Gulati Exports House, V. DCIT Circle 26 (1),

ITA 4349/DEL/2006

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4091 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 29-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 28-12-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Set aside
• 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 BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) (DELHI BENCH G : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHHA, ACCOUNT MEMBER SHRI SHAMIM YAHHA, ACCOUNT MEMBER SHRI SHAMIM YAHHA, ACCOUNT MEMBER SHRI SHAMIM YAHHA, ACCOUNT MEMBER ITA NO.4349/DEL./2006 ITA NO.4349/DEL./2006 ITA NO.4349/DEL./2006 ITA NO.4349/DEL./2006 (ASSESSMENT YEAR : 2004 (ASSESSMENT YEAR : 2004 (ASSESSMENT YEAR : 2004 (ASSESSMENT YEAR : 2004- -- -05) 05) 05) 05) GULATI EXPORT HOUSE, GULATI EXPORT HOUSE, GULATI EXPORT HOUSE, GULATI EXPORT HOUSE, VS. VS. VS. VS. DCIT, CIRCLE 26(1), DCIT, CIRCLE 26(1), DCIT, CIRCLE 26(1), DCIT, CIRCLE 26(1), F FF F- -- -66, RAJOURI GARDEN, 66, RAJOURI GARDEN, 66, RAJOURI GARDEN, 66, RAJOURI GARDEN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. DELHI DELHI DELHI DELHI- -- -110027. 110027. 110027. 110027. (PAN/GIR NO. : AAAFG5723G) (PAN/GIR NO. : AAAFG5723G) (PAN/GIR NO. : AAAFG5723G) (PAN/GIR NO. : AAAFG5723G) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE REVENUE BY : MS. BANITA DELVI, DR REVENUE BY : MS. BANITA DELVI, DR REVENUE BY : MS. BANITA DELVI, DR REVENUE BY : MS. BANITA DELVI, DR ORDER ORDER ORDER ORDER PER A.D. JAIN: JM PER A.D. JAIN: JM PER A.D. JAIN: JM PER A.D. JAIN: JM THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004 -05, IN WHICH THE FOLLOWING GROUNDS WERE RAISED: 1. ON THE POINTS OF FACTS AND ON THE POINTS OF LAW THE DISALLOWANCES OF CLAIM U/S 80HHC OF I.T. ACT, 1961, AMOUNTING TO RS.54,76, 286 IS WRONG AS THE AMENDMENT IN THE ACT AND CBDT CIRCULAR WAS ISSUED O N 17.01.2006, WHEREAS THE I.T. RETURN WAS FILED ON 29.10.2004, AS PER LAW. 2. ONE THE POINTS OF FACTS AND ON THE POINTS OF LAW IT WAS WRONG TO OUT RIGHT REJECT THE PROVISION OF SECTION 295(4) OF I.T.ACT, 1961 WHICH RESTRICTS/DEBARS ENACTMENT OF RULES AMENDING LAW WI TH RETROSPECTIVE EFFECT. 3. DIFFERENTIATING RETURN AND BUSINESS MAY ON THE B ASIS OF THEIR EXPORT PERFORMANCE AND WITHDRAWING LEGITIMATE BENEFITS ON THE BASIS OF BETTER PERFORMANCE (ABOVE RS.10 CRORES) EXPORT IS WRONG AN D ULTRA VIRUS. 4. THE ADDITIONS MADE TO THE RETURNED INCOME BY DIS ALLOWING CLAIM U/S 80 HHC BE SET ASIDE AND RELIEF BE GRANTED TO EH ASSESS EE. 2. AT THE TIME OF HEARING OF THE APPEAL, NEITHER THE ASSESSEE NOR ANY OF HIS AUTHORIZED REPRESENTATIVE WERE PRESENT, ALTHOUGH, T HE LAST NOTICE FOR HEARING THE APPEAL FIXED FOR 29.04.2011 WAS SENT AT THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO.36. THE SAME HAS NOT RETURNED UNSERVED. EARLIER ON A NUMBE R OF OCCASIONS, THE HEARINGS WERE ADJOURNED AS NONE ATTENDED BY OR ON BEHALF OF THE A SSESSEE. IT IS THUS INFERRED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. THE APPEAL OF THE ASSESSEE IS, THEREFORE, DISMISSED AS UNADMITTED FOLLOWING THE RATIO OF DECI SIONS RENDERED IN THE FOLLOWING CASES: 1. IN THE CASE OF CIT VS. B.N. BHATTACHARGEE AND AN OTHER, REPORTED IN 118 ITR 461 [RELEVANT PAGES 477 & 478], WHEREIN THEIR LORDSHIPS HAVE HELD THAT:- THE APPEAL DOES NOT MEAN MERELY FILING OF THE APPE AL BUT EFFECTIVELY PURSUING IT. 2. IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V S. CWT; 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN THEIR ORDER:- IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 3. SIMILAR VIEW HAS BEEN TAKEN BY ITAT, DELHI BENCH IN THE CASE OF MULTIPLAN INDIA (P).) LTD. REPORTED IN 38 ITD 320 (DEL.). 3. RESPECTFULLY FOLLOWING THE ABOVE PRECEDENTS, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED IN LIMINE FOR WANT OF PROSECUTION. HOWEV ER, IT IS CLARIFIED THAT IF ASSESSEE LATER ON EXPLAINS THE REASONS FOR NON-APPEARANCE AND THE BENCH IS SO SATISFIED, THE ORDER PASSED EX-PARTE MAY BE RECALLED FOR FRESH ADJUDICATION OF THE APPEAL. 3. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED FOR WANT OF PROSECUTION. 4. ORDER PRONOUNCED IN OPEN COURT ON THE CONCLUSION OF THE HEARING ON 29.4.2011. SD/- SD/- (SHAMIM YAHYA) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, APRIL 29, 2011 SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XI, NEW DELHI 5.CIT(ITAT), NEW DELHI. AR/ITAT