M/s. JKM Overseas Pvt. Ltd., Kolkata V. ITO, Ward - 12(1), Kolkata, Kolkata

ITA 537/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1624 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 05-04-2011
• Court: TRIBUNAL
• Department Lawyers: ASOKE KUMAR DEY
• Assessee Lawyers: K K GOSWAMI
• Section: 80HHC; 234B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , ! ''# $ ''# $ ''# $ ''# $ ] ]] ] [BEFORE HONBLE SRI P.K.BANSAL, AM & HONBLE SRI GEORGE MATHAN, JM] !& !& !& !& /ITA NOS.537/KOL/2011 '( )*/ ASSESSMENT YEARS : 2004-05 ($, / APPELLANT ) - - ( ./$, /RESPONDENT) M/S.JKM OVERSEAS PVT.LTD. I.T.O., WARD-12(1), KOLKATA -VERSUS- KOLKATA (PAN:AAACJ 6327 L) $, 0 1 / FOR THE APPELLANT: SHRI K.K.GOSWAMI ./$, 0 1 / FOR THE RESPONDENT: SHRI ASOKE KUMAR DEY, SR.DR 2 3 0 4 /DATE OF HEARING : 07.02.2013 5) 0 4 /DATE OF PRONOUNCEMENT : 07.02.2013. 6 / ORDER PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)- XXXVI, KOLKATA DATED 05.01.2011. 2. GROUND NO.1 IS RELATING TO THE SUSTENANCE OF AD DITION OF RS.8,18,921/- ON ACCOUNT OF EXCESS DEDUCTION CLAIMED U/S 80HHC CONS IDERING THE NEGATIVE BALANCE OF PROFIT FROM EXPORT BUSINESS. 3. THE BRIEF FACTS RELATING TO GROUND NO.1 ARE THA T THE ASSESSED CLAIMED DEDUCTION U/S 80HHC AMOUNTING TO RS.9,22,312/-. THE AO WORKED OUT THE DEDUCTION U/S 80HHC AT RS.1,03,391/- IN THE FOLLOWING MANNER :- 30% OF [-2999581 X 94364735 + 90% 3753651 X 94364735 103693031 103693031 =30% OF [-2729736 + 3074372] = 30% OF 344636 = 1,03 ,391 3.1. THE AO THUS REFUSED THE CLAIM OF THE ASSESSEE BY RS.818921/-. THEN THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A). WHE N THE MATTER WENT BEFORE THE CIT(A) THE LD. CIT(A) CONFIRMED THE DISALLOWANCE BY OBSERVING AS UNDER :- ITA NOS .537/KOL/2011 2 5. THE SUBMISSION OF THE AR OF THE APPELLANT HAS BEEN CONSIDERED CAREFULLY AND I FIND MYSELF UNABLE TO ACCEPT THE SAME. DURING THE PREVIO US YEAR, THE APPELLANT COMPANY WAS ENGAGED IN EXPORTING MANUFACTURED/PROCESSED GOODS A ND THEREFORE, ENTITLED FOR DEDUCTION U/S 80HHC OF THE ACT. AS PER THE FIRST PR OVISO TO SECTION 80HHC OF THE ACT, THE EXPORT PROFITS SO COMPUTED SHALL BE FURTHER INC REASED BY 90% OF THE EXPORT INCENTIVES IN THE RATION OF EXPORT TURNOVER TO TOTA L TURNOVER. THERE IS NO DISPUTE ON THIS. HOWEVER, THE CLAIM OF THE AR THAT IN THE EVENT OF B USINESS LOSS, THE INCENTIVE ALONE SHOULD BE CONSIDERED FOR THE PURPOSE OF COMPUTATION OF DEDUCTION U/S 80HHC IS NOT SUPPORTED BY LAW. SINCE PROFIT INCLUDES LOSS IN INCOME TAX PARLANCE, BUSINESS LOSS OF RS.29,99,581/- INCURRED BY THE APPELLANT COMPANY WA S CORRECTLY TAKEN INTO CONSIDERATION BY THE AO FOR COMPUTATION OF DEDUCTIO N U/S 80HHC OF THE ACT. HENCE, I DO NO FIND ANY CONFORMITY IN THE COMPUTATION OF THE AO, RESTRICTING THE DEDUCTION AT RS.1,03,391/-. THE RESULTANT ADDITION OF RS.8,18,92 /- IS THEREFORE, SUSTAINED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE SAME. THE LD. AR EVEN THOUGH VEHEMENTLY ARGUED THE CASE WHO COULD NOT CON VINCE US THE ADDITION MADE U/S 80HHC BY THE LD. CIT(A). THUS THE FACT THAT IN CASE OF THE LOSS FROM THE BUSINESS THE DEDUCTION U/S 80HHC CANNOT BE CALCULATED ON THE BAS IS OF 90% OF THE EXPORT INCENTIVE. WE ACCORDINGLY CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS GROUND AND GROUND NO.1 TAKEN BY THE ASSESSEE STAND DISMISSED. 5. GROUND NO.2 IS CONSEQUENTIAL RELATING TO THE CHA RGING OF INTEREST U/S 234B AND 234C OF THE ACT. ACCORDINGLY WE DIRECT THE AO TO CO MPUTE THE INTEREST U/S 234B AND 234C AFTER GIVING EFFECT TO OUR ORDER. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 07.02.2013. SD/- SD/- [ .''# $ , ] [ .., ,, , ] [ GEORGE MATHAN ] [P.K.BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE: 07.02.2013. R.G.(.P.S.) ITA NOS .537/KOL/2011 3 6 0 .''7 87)9- COPY OF THE ORDER FORWARDED TO: 1. M/S.JKM OVERSEAS PVT. LTD., C/O AGARWAL VISHWANATH & ASSOCIATES, 7-B, DACRES LANE,.1 ST FLOOR, KOLKATA-700069.. 2 I.T.O., WARD-12(1), KOLKATA 3 . CIT KOLKATA 4 . CIT(A)-CENTRAL-XXXVI, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. /7 .'/ TRUE COPY, 62/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES