OUT REASONABLE DISALL OWANCE OF EXPENDITURE INCURRED IN RELATION TO EARNING OF EXEMPT INCOME HA VING REGARDS TO THE ACCOUNTS OF THE ASSESSEE IN ACCORDANCE WITH MANDATE OF SECTION 14A(2) OF THE ACT. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE AO AND PRODUCE ALL RELEVANT EVIDENCES AND EXPLANATIONS IN SUPPORT OF ITS CONTEN TIONS. THE AO SHALL PROVIDE PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW IN ACCORDANCE WITH PRINCIPLES O F NATURAL JUSTICE. THIS DISPOSES OF GROUND NO 2 RAISED BY THE REVENUE IN ME MO OF APPEAL FILED WITH THE TRIBUNAL. WE ORDER ACCORDINGLY. 22. IN THE RESULT, BOTH THE ASSESSEES APPEAL IN IT A NO. 4110/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5518/MUM/2011 FOR ASS ESSMENT YEAR 2004- 05 ARE ALLOWED FOR STATISTICAL PURPOSES. ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 26 ASSESSEES APPEAL IN THE CASE OF ALLANA INVESTMENT AND TRADING COMPANY LIMITED V. DCIT IN ITA NO. 4185/MUM/2011 FOR ASSESS MENT YEAR 2004- 05 AND REVENUE APPEAL IN ITA NO. 5533/MUM/2011 FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF ACIT V. ALLANA INVESTMENT AN D TRADING COMPANY LIMITED. 23. OUR ABOVE DECISION IN ITA NO. 4110/MUM/2011 FOR ASSESSMENT YEAR 2004-05 IN PRECEDING PARAS IN THE CASE OF ALLANA C OLD STORAGE LIMITED SHALL APPLY MUTATIS MUTANDIS TO THE ASSESSEES APPEAL IN ITA NO. 4185/MUM/2011 AS WELL TO THE REVENUES APPEAL IN ITA NO. 5533/MUM /2011 AS IDENTICAL ISSUES ARE INVOLVED. THUS, BOTH THE ASSESSEES APP EAL IN ITA NO. 4185/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5533/MU M/2011 FOR ASSESSMENT YEAR 2004-05 ARE ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 24. IN THE RESULT, BOTH THE ASSESSEES APPEAL IN IT A NO. 4185/MUM/2011 AND REVENUE APPEAL IN ITA NO. 5533/MUM/2011 FOR ASS ESSMENT YEAR 2004- 05 ARE ALLOWED FOR STATISTICAL PURPOSES. 25. IN THE RESULT, ALL THE ASSESSEES APPEAL AND RE VENUES APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JANUARY, 2017. # $% &' 02-01-2017 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 02-01-2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 4056/MUM/2011, ITA 5534/MUM/11 ITA 5548/MUM/2011, ITA 4121/MUM/11, ITA 5533/MUM/2011, ITA 5518/MUM/11, ITA 4185/MUM/11 & ITA 4110/MUM/11 27 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI A BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI