M/s ATO Exims Pvt. Ltd., Kanpur V. Income Tax Officer-6(1), Kanpur

ITA 449/LKW/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1109 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-02-2018
• Assessment Year: 2004-2005
• Appeal Filed On: 03-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH TRIPATHI
• Keywords: Business expenditure; Additional evidence; Capital expenditure
• Section: 80HHC; 80IB; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 449/LKW/2016 ASSESSMENT YEAR: 2004 - 05 M/S ATO EXIMS PVT. LTD. 184/167, WAZIDPUR JAJMAU KANPUR V. INCOME TAX OFFICER 6(1) KANPUR PAN: AABCA2271K (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI RAJESH TRIPATHI, D.R. DATE OF HEARING: 12 02 2018 DATE OF PRONOUNCEMENT: 15 02 2018 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAIN ST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 01. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISALLOWING A SUM OF RS. 2,25,000 / - OUT OF FOREIGN TRAVELLING EXPENSES OF DIRECTORS WHICH DISALLOWANCE IS CONTRARY TO FACTS AND BA D IN LAW AND BE DELETED. 02. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISALLOWING A SUM OF RS.90,600/ - OUT OF INLAND TRAVELLING EXPENSES WHICH DISALLOWANCE IS CONTRARY TO FACTS AND BAD IN LAW AND BE DELETED. 03. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN WRONGLY COMPUTING THE DEDUCTION U/S. 80HHC AT RS.6,21,742 / - AS AGAINST RS.12,90,905/ - CLAIMED BY THE ASSESSE E. ITA NO.449/LKW/2016 : - 2 - : 04. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN WRONGLY COMPUTING THE DEDUCTION U/S. 80IB AT RS.23,17,855/ - , WHICH CO MPUTATION IS CONTRARY TO FACTS, BAD IN LAW AND BE DELETED. 05. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT THE EXPORT INCENTIVES, RECEIVED SHOULD OUGHT TO HAVE BEEN ALLOWED WHILE COMPUTING THE DEDUCTION U/S. 80IB. 06. BECAUSE THE CIT(A) HAS ERRED ON F ACTS AND IN LAW IN CAPPING THE DEDUCTIONS CLAIMED BY THE ASSESSEE U/S. 80HHC AND SEC. 80IB BY HOLDING, THAT HIGHER OF THE TWO WOULD BE ALLOWED AS A DEDUCTION AS AGAINST BOTH THE DEDUCTIONS CLAIMED TO THE EXTENT OF 100% IN AGGREGATE 07. BECAUSE ON A PROPER INTERPRETATION OF THE PROVISIONS OF LAW, IT WOULD BE FOUND THAT BOTH THE COMPUTATION OF DEDUCTION U/S. 80HHC AND DEDUCTION U/S. 80IB FRAMED BY THE CIT(A) IS ERRONEOUS AND MISCONCEIVED. 08. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THE PROVISIONS OF THE L AW AND HAS WRONGLY INTERPRETED THE PROVISIONS OF SEC. 80HHC, 80IB AND ITS SUB SECTIONS AND HAS WRONGLY RESTRICTED THE DEDUCTIONS CLAIMED THEREBY RESULTING IN EXCESS COMPUTATION OF INCOME. 09. BECAUSE ON A PROPER INTERPRETATION OF PROVISIONS OF SECTION 80IB (13) AND 80HHC, IT WOULD BE FOUND THAT THE LEGISLATURE HAS NO INTENTION OF EITHER CAPPING THE DEDUCTIONS, NOR THERE IS AN OVER - LAPPING OF THE SAME,. 10. BECAUSE THE CIT(A) HAS ERRED IN LEVYING A TAX OF RS. 6,79,254/ - INCLUSIVE OF INTEREST, AS PER THE NORMAL PROVISIONS OF THE I. T ACT 'ESPECIALLY WHEN' THE INCOME AS PER THE BOOK PROFIT (MAT 115JB) IS HIGHER THAN THE INCOME AS COMPUTED AS PER THE NORMAL PROVISIONS OF THE ACT. ITA NO.449/LKW/2016 : - 3 - : 11. BECAUSE THE CIT(A) HAS ARBITRARILY CHARGED INTEREST U/S. 234B, 234C AND 234D AMOUN TING TO RS.5,975/ - , RS. 1,66,321 / - AND RS.293/ - RESPECTIVELY. 2 . APROPOS GROUND NO.1, IT IS NOTICED THAT THE ASSESSEE HAS CLAIMED FOREIGN TRAVEL EXPENSES, FOR WHICH ASSESSING OFFICER CALLED FOR DETAILS IN ORDER TO ESTABLISH THAT FOREIGN TRAVEL EXPENSES W ERE INCURRED ON ACCOUNT OF BUSINESS EXIGENCIES, BUT THE ASSESSEE COULD ONLY FURNISH DETAILS OF EXPENDITURE INCURRED ON VISA AND TRAVEL. NO DETAILS WERE FURNISHED AS TO FOR WHAT BUSINESS EXIGENCY FOREIGN TRAVEL WAS UNDERTAKEN. THE ASSESSING OFFICER ACCORDINGL Y MADE DISALLOWANCE OF RS.2.25 LAKHS OUT OF THE TOTAL CLAIM OF RS.4,57,379/ - , AGAINST WHICH AN APPEAL WAS FILED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS RE - EXAMINED THE ENTIRE ISSUE IN THE LIGHT OF EVIDENCE AVAILABLE ON RECORD. SINCE ASSESSEE COULD NO T FURNISH DETAILED EVIDENCE WITH REGARD TO THE BUSINESS EXIGENCIES FOR WHICH FOREIGN TRAVEL WAS UNDERTAKEN, THE LD. CIT(A) CONFIRMED THE ADDITION. 3 . NOW THE ASSESSEE IS BEFORE THE TRIBUNAL AND DURING THE COURSE OF HEARING, MY ATTENTION W AS ALSO INVI TED TO TH E ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003 - 04 IN WHICH IDENTICAL DISALLOWANCE W AS MADE OUT OF FOREIGN TRAVEL EXPENSES. IN THAT YEAR, OUT OF TOTAL DISALLOWANCE OF RS.9,70,917/ - , THE ASSESSING OFFICER HAS MADE DISALLOWANCE O F RS.4,60,254/ - . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL RESTRICTED THE SAME TO RS.3,10,254/ - . IN THAT YEAR ALSO, ASSESSEE COULD NOT ESTABLISH THE BUSINESS EXIGENCY FOR THE FOREIGN TRAVEL UNDERTAKEN. SIMILAR IS THE REASON I N THIS YEAR, THEREFORE, I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RESTRICTED THE DISALLOWANCE TO RS.2.25 LAKHS OUT OF TOTAL CLAIM OF RS.4,57,379/ - . ACCORDINGLY, THE ISSUE IS DECIDED AGAINST THE ASSESSEE. ITA NO.449/LKW/2016 : - 4 - : 4 . APROPOS GROUND NO.2, IT IS NOTICED THAT THE DISALLOWANCE OF RS.90,600/ - WAS MADE OUT OF INLAND TRAVELLING EXPENSES. 5 . IN THIS REGARD ALSO, THE AUTHORITIES BELOW HAVE OBSERVED THAT THOUGH IT WAS CLAIMED TO BE REIMBURSEMENT OF EXPENDITURE INCURRED BY M/S RUCHI ENTERPRISES , WHO HAS RENDERED SOM E SERVICES FOR THE ASSESSEE BUT THE ASSESSEE COULD NOT ESTABLISH THAT ALL THESE EXPENDITURES WERE INCURRED ON TRAVEL. THE ASSESSING OFFICER HAS ALSO MADE OUT A CASE THAT THE EXPENDITURE WAS INCURRED IN VIOLATION OF THE PROVISIONS OF EXPLANATION TO SECTION 37 OF THE ACT . 6 . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), BUT COULD NOT FURNISH DETAILS OF EXPENSES IN SUPPORT OF ITS CONTENTIONS THAT THEY ALL WERE INCURRED ON TRAVEL OF ITS EMPLOYEES, ETC. THE LD. CIT(A), HOWEVER, RE - EXAMINED THE ISSUE IN THE LIGHT OF DETAILED SUBMISSIONS BUT HE WAS NOT CONVINCED WITH IT AND HE CONFIRMED THE ADDITION. THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) IS EXTRACTED HEREUNDER FOR THE SAKE OF READY REFERENCE: - I HAVE GONE THROUGH THE FACTS AND THE WRITTEN SUBMISSI ONS FILED ALONG WITH THE DETAILS FILED ENCLOSE THEREIN. THESE EXPENSES WERE ALLEGEDLY INCURRED BY M/S RUCHI ENTERPRISES IN CONNECTION WITH THE BUSINESS OF THE APPELLANT, WHICH WERE 'REIMBURSED TO THEM AS STATED BY THE ASSESSEE INITIALLY BEFORE THE AO AND A LSO DURING THE APPELLATE PROCEEDINGS. SHRI RAVI TANDON, PROPRIETOR OF M/S RUCHI ENTERPRISES WAS EXPLAINED BY THE AO WHO RECORDED HIS STATEMENT IN THE PRESENCE OF THE A.R. OF THE ASSESSEE COMPANY, WHO WAS PRESENT THROUGHOUT THE RECORDING OF THE SAID STATEME NT ON 14.06.2006. ASSESSEE WAS CONFRONTED WITH STATEMENT GIVEN BY SHRI RAVI TANDON PRODUCED BY ASSESSEE ONLY. ASSESSEE WAS GIVEN THE CHOICE FOR CROSS - EXAMINE SHRI RAVI TANDON. THE OFFER WAS DECLINED BY THE ASSESSEE. IN HIS STATEMENT SHRI RAVI TANDON INFORM ED THAT HE IS ENGAGED IN PROVIDING CONSULTANCY IN RESPECT OF EXPORT BENEFITS AND CUSTOM AUTHORITIES TO THE ASSESSEE COMPANY AND ITS SISTER CONCERN, M/S RAHMAN EXPORTS PVT, ITA NO.449/LKW/2016 : - 5 - : LTD. WHO ARE HIS ONLY CLIENTS BUT COULD NOT RECALL THE REMUNERATION RECEIVED FROM TH EM. HE FURTHER STATED THAT THE PERIOD OF EXPENSES WAS SEPT '03 TO MARCH, 2004 AND THAT BY MISTAKE HE HAD MENTIONED THE PERIOD AS MARCH, 2003. AO ASKED SHRI RAVI TANDON TO PRODUCE ANY DOCUMENTARY EVIDENCE TO VOUCH HIS CLAIM FOR WHICH FURTHER TIME TILL 19.06 .2006 WAS SOUGHT TO PRODUCE THE REQUISITE DETAILS, HOWEVER, HE COULD NOT FURNISH THE SAID DETAILS. AS REGARDS THE NATURE OF SERVICES RENDERED, SHRI RAVI TANDON HAS STATED CONTRADICTORY AND INCONSISTENT FACTS IN HIS STATEMENT BEFORE THE ASSESSING OFFICER. T HE ASSESSEE CLAIMS THAT EXPENSES INCURRED BY M/S RUCHI ENTERPRISES HAVE BEEN REIMBURSED TO THEM. ON THE OTHER HAND, THE RECIPIENT STATES THAT THESE ARE CONSULTANCY CHARGES ON EXPORT BENEFITS. IN REPLY TO VARIOUS QUESTIONS, PUT TO HIM DURING THE COURSE OF H IS STATEMENT, HE HAS VACILLATED FROM BEING A CONSULTANT ON EXPORT BENEFITS TO A SERVICE PROVIDER AND A LIAISON AGENT BETWEEN THE COMPANY AND THE CUSTOMS & CENTRAL EXCISE DEPARTMENT, TO HAVING PERFORMED A JOB IN DELHI AND BOMBAY AND, IN A FURTHER TWIST, HAV ING INCURRED EXPENDITURE IN 'KANPUR, DELHI AND BOMBAY IN VARIOUS GOVT. DEPARTMENTS. HE IS ALSO NOT BEEN ABLE TO PROVIDE THE SUPPORTING DOCUMENTARY EVIDENCE IN RESPECT OF EXPENSES INCURRED BY IT. MOREOVER NOWHERE IT IS STALED THAT EXPENSES WERE INCURRED ON TR AVELL ING, LODGING, MEALS ETC., AS MENTIONED IN ITS BILLS DATED 31.03.2004, DURING THE COURSE OF HIS STATEMENT DATED 14.06.2006. AO POINTED OUT THAT THE EXPENSES REIMBURSED BY APPELLANT SPENT ON VARIOUS GOVERNMENT DEPARTMENTS MAY BE OF THE NATURE COVERED BY THE EXPLANATION TO SECTION 37 OF THE INCOME TAX ACT, 1961 AND INCURRED IN THE INFRACTION OF ANY LAW H FORCE. THOUGH, AO DID NOT MAKE THIS AS HIS GROUND FOR DISALLOWING THESE EXPENSES. AO DISALLOWED THESE EXPENSES AS THE ASSESSEE WAS NOT BEEN ABLE TO OFF ER PROPER JUSTIFICATION, NEED AND BUSINESS EXPEDIENCY IN RESPECT OF THE EXPENSES DEBITED IN THE NAME OF M/S RUCHI ENTERPRISES UNDER THE HEAD - , TRAVELLING EXPENSES. AR OF THE APPELLANT HAS ITA NO.449/LKW/2016 : - 6 - : NOT BEEN ABLE TO REBUT ANY FINDINGS GIVEN BY AO IN ASSESSMENT ORDER NOR HE HAS PRODUCED ANY ADDITIONAL EVIDENCE BEFORE THE UNDERSIGN FOR CONSIDERATION. AR HAS ONLY SUBMITTED THAT SHRI RAVI TANDON HAS CONFIRMED THE RECEIPT OF AMOUNT IN HIS SUPPORT. THE BILLS RAISED BY M/S RUCHI ENTERPRISES REVEALED THAT ALL THE BILLS WERE R AISED IN THE MONTH OF MARCH, 2004 THOUGH THE SERVICES WERE CLAIMED TO HAVE BEEN RENDERED THROUGHOUT THE YEAR. FURTHER, THE SAID BILLS PERTAINED TO THE SERVICES MADE TO VARIOUS EXCISE GOVERNMENT AUTHORITIES BUT DETAILS REGARDING NAME, ADDRESS, PLACE AND TYP E OF SERVICE HAVE NOT BEEN MENTIONED IN THE BILL OR ANY SUCH DETAILS WERE PROVIDED BEFORE THE AO. THE SAID PARTY HAS FAILED TO PRODUCE EVIDENCE OF HAVING DONE ANY WORK FOR THE ASSESSEE, APART FROM THE COPIES OF BILLS RAISED. SECTION 37 OF THE INCOME TAX AC T, 1961 IS A RESIDUARY SECTION FOR ALLOWABILITY OF BUSINESS EXPENDITURE AND THE SAME IS GIVEN BELOW: - '37. (1)ANY EXPENDITURE (NOT BEING EXPENDITURE OF THE NATURE DESCRIBED IN SECTIONS 30 TO 36 AND NOT BEING IN THE NATURE OF CAPITAL EXPENDITURE OR PERSONAL EXPENSES OF THE ASSESSEE, LAID OUT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS OR PROFESSION SHALL BE ALLOWED IN COMPUTING THE INCOME CHARGEABLE UNDER THE H.EAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. '.EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT ANY EXPENDITURE INCURRED BY AN ASSESSEE FOR ANY PURPOSE WHICH IS AN OFFENCE OR WHICH IS PROHIBITED BY LAW SHALL NOT BE DEEMED TO HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS OR PROFESSION AND NO DEDUCTION OR ALLOWANCE SHALL BE MADE IN RESPECT OF SUCH EXPENDITURE,]' UNDOUBTEDLY, THE INCURRING OF EXPENDITURE BY THE BUSINESS MAN CANNOT BE QUESTIONED, BUT THE ALLOWABILITY OF THE SAID EXPENDITURE IS COVERED UNDER THE PROVISIONS OF THE INCOME TAX ACT, WHICH LAY DOW N THAT ALL SUCH EXPENDITURE, WHICH IS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF CARRYING ON OF THE BUSINESS, IS TO BE ALLOWED AS AN EXPENDITURE. THE ONUS IS UPON THE ASSESSEE TO ESTABLISH THAT IT HAD INCURRED A PARTICULAR ITA NO.449/LKW/2016 : - 7 - : EXPENDITURE FOR THE PURPO SE OF CARRYING ON OF ITS BUSINESS, THE SECOND LIMB OF SECTION 37, OF THE I.T. ACT, OF INCURRING THE EXPENDITURE FOR THE PURPOSE OF BUSINESS, HAS NOT BEEN SATISFACTORILY ESTABLISHED BY THE ASSESSEE. IN VIEW OF THE EVIDENCE COLLECTED BY THE ASSESSING OFFICER AND THE STATEMENT RECORDED OF SHRI RAVI TANDON, I FIND NO MERIT IN THE CLAIM OF THE ASSESSEE IN RESPECT OF THE LIAISON EXPENSES PAID UNDER THE GARB OF TRAVELLING EXPENSES, BY IT. IN THE ANOTHER LANDMARK JUDGMENT DECIDED BY KARNATAKA HIGH COURT THAT ANY PA YMENT TO POLICE OR ROWDIES FOR GETTING PROTECTION FROM THEM IS ILLEGAL AND SHOULD NOT BE ALLOWED - CIT VS. NEELAVATHI & OTHERS (2010) 322 ITR 643 (KAR). ACCORDINGLY, I CONFIRM THE ORDER OF ASSESSING OFFICER IN MAKING THIS ADDITION OF RS.90,600/ - . THIS GROU ND OF APPEAL IS THUS DISMISSED. 7 . THOUGH THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL, BUT DURING THE COURSE OF HEARING, HE COULD NOT POINT OUT ANY DEFECT IN THE ORDER OF THE LD. CIT(A). HE HAS SIMPLY SUBMITTED THAT ALL THE EXPENDITURES WERE IN CURRED FOR THE BUSINESS EXIGENCIES. SINCE I DO NOT FIND ANY EVIDENCE TO CONTRADICT WITH THE FINDINGS OF THE LD. CIT(A), I CONFIRM THE SAME. ACCORDINGLY, THE ADDITION IS CONFIRMED. 8 . THE NEXT GROUND RELATES TO DEDUCTION OF CLAIM UNDER SECTION 80HHC AND 80 - I B OF THE ACT. 9 . IN THIS REGARD, MY ATTENTION AS INVITED THAT THIS ISSUE IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003 - 04 IN WHICH THE TRIBUNAL HAS EXAMINED THE ISSUE IN THE LIGHT OF PROVISIONS OF SECTION 80HHC AND 80 - IB OF THE ACT. RELYING UPON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES PVT. LTD. VS. DY CIT, 332 ITR 42 (BOMBAY), THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION UNDER SECTION ITA NO.449/LKW/2016 : - 8 - : 80HHC OF THE ACT AND WHILE COMPUTING THE DEDUCTION , HE SHOULD NOT EXCLUDE THE INCOME ON WHICH DEDUCTION UNDER SECTION 80 - IB OF THE ACT HAS BEEN ALLOWED WHILE COMPUTING THE PROFIT OF THE BUSINESS. THE RELEVANT OBSERVATION OF THE TRIBUNAL IS EXTRACTED HEREU NDER FOR THE SAKE OF READY REFERENCE: - 8. I HAVE HEARD THE RIVAL SUBMISSIONS, CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. I NOTED THAT IN RESPECT OF THE COMPUTATION OF DEDUCTION U/S 80HHC, THERE ARE TWO ISSUES INVOLVE D. ONE RELATES TO WHETHER OUT OF THE PROFIT OF BUSINESS AS HAS TO BE TAKEN U/S 80HHC(3), THE INCOME ON WHICH THE DEDUCTION U/S 80IB HAS TO BE EXCLUDED OR NOT. THIS ISSUE IS DULY COVERED BY THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATE D CAPSULES P. LTD. VS. DOT [2011] 332 ITR 42 (BOM) IN WHICH HON'BLE BOMBAY HIGH COURT HAS CATEGORICALLY' HELD THAT THE TRIBUNAL WAS NOT RIGHT IN HOLDING THAT SECTION 80IA(9) OF THE ACT, MANDATES THAT THE AMOUNT OF THE PROFITS ALLOWED AS DEDUCTION U/S 80IA( 1) OF THE ACT HAVE TO BE REDUCED FROM THE PROFITS OF THE BUSINESS OF THE UNDERTAKING WHILE COMPUTING THE DEDUCTION UNDER ANY OTHER PROVISIONS UNDER HEADING C IN CHAPTER VI - A OF THE ACT. SECOND PART OF SECTION 80IA(9) DOES NOT REFER TO THE METHOD OF COMPUTA TION OF DEDUCTION UNDER OTHER PROVISIONS UNDER HEADING C IN CHAPTER VI - A. NO CONTRARY DECISION WAS BROUGHT TO MY KNOWLEDGE BY LEARNED D. R. THOUGH, HE RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. I, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HON'B LE BOMBAY HIGH COURT, DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION U/S 80HHC AND WHILE RECOMPUTING THE DEDUCTION, HE SHOULD NOT EXCLUDE INCOME ON WHICH DEDUCTION U/S 80IB HAS BEEN ALLOWED WHILE COMPUTING THE PROFIT OF THE BUSINESS. 8.1 THE SECON D ISSUE U/S 80HHC RELATES TO THE EXCLUSION OF 90% OF THE EXPORT INCENTIVE. THIS ISSUE ALSO, IN MY OPINION, IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT'[2012] 342 ITR 49 (SC). THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO RECOMPUTE THE DEDUCTION AVAILABLE TO THE ASSESS.EE U/S 80HHC AFTER CONSIDERING THE DECISION OF HON'BLE ITA NO.449/LKW/2016 : - 9 - : SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). THUS, GROUND NO. 4 TO 7 ARE ALLOWED FOR STATISTICAL PURPOSES. 10 . WE, THEREFORE, FOLLOWING THE VIEW TAKEN BY THE TRIBUNAL IN EARLIER YEAR, SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO COMPUTE DEDUCTION UNDER SECTION 80HHC OF THE ACT AND WHILE COMPUTING THE DEDUCTION, HE SHOULD NOT EXCLUDE THE IN COME ON WHICH DEDUCTION UNDER SECTION 80 - IB OF THE ACT HAS BEEN ALLOWED WHILE COMPUTING THE PROFIT OF THE BUSINESS . THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 11 . APROPOS GROUNDS NO.10, IT IS NOTICED THAT THIS GROUND HAS NOT BEEN ADJUDICATED BY ANY OF THE LOWER AUTHORITIES. SINCE IT IS BEING RAISED FIRST TIME AND DOES NOT ARISE OUT OF THE ORDER OF THE LD. CIT(A), I REFRAIN MYSELF TO ADJUDICATE THE SAME. ACCORDINGLY, THIS GROUND IS REJECTED BEING NOT ADMITTED. 12 . IN THE RESULT, APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION ED PAGE. SD/ - [ S UNIL KUMAR Y ADAV ] JUDICIAL MEMBER DATED: 15 TH FEBRUARY , 201 8 JJ: 1202 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CI T(A) 4 . CIT 5 . DR