M/s. Woventex (I) Pvt. Ltd., Ichalkaranji V. ITO, Ward-2, Ichalkaranji

ITA 552/PUN/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9489 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-05-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Business income; Condonation of delay
• Section: 143(3); 80HHC; 234B; 28

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.552/PUN/2013 / ASSESSMENT YEAR : 2004-05 M/S. WOVENTEX (I) PVT. LTD., PLOT NO.125, THE ICHALKARANJI INDUSTRIAL CO. OP. ESTATE LIMITED, BABASO KHANJIRE NAGAR, SHAHPUR, ICHALKARANJI 416121. PAN : AAACW2491 E. . / APPELLANT V/S INCOME TAX OFFICER, WARD 2, ITCHALKARANJI. . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI ANIL CHAWARE. / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF T HE ORDER OF COMMISSIONER OF INCOME TAX (A), KOLHAPUR DT.18.08.2 011 FOR THE ASSESSMENT YEAR 2004-05. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- / DATE OF HEARING : 17.05.2017 / DATE OF PRONOUNCEMENT: 24.05.2017 2 2.1 ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUSINESS OF TRADING OF CLOTH, MANUFACTURING AND EXPORT OF PROCESSED GOODS MAINLY IN CLOTHES. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y . 2004-05 ON 24.12.2004 DECLARING TOTAL INCOME AT RS.31,60,22 0/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE A SSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.24.03.2006 A ND THE TOTAL INCOME WAS DETERMINED AT RS.45,89,700/- INTER-ALIA BY DISALLOWING THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO VIDE ORDER DT.18.08.2011 IN APPEAL NO.ICH/239/ 06- 07 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY T HE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS R AISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) WAS NOT JUSTIFIED IN DISALLOWING THE CLA IM OF DEDUCTION CLAIMED U/S 80HHC OF THE ACT OF RS.13,01,715/- IT BE ALLOWED TO THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N FEW THE CIT(A) OUGHT TO HAVE CONSIDERED THE LEGAL POSITION THAT TH E CONTENT OF IMPORT COST IN THE EXPORTS IS NIL OR MEAGER AND THE FACE V ALUE OF THE DEPB LICENCES TRANSFERRED WAS ITSELF A PREMIUM RECEIVED ON DEPB LICENCES AND BEING PROFIT WAS TAXABLE U/S 28(III-D) OF THE ACT FOL L OWING HON'BLE SUPREME COURT JUDGMENT IN TOPMAN'S CA SE (SUPRA) . THE BENEFIT U/S 8OHHC BE GIVEN TO THE APPELLANT . 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE APPEAL DELAYED BECAUSE OF WRONG ADVICE GIVEN TO THE APPELL ANT ASSESSEE. THE HON'BLE SUPREME COURT JUDGMENT IN TOPMAN EXPOR TS V. CIT (2012) 342 ITR 49 (SC) WAS ALSO PRONOUNCED ON FEB.8 , 2012. IN VIEW OF THESE CIRCUMSTANCES THE DELAY BE CONDONED A ND APPEAL BE ADMITTED FOR ADJUDICATION TO GIVE FULL JUSTICE TO T HE ASSESSEE. THE DETAILED AFFIDAVIT WITH A PRAYER TO CONDONE THE DEL AY WILL BE FILED LATER ON . 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEVY OF INTEREST U/S 234A, 234B AND 234C IS NOT JUSTIFIED A ND IN THE CIRCUMSTANCES IT BE DELETED. 3 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THOUG H THE ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE SOLE ISSUE IS WITH RESPECT TO THE DENIAL OF DEDUCTION U/S 80HHC OF THE ACT. 4. THE CASE FILE REVEALS THAT THERE IS A DELAY OF 484 ON T HE PART OF ASSESSEE IN FILING THE PRESENT APPEAL. BEFORE US, ASSES SEE HAS PRAYED FOR CONDONATION OF DELAY AND HAS ALSO FILED AFFIDAVIT OF SHRI RAVIKUMAR RADHESHYAM ADUKIA, THE DIRECTOR OF THE ASS ESSEE COMPANY. IN THE AFFIDAVIT IT IS INTER-ALIA SUBMITTED THAT THE DELAY IN FILING THE APPEAL WAS ON ACCOUNT OF NEGLIGENCE OF THE IT PRACTITIONER. LD.D.R. OBJECTED TO THE PRAYER OF ASSESSEE FOR CONDONATION OF DELAY. WE HAVE HEARD THE RIVAL SUBMISSION S. CONSIDERING THE AVERMENTS MADE IN THE AFFIDAVIT BY THE DIRE CTOR OF ASSESSEE FIRM WE ARE OF THE VIEW THAT DELAY HAS BEEN EX PLAINED. WE THEREFORE CONDONE THE DELAY IN FILING THE APPEAL AND ADMIT T HE APPEAL. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICE D THAT ASSESSEE HAS CLAIMED DEDUCTION OF RS.13,01,715/- U/ S 80HHC OF THE ACT. THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT WAS REJECTED BY THE AO FOR THE REASON THAT AS PER THE O VER-ALL RESULT AS PER FORM 10CCAC THAT WAS FILED BY THE ASSESSEE, THERE WA S GROSS LOSS OF RS.31,35,467/- IN EXPORT SEGMENT AND THAT THE PRO FIT WAS ONLY DUE TO THE INCENTIVE OF RS.84,44,331/- RECEIVED BY T HE ASSESSEE. HE WAS OF THE VIEW THAT THE INCENTIVE CANNOT BE CONSIDERED FOR ALLOWING DEDUCTION MORE SO WHEN OVERALL THER E WAS LOSS. HE WAS FURTHER OF THE VIEW THAT SINCE THE TURNOVE R OF THE 4 ASSESSEE WAS IN EXCESS OF RS.10 CRORE, ASSESSEES CASE WAS NOT COVERED BY NEWLY INSERTED EXPLANATION TO SEC.80HHC OF THE ACT. HE ACCORDINGLY DENIED THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO BY HOLDING AS UNDER : 3. THE APPELLANT DERIVES INCOME FROM CLOTH TRADING , MANUFACTURING AND EXPORT OF PROCESSED GOODS IN CLOT H. FOR THE YEAR UNDER CONSIDERATION THE APPELLANT HAS FILED ITS RET URN OF INCOME DISCLOSING TOTAL INCOME AT RS. 31,60,220/-. THE APP ELLANT HAD CLAIMED DEDUCTION UNDER SECTION 80HHC OF RS.13,01,7 15/-. IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3), APPEL LANTS CLAIM OF DEDUCTION UNDER SECTION 80HHC WAS REJECTED BY THE A SSESSING OFFICER. THE ASSESSING OFFICER OBSERVED THAT THE AP PELLANT HAS NOT SATISFIED ALL THE THREE CONDITIONS SIMULTANEOUSLY V IZ. (I) THE TURNOVER IS MORE THAN RS. 10 CRORE (II) THE APPELLANT HAD TH E OPTION TO CHOOSE BETWEEN DUTY DRAWBACK AND DEPB AND (III) THE RATE O F DUTY DRAWBACK WAS HIGHER THAN THAT OF DEPB NECESSARY FOR DEDUCTION ON PROFIT ON TRANSFER OF DEPB. HE ACCORDINGLY ADDED AN AMOUNT OF RS.13,01,715/-TO THE TOTAL INCOME. AGGRIEVED, THE A PPELLANT IS IN APPEAL. 4. BEFORE ME, THE APPELLANT HAS MORE OR LESS REITER ATED ITS CONTENTIONS RAISED DURING ASSESSMENT PROCEEDINGS. I N SUPPORT OF ITS CLAIM THE APPELLANT HAS RELIED ON THE DECISION IN T HE CASE OF TOPMAN EXPORT V/S ITO IN (2009) 125 TTJ ( MUMBAI). THE A PPELLANT CONTENDED THAT PROFITS ON TRANSFER OF DEPB IN SECTI ON 28(IIID) WOULD NOT INCLUDE THE FACE VALUE OF DEPB, SO THAT HE GETS THE BENEFIT OF DEDUCTION UNDER SECTION 80HHC. 5. THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABL E. THERE IS A DIRECT DECISION OF THE HONBLE BOMBAY HIGH COURT ON IDENTI CAL ISSUE IN THE CASE OF CIT V. KALPATARU COLOURS AND CHEMICALS [201 0] 328 ITR 451 (BOM.). THE HONBLE COURT DISMISSED THE CONTENTIONS OF THE APPELLANT IN THE FOLLOWING WORDS: TO GET OVER THIS DIFFICULTY, THE ASSESSEE CONTENDS THAT THE PROFITS ON TRANSFER OF DEPB IN SECTION 28(IIID) WOU LD NOT INCLUDE THE FACE VALUE OF THE DEPB SO THAT THE ASSE SSEE GETS A DEDUCTION UNDER SECTION 80HHC ON THE FACE VALUE O F THE DEPB. THERE IS NO MERIT IN THE ABOVE CONTENTION FOR THE FOLLOWING REASONS: (A) WHAT IS RECEIVED ON TRANSFER OF THE DEPB CREDIT IS THE PROFIT, BECAUSE DEPB CREDIT UNDE R THE DEPB SCHEME IS GIVEN AT A PERCENTAGE OF THE FOB VAL UE OF THE EXPORTS, SO AS TO NEUTRALIZE THE INCIDENCES OF CUSTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PRODUCT. T HE DEPB CREDIT IS ALSO GIVEN TO AN EXPORTER WHO HAS EXPORTE D GOODS WITHOUT IMPORTING RAW MATERIALS REQUIRED FOR THE EX PORT. DEPB CREDIT IS GIVEN FOR PAYING CUSTOMS DUTY ON IMP ORT OF GOODS WHICH MAY OR MAY NOT BE UTILIZED IN THE EXPOR T OF GOODS. WHEN THE DEPB CREDIT IS NOT UTILIZED FOR PA YING CUSTOMS DUTY BUT IS TRANSFERRED FOR ANY SUM, THEN S UCH SUM WOULD BE PROFITS ON TRANSFER OF THE DEPB COVERED UN DER 5 SECTION 28(IIID); (B) EVEN THE ASSESSEE HAS NOT DIS PUTED BEFORE THE COURT THAT THE ENTIRE AMOUNT RECEIVED ON TRANS FER OF THE DEPB IS BUSINESS INCOME CHARGEABLE TO TAX AS PROFI TS OF BUSINESS. HOWEVER, IT IS CONTENDED THAT THE FACE VA LUE OF THE DEPB WOULD NOT BE COVERED UNDER SECTION 28(IIID) BE CAUSE IT IS A CREDIT EARNED BY THE ASSESSEE. WHERE THE DUTY PAID IS RECEIVED BACK AS DUTY DRAWBACK IT IS ALSO AN AMOUNT EARNED BY THE ASSESSEE, BUT SUCH A RECEIPT IS STILL CONSID ERED AS PROFIT OF BUSINESS. SIMILARLY, THE AMOUNT REALIZED ON TRANSFER OF THE DEPB, BE IT EQUIVALENT TO THE FACE VALUE OF THE DEPB; MORE THAN THE FACE VALUE OF THE DEPB; OR LESS THAN THE FACE VALUE OF THE DEPB, WOULD BE PROFIT ON TRANSFER OF T HE DEPB COVERED UNDER SECTION 28(IIID); (C) THE FACT THAT THE ASSESSEE HAD ACCOUNTED FOR THE DEPB CREDIT IMMEDIATELY AFTER MAKING AN APPLICATION SEEKING THE DEPB CREDIT WOULD MAKE N O DIFFERENCE TO THE TAXABILITY OF THE ENTIRE AMOUNT RE CEIVED ON TRANSFER OF THE DEPB CREDIT UNDER SECTION 28(IIID). WHAT CONSTITUTES PROFIT UNDER SECTION 28(IIID) IS THE ACCOUNT RECEIVED ON TRANSFER OF THE DEPB CREDIT AND NOT THE AMOUNT OF CREDIT WHICH THE ASSESSEE WAS ENTITLED TO UNDER THE DEPB SCHEME. IN OTHER WORDS, THE AMOUNT EQUIVALENT TO TH E FACE VALUE OF THE DEPB AS WELL AS THE AMOUNT RECEIVED I N EXCESS OF THE DEPB WOULD CONSTITUTE PROFITS OF BUSINESS U NDER SECTION 28(IIID) AND MERELY BECAUSE, A PART OF SUCH PROFITS OF BUSINESS ( FACE VALUE) WAS OFFERED TO TAX IN THE YE AR IN WHICH THE CREDIT ACCRUED TO THE ASSESSEE WOULD NOT BE A GROUND TO HOLD THAT SUCH PROFIT WAS NOT COVERED UNDER SECTIO N 28(IIID). WHERE THE FACE VALUE OF THE DEPB CREDIT IS OFFERED TO TAX AS BUSINESS PROFITS UNDER SECTION 28(IIID) IN THE YEAR IN WHICH THE CREDIT ACCRUED TO THE ASSESSEE, THEN ANY FURTHE R PROFIT ARISING ON TRANSFER OF THE DEPB CREDIT WOULD BE TAX ED AS PROFITS OF BUSINESS UNDER SECTION 28(IIID) IN THE Y EAR IN WHICH THE TRANSFER OF THE DEPB CREDIT TOOK PLACE. THEREFO RE, THE ARGUMENT OF THE ASSESSEE THAT IF THE FACE VALUE OF THE DEPB CREDIT IS HELD TO BE COVERED UNDER SECTION 28(IIID) , IT WOULD AMOUNT TO DOUBLE TAXATION IS WITHOUT ANY MERIT. 6.THE HONBLE COURT WENT ON DESCRIBE THE NATURE OF PROFITS INCLUDED IN CLAUSES (IIIA), (IIIB), (IIIC), (IIID) AND (IIIE ) OF SECTION 28 AS INCENTIVE PROFIT WHICH ARE INDEPENDENT INCOMES NOT RELATABLE TO EXPORT INCOME TO WHICH NO CAST CAN BE ASCRIBED IN THE FOLLOWING M ANNER: THE RATIONALE FOR THIS EXCLUSION IS EXPLAINED IN THE JUDGMENT OF THE SUPREME COURT IN THE CIT V. K. RAVINDRANATHAN NAIR[2007] 295 ITR 228(SC). THE SUPR EME COURT HELD THAT THE EXPRESSION DERIVED FROM THAT IS USED IN SUB SECTION (1) OF THE SECTION 80HHC IS NARROWER IN ITS AMBIT THAN THE WORDS ATTRIBUTABLE TO AND CONSEQUENTLY, IT IS ONLY PROFITS THAT ARE DERIVED FROM EXPORT THAT QUALIFY F OR A DEDUCTION. THE SECOND IMPORTANT FACET OF THE JUDGME NT OF THE SUPREME COURT IS IN EXPLAINING THE PROVISIONS OF EX PLANATION (BAA). THE SUPREME COURT HAS OBSERVED THAT WHAT THE EXPLANATION POSTULATES IS THAT THOUGH INCENTIVE PRO FITS AND INDEPENDENT INCOMES CONSTITUTE A PART OF THE GROSS TOTAL INCOME, THEY HAVE TO BE EXCLUDED FROM THE GROSS TOT AL INCOME BECAUSE SUCH RECEIPTS HAVE NO NEXUS WITH THE EXPORT TURNOVER. IN REFERRING TO INCENTIVE PROFITS THE SUPREME COURT HAD IN CONTEMPLATION CLAUSES (IIIA) TO (IIIE) OF SE CTION 28. SIMILARLY, THE INDEPENDENT INCOMES TO WHICH A REFERE NCE HAS 6 BEEN MADE IN THE JUDGMENT OF THE SUPREME COURT ARE RECEIPTS BY WAY OF BROKERAGE, COMMISSION, INTEREST, RENT, CH ARGES AND ANY OTHER RECEIPT OF A SIMILAR NATURE INCLUDED IN T HE PROFITS OF THE BUSINESS. . THERE IS ANOTHER PERSPECTIVE FROM WHICH THE ISSUE C AN BE LOOKED AT . THE DEPB CREDIT TO WHICH AN EXPORTER IS ENTITLED IS A FORM OF AN EXPORT INCENTIVE. THE SUPREME COURT IN RAVINDRANATHAN NAIRS CASE [2007] 295 ITR 228 HAS H ELD THAT ALL THE INCOMES WHICH FALL WITHIN CLAUSES (III A) TO (IIIE) OF SECTION 28 ARE INCENTIVE INCOMES. AS AN INCENTIVE , THAT IS MADE AVAILABLE TO THE EXPORTER THERE IS NO COST THA T IS ATTACHED TO THE GRANT OF THE INCENTIVE. 7. IN THE CASE OF CIT V. KALPATARU COLOURS AND CHEM ICALS (SUPRA) THE CONTENTION THAT THE AMOUNT RECEIVED TO THE EXTENT OF THE FACE VALUE OF THE DEPB WOULD BE COVERED UNDER SECTION 28 (IIIB) W AS ALSO DISMISSED BECAUSE OF THE REASONS THAT THE DEPB CRED IT WAS NOT IN EXISTENCE WHEN SECTION 28(IIIB) WAS INSERTED BY THE FINANCE ACT OF 1990. DEPB CREDIT WAS INTRODUCED WITH EFFECT FROM A PRIL 1, 1997 WHICH WAS AFTER THE INSERTION OF CLAUSE (IIIB) IN S ECTION 28; (B) SECTION 28(IIIB) REFERS TO CASH ASSISTANCE (BY WHATEVER NAM E CALLED) RECEIVED BY THE ASSESSEE FROM THE GOVERNMENT PURSUANT TO A S CHEME OF THE GOVERNMENT. IT WAS ALSO HELD THAT THE AMOUNT RECEIVE 3D ON THE TRANSFER OF THE DEPB CREDIT IS NOT RECEIVED BY THE ASSESSEE FROM THE GOVERNMENT PURSUANT TO A SCHEME OF THE GOVERNMENT W ITHIN THE MEANING OF CLAUSE (IIIC). FINALLY, IT WAS HELD THAT SINCE SECTION 28(IIID) SPECIFICALLY DEALS WITH PROFITS REALIZED O N THE TRANSFER OF THE DEPB CREDIT, IT WOULD BE IMPERMISSIBLE AS A MATTER OF FIRST PRINCIPLE TO BIFURCATE THE FACE VALUE OF THE DEPB AND THE AMO UNT RECEIVED IN EXCESS OF THE FACE VALUE OF THE DEPB. 8. IN VIEW OF THE ABOVE DISCUSSIONS, THE ADDITION M ADE BY THE ASSESSING OFFICER IS CONFIRMED. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT WHILE COMPUTING DEDUCTION U/S 80HHC OF THE ACT AO HAS CONSIDERED THE E NTIRE INCENTIVE TO BE THE PROFIT AND THE SAME WAS REDUCED. HE SUBMITTED THAT ONLY THE PROFIT ON SALE OF DEPB RECEIPTS SHOULD BE R EDUCED FOR WORKING OUT THE DEDUCTION. HE FURTHER SUBMITTED THAT LD .CIT(A) WHILE UPHOLDING THE ORDER OF AO HAD RELIED ON THE DECISION OF 7 HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOU RS & CHEMICALS (2010) 328 ITR 451 BUT HOWEVER, THE AFORESAID DE CISION OF HONBLE BOMBAY HIGH COURT HAS BEEN REVERSED BY HON BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT 342 ITR 4 9. HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED BA CK TO THE FILE OF AO WITH A DIRECTION TO HIM TO DECIDE THE ISSUE AFTER CONSIDERING THE RATIO OF DECISION IN THE CASE OF TOPMAN E XPORTS (SUPRA). LD.D.R. ON THE OTHER HAND, SUPPORTED THE ORDER O F AO AND LD.CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MAT ERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DENIAL OF DEDUCTION U/S 80HHC OF THE ACT. WE FIND THAT WITH RESPE CT TO DEDUCTION U/S 80HHC OF THE ACT WITH RESPECT TO DEPB CR EDITS, THE HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPR A) HAS HELD THAT PROFIT ON TRANSFER OF DEPB WOULD BE THE SALE VALUE O F DEPB LESS THAN FACE VALUE WHICH REPRESENTS THE PROFIT OF DEPB. IT HAS FURTHER HELD THAT ENTIRE SUM RECEIVED ON TRANSFER OF DEPB IS NOT CHARGEABLE AND DEPB IS CHARGEABLE AS INCOME U/S 28(IIID) O F THE ACT IN THE YEAR IN WHICH AN ASSESSEE APPLIES FOR DEPB CRE DIT AGAINST THE EXPORTS WHEREAS THE PROFIT ON TRANSFER IS CH ARGEABLE AS INCOME U/S 28(IIID) IN THE HANDS OF THE ASSESSEE IN THE YE AR IN WHICH IT TRANSFERS. 8. IN THE PRESENT CASE, WE FIND THAT AO AND LD.CIT(A) HAD NOT EXAMINED THE ISSUE OF DEDUCTION U/S 80HHC OF THE ACT IN T HE LIGHT OF THE AFORESAID DECISION OF APEX COURT AS THE SAME WAS N OT 8 AVAILABLE BEFORE THEM. WE FURTHER FIND THAT LD.CIT(A) WHILE UPHOLDING THE ACTION OF AO HAD RELIED ON THE DECISION IN THE CASE OF KALPTARU COLOURS AND CHEMICALS (SUPRA). THE DECISION IN THE CASE OF KALPTARU COLOURS (SUPRA) HAS BEEN SET ASIDE BY THE HON BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). WE ARE TH EREFORE OF THE VIEW THAT THE ISSUE OF DEDUCTION U/S 80HHC OF THE AC T NEEDS TO BE RE-EXAMINED BY THE AO IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). WE THEREFO RE RESTORE THE ISSUE BACK TO THE FILE OF AO FOR HIM TO DECIDE THE ISSU E OF DEDUCTION U/S 80HHC OF THE ACT IN THE LIGHT OF THE AFORESA ID DECISION OF THE HONBLE APEX COURT AND IN ACCORDANCE WIT H THE LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPPORTU NITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE REQUIRED DETAILS CALLED FOR BY THE AO. THUS, THE GROUN DS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, THE GROUNDS OF THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 24 TH DAY OF MAY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; ! DATED : 24 TH MAY, 2017. YAMINI 9 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. 6. CIT(A)-KOLHAPUR. CIT(CENTRAL), PUNE. #$% &&'(,* '(, / DR, ITAT, A PUNE; %+,-/ GUARD FILE. / BY ORDER, // //// // TRUE COP // /// TRUE // //COPY // TRUE COPY // // . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.