Indian Sugar Exim Corporation Ltd, V. Addl. CIT Range II,

ITA 4159/DEL/2006

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6497 (ITAT-DELHI)
• Duration Of Justice: 9 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 14-03-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 15-12-2006
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Keywords: Retrospective amendment
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 4159/DEL/2006 4159/DEL/2006 4159/DEL/2006 4159/DEL/2006 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2003 2003 2003 2003 - -- - 04 0404 04 M/S INDIAN SUGAR EXIM M/S INDIAN SUGAR EXIM M/S INDIAN SUGAR EXIM M/S INDIAN SUGAR EXIM CORPORATION LIMITED, CORPORATION LIMITED, CORPORATION LIMITED, CORPORATION LIMITED, C CC C- -- -BLOCK, BLOCK, BLOCK, BLOCK, 2 22 2 ND NDND ND FLOOR, FLOOR, FLOOR, FLOOR, ANSAL PLAZA, ANSAL PLAZA, ANSAL PLAZA, ANSAL PLAZA, AUGUST KRANTI MARG, AUGUST KRANTI MARG, AUGUST KRANTI MARG, AUGUST KRANTI MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110049. 110049. 110049. 110049. PAN : AAACI1163M. PAN : AAACI1163M. PAN : AAACI1163M. PAN : AAACI1163M. VS. VS. VS. VS. ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF ADDITIONAL COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, RANGE RANGE RANGE RANGE- -- -11, 11, 11, 11, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. RAKESH GUPTA, SHRI SOMIL AGGARWAL, ADVOCATES AND SHRI SUMIT JAIN, CA. RESPONDENT BY : SHRI P. DAM KANUNJNA, SENIOR DR. DATE OF HEARING : 16.03.2016 16.03.2016 16.03.2016 16.03.2016 DATE OF PRONOUNCEMENT : 17.03.2016 17.03.2016 17.03.2016 17.03.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2003-04 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XIII, NEW DELHI DATED 3 RD OCTOBER, 2006. 2. THIS APPEAL WAS ORIGINALLY DECIDED BY THE ITAT V IDE ORDER DATED 19 TH MARCH, 2010. HOWEVER, THE ABOVE ORDER WAS PARTIAL LY RECALLED VIDE ORDER DATED 23 RD MAY, 2014 IN MISCELLANEOUS APPLICATION NO.89/DEL/2013. ACCORDINGLY, GROUND NO.1 OF THE AS SESSEES APPEAL WAS RECALLED FOR READJUDICATION ON MERITS. 3. GROUND NO.1 OF THE ASSESSEES APPEAL READS AS UN DER:- ITA-4159/DEL/2006 2 1. A) THAT THE LEARNED CIT(A) ERRED, BOTH ON FACTS AND IN LAW IN SUSTAINING A DISALLOWANCE OF RS.4,67, 11,767/- ON ACCOUNT OF DEDUCTION U/S 80HHC ON DEPB/DFRC. B) THE LEARNED CIT(A) HAS GROSSLY ERRED IN IGNORING ALL THE WRITTEN SUBMISSIONS FILED BEFORE THE LD.CIT(A) AND SUSTAINING THE DISALLOWANCE MADE BY ASSESSING OFFIC ER WITHOUT GIVING ANY REASONS OF WHATSOEVER NATURE AS TO HOW THE CONDITIONS FOR CLAIMING OF DEDUCTION U/S 80HHC ON DEPB/DFRC HAS NOT BEEN FULFILLED BY THE ASSESSEE. C) THE LEARNED CIT(A) HAS FURTHER ERRED IN HOLDING THAT TO THE EXTENT OF INCREASE IN INCOME IN VIEW OF DISALLOWANCES, DEDUCTION U/S 80HHC WOULD NOT INCREA SE AS THE ASSESSEE IS NOT ENTITLED TO ANY DEDUCTION U/S 8 0HHC. 4. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER HAD REDUCED THE ASSESSEES CLAIM OF DEDUCTION U/S 80HHC ON THE GROU ND THAT EXPORT INCENTIVE INCOME RECEIVED FROM SALE OF DEPB LICENSE IS NOT ELIGIBLE FOR THE PURPOSE OF CALCULATION OF DEDUCTION U/S 80HHC. HE SUBMITTED THAT THIS GROUND OF APPEAL WAS NOT PRESSED AT THE TIME O F HEARING BEFORE THE ITAT BECAUSE THERE WAS A RETROSPECTIVE AMENDMENT IN SECTION 80HHC. HOWEVER, HONBLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORTS & ORS. VS. CIT & ORS. [2012] 348 ITR 391 (GUJ) HAS HELD THE AMENDMENT TO SECTION 80HHC TO BE PROSPECTIVE. THAT THE REVEN UE AS WELL AS THE ASSESSEE BOTH HAVE FILED APPEALS BEFORE HON'BLE SUP REME COURT OF INDIA AND, THE HONBLE APEX COURT IN SPECIAL LEAVE APPEAL NOS.9273/2013, NOT ONLY UPHELD THE FINDING OF HONB LE GUJARAT HIGH COURT IN AVANI EXPORTS & ORS. (SUPRA) THAT AMENDMEN T IN SECTION 80HHC IS PROSPECTIVE, BUT FURTHER HELD THAT THE ASS ESSEE WOULD BE ENTITLED TO DEDUCTION U/S 80HHC, WHETHER THE TURNOV ER OF THE ASSESSEE IS BELOW `10 CRORES OR ABOVE `10 CRORES. HE, THERE FORE, SUBMITTED THAT THE ASSESSING OFFICER MAY BE DIRECTED TO ALLOW DEDU CTION U/S 80HHC AS CLAIMED BY THE ASSESSEE. ITA-4159/DEL/2006 3 5. LEARNED DR, ON THE OTHER HAND, STATED THAT THE M ATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR RE-DETERMINATION OF DEDUCTION U/S 80HHC IN THE LIGHT OF THE ABOVE DECIS ION OF HONBLE APEX COURT. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDE S AND THE FACTS OF THE CASE, WE AGREE WITH THE SUBMISSION OF THE LE ARNED DR AND SET ASIDE THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80 HHC TO THE ASSESSING OFFICER. WE DIRECT HIM TO RECOMPUTE THE DEDUCTION U/S 80HHC IN THE LIGHT OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF AVANI EXPORTS & ANR. IN APPEAL NO.9273/2013. 7. GROUND NO.1 OF THE ASSESSEES APPEAL IS DISPOSED OF AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 17.03.2016 . SD/- SD/- (BEENA A. PILLAI (BEENA A. PILLAI (BEENA A. PILLAI (BEENA A. PILLAI ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S INDIAN SUGAR EXIM CORPORATI M/S INDIAN SUGAR EXIM CORPORATI M/S INDIAN SUGAR EXIM CORPORATI M/S INDIAN SUGAR EXIM CORPORATION LIMITED, ON LIMITED, ON LIMITED, ON LIMITED, C CC C- -- -BLOCK, 2 BLOCK, 2 BLOCK, 2 BLOCK, 2 ND NDND ND FLOOR, ANSAL PLAZA, FLOOR, ANSAL PLAZA, FLOOR, ANSAL PLAZA, FLOOR, ANSAL PLAZA, AUGUST KRANTI MARG, NEW DELHI AUGUST KRANTI MARG, NEW DELHI AUGUST KRANTI MARG, NEW DELHI AUGUST KRANTI MARG, NEW DELHI 110049. 110049. 110049. 110049. 2. RESPONDENT : ADDITIONAL COMMISSIONER OF INCOME T AX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE RANGE RANGE RANGE- -- -11, NEW DELHI. 11, NEW DELHI. 11, NEW DELHI. 11, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR