M/s. Olam Exports(India) Ltd, Kollam V. ACIT, Kollam

ITA 513/COCH/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61530 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-04-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 26-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Assessee Lawyers: H P AGARWAL
• Keywords: Reasonable cause
• Section: 80HHC; 80IB; 154

Judgement Text

1 ITA NO.513TO 516/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 513/COCH/2009 - A.Y. 2000-01 I.T.A NO. 514/COCH/2009 - A.Y. 2000-01 I.T.A NO. 515/COCH/2009 - A.Y. 2001-02 I.T.A NO. 516/COCH/2009 - A.Y. 2002-03 OLAM EXPORTS (INDIA) LTD VS A.C.I.T, CIR.1 BISHOP JEROME NAGAR KOLLAM KOLLAM PAN : AAACO2040D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.P. AGARWAL RESPONDENT BY : SHRI S.R. SENAPATI DATE OF HEARING : 25-04-2012 DATE OF PRONOUNCEMENT : 25-05-2012 O R D E R PER N.R.S. GANESAN (JM) ALL THE FOUR APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST THE INDEPENDENT ORDERS OF COMMISSIONER OF INCOME-TAX(A)-II, KOCHI FOR THE ASSESSMENT YEARS 2000- 01, 2001-02 AND 2002-03. 2. THERE IS A DELAY IN FILING THE APPEALS BY 157 DA YS IN RESPECT OF APPEAL IN ITA NO.513/COCH/2009 AND 134 DAYS IN RESPECT OF ALL OTH ER THREE APPEALS. SHRI H.P. AGARWAL, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUB MITTED THAT THE ASSESSEE SHIFTED THE REGISTERED OFFICE TO DELHI IN THE YEAR 2006. THE ASSESSEE WAS 2 ITA NO.513TO 516/COCH/2010 MAINTAINING A SKELETAL OFFICE IN KOLLAM. THE IMPUGNE D ORDERS OF THE COMMISSIONER OF INCOME-TAX(A) WERE SERVED AT THE KOLL AM OFFICE. HOWEVER, THE OFFICIAL WHO RECEIVED THE IMPUGNED ORDERS OF COMMIS SIONER OF INCOME-TAX(A) AT KOLLAM OFFICE MISPLACED THE SAME WHEN PAINTING WORK W AS DONE. HOWEVER, AFTER EXTENSIVE SEARCH THE IMPUGNED ORDERS OF THE COMMISS IONER OF INCOME-TAX(A) WERE TRACED OUT AND SENT TO DELHI FOR PREPARING THE APPEALS. THEREAFTER, THE APPEALS WERE PREPARED AND THE SAME WERE FILED BEFOR E THIS TRIBUNAL. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE AFFIDA VIT OF SHRI GOPALAKRISHNAN, WHO WAS WORKING IN KOLLAM OFFICE WAS FILED IN SUPPORT OF THE APPLICATION FOR CONDONATION OF DELAY. 3. WE HEARD SHRI S.R. SENAPATI, THE LD.DR ALSO. AC CORDING TO THE LD.DR THERE WAS NO REASONABLE CAUSE FOR DELAY IN FILING THE APP EALS WITHIN THE PERMITTED TIME. 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND ALSO PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THERE WAS A DELAY OF 157 DAYS IN FILING THE APPEAL IN RESPECT OF ITA NO.513/COCH/2009 AND 134 DAYS IN RESPECT OF OTHER THREE APPEALS. THE FACT THAT THE ASSESSEE SHIFTED THE RE GISTERED OFFICE TO DELHI IN THE YEAR 2006 IS NOT IN DISPUTE. IT IS ALSO NOT IN DIS PUTE THAT THE IMPUGNED ORDERS OF COMMISSIONER OF INCOME-TAX(A) WERE SERVED AT THE KOLL AM OFFICE AND THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE EMPLOYEE TO SHOW THAT THE IMPUGNED ORDERS WERE MISPLACED WHILE PAINTING WORK WAS CARRIED OUT. THIS FACT WAS ALSO NOT DISPUTED BY THE REVENUE. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THERE WAS A REASONABLE CAUSE IN NOT FILING THE APPEALS WITHIN THE PRESCRIBED TIME. THEREFORE, THE DELAY IN FILING THE APPEALS IS CONDO NED AND THE APPEALS OF THE ASSESSEE ARE ADMITTED. 3 ITA NO.513TO 516/COCH/2010 5. NOW COMING TO THE MERIT OF THE CASE IN ITA NOS.5 13, 515 & 516/COCH/2009 WITH REGARD TO DEDUCTION U/S 80HHC ON THE SALE PROC EEDS OF DEPB, SHRI H.P. AGARWAL, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUB MITTED THAT THE ISSUE WITH REGARD TO THE DEDUCTION U/S 80HHC IN RESPECT OF SAL E PROCEEDS OF DEPB WAS SETTLED BY SUPREME IN TOPMAN EXPORTS VS COMMISSIONE R OF INCOME-TAX IN CIVIL APPEAL NO1699 OF 2012 JUDGMENT DATED 08-02-2012. THI S TRIBUNAL WHILE CONSIDERING THE JUDGMENT OF THE APEX COURT IN RAJAS REE PRATAP NAIR VS DCIT IN ITA NO.487/COCH/2007 DATED 29-02-2012 EXAMINED IDENTICAL ISSUE IN THE LIGHT OF JUDGMENT OF THE APEX COURT IN THE CASE OF TOPMAN EX PORTS (SUPRA). AFTER CONSIDERING THE JUDGMENT OF THE APEX COURT IN TOPMA N EXPORTS (SUPRA), THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSING FOR RECONSIDERATION IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN TOPMAN EXPORTS (SUPRA). A SIMILAR VIEW WAS TAKEN BY THIS TRIBUNAL IN DCIT VS M/S LAKSHMAN & CO IN ITA NO.178/COCH/2010 ORDER DATED 28-02-2012. ACCO RDING TO THE LD.REPRESENTATIVE, HE MAY NOT HAVE ANY OBJECTION IN REMITTING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO RECONSIDER THE ISSUE IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SU PRA). 6. WE HEARD SHRI S.R. SENAPATI, THE LD.DR ALSO. TH E LD.DR VERY FAIRLY SUBMITTED THAT THE DEPARTMENT MAY NOT HAVE ANY OBJE CTION IN RE-EXAMINING THE ISSUE AFRESH IN THE LIGHT OF THE JUDGMENT OF THE AP EX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). 7. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND ALSO PERUSED THE MATERIAL PLACED ON RECORD. AS RIGHTLY SUBMITTED BY THE LD.REPRESENTATIVE FOR THE ASSESSEE, THIS TRIBUNAL, AFTER CONSIDERING THE JUDG MENT OF THE APEX COURT IN TOPMAN EXPORTS (SUPRA) HAS REMANDED BACK THE ISSUE T O THE FILE OF THE ASSESSING 4 ITA NO.513TO 516/COCH/2010 OFFICER FOR RECONSIDERATION IN THE CASES SMT. RAJ ASREE PRATAP NAIR & M/S LAKSHMAN & CO BOTH CITED SUPRA. BOTH THE REPRESENTA TIVES OF THE ASSESSEE AS WELL AS THE REVENUE HAVE NO OBJECTION IN REMITTING BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERING THE ISSUE I N THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA ). IN THE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE OPINION THAT THE ASSESSING OFFIC ER NEEDS TO RECONSIDER THE ISSUE IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN T HE CASE OF TOPMAN EXPORTS (SUPRA). ACCORDINGLY THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF DEDUCTION U/S 80HHC WITH REGARD TO DEPB IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN LINE WITH THE JUDGMENT OF THE A PEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND IN ACCORDANCE WITH LAW A FTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. THE ASSESSEE HAS TAKEN ONE MORE GROUND IN APPEAL NO.513/COCH/2009 FOR ASSESSMENT YEAR 2000-01 PERTAINING TO DEDUCTION U/S 80IB ON THE SALE PROCEEDS OF DEPB. SINCE THIS ISSUE IS CONNECTED WITH DEDUCT ION U/S 80HHC, THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER HAS TO BE RECONSIDER ED BY THE ASSESSING OFFICER AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE . ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES WITH REGARD TO DEDUCTION U/S 80IB IS ALSO SET ASIDE AND REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONS IDERATION. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN THE LIGHT OF JUDGM ENT OF THE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND IN ACCORDANCE WITH LA W AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 9. NOW COMING TO APPEAL IN ITA NO.514/COCH/2009 IN RESPECT OF ASSESSMENT YEAR 2000-01, THE ASSESSING OFFICER HAS RECTIFIED TH E ASSESSMENT ORDER IN RESPECT 5 ITA NO.513TO 516/COCH/2010 OF MISCELLANEOUS INCOME SUCH A MISCELLANEOUS RECEIP TS, WRITTEN BACK PROVISIONS AND LIABILITIES WRITTEN BACK. ON APPEAL BY THE ASSE SSEE, THE COMMISSIONER OF INCOME-TAX(A) ALLOWED THE APPEAL PARTLY. THE CONTEN TION OF THE LD.REPRESENTATIVE FOR THE ASSESSEE IS THAT THE ISSUE IS DEBATABLE ONE AND THEREFORE INVOKING THE PROVISIONS OF SECTION 154 IS BEYOND THE JURISDICTIO N OF THE ASSESSING OFFICER. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESS EE IS ENTITLED FOR DEDUCTION U/S 80HHC IN RESPECT OF ENTIRE MISCELLANEOUS INCOME WHICH WAS DISALLOWED BY THE ASSESSING OFFICER IN PROCEEDINGS U/S 154 OF THE ACT. WE HEARD THE LD.DR, SHRI S.R. SENAPATI ALSO. 10. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SI DE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MAIN ISSUE WITH REGARD TO DEDUCTION U/S 80HHC IN RESPECT OF DEPB HAS BEEN REMANDED BACK TO THE FIL E OF THE ASSESSEE WHILE DECIDING THE EARLIER APPEALS ELSEWHERE IN THIS ORDE R WITH A DIRECTION TO CONSIDER THE SAME IN THE LIGHT OF THE JUDGMENT OF THE APEX C OURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). THE MISCELLANEOUS INCOME ALSO REL ATES TO DEDUCTION U/S 80HHC. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT IN RESPECT OF MISCELLANEOUS INCOME THE JUDGMENT OF THE APEX COURT IN K RAVINDRAN NAIR V S COMMISSIONER OF INCOME- TAX 295 ITR 228 (SC) HAS TO BE APPLIED. SINCE THE DEDUCTION U/S 80HHC IN RESPECT OF DEPB WAS ALSO REMANDED BACK TO THE FILE OF THE AS SESSING OFFICER, THIS TRIBUNAL IS OF THE OPINION THAT THE DEDUCTION U/S 80HHC IN R ESPECT OF MISCELLANEOUS RECEIPTS ALSO NEEDS TO BE RECONSIDERED IN THE LIGHT OF JUDGMENT OF APEX COURT IN THE CASE OF K RAVINDRAN NAIR (SUPRA). ACCORDINGLY T HE ORDER OF THE LOWER AUTHORITY IN PROCEEDINGS U/S 154 IS SET ASIDE AND THE ENTIRE ISSUE WITH REGARD TO DEDUCTION U/S 80HHC WHICH WAS DISALLOWED IN PROCEEDINGS U/S 154 IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RECONSIDER THE SAME IN THE 6 ITA NO.513TO 516/COCH/2010 LIGHT OF JUDGMENT OF THE APEX COURT IN THE CASE OF K RAVINDRAN NAIR (SUPRA) AND IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF MAY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 25 TH MAY, 2012 PK/- COPY TO: 1. M/S OLAM EXPORTS (INDIA) LTD, BISHOP JEROME NAGAR, KOLLAM 2. A.C.I.T., CIR.1, KOLLAM 3. THE COMMISSIONER OF INCOME-TAX(A)-II, KOCHI 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH