Asstt. Commissioner of Income Tax-1, Kanpur V. M/s Calico Trends, Kanpur

ITA 553/LKW/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9110 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-01-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 30-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIRAJNISHYADAV
• Assessee Lawyers: SHRIRAKESHGARG
• Keywords: Retrospective amendment
• Section: 80HHC; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.553/LKW/2014 ASSESSMENT YEAR : 2003-04 ASSISTANT COMMISSIONER OF INCOME TAX I, KANPUR. VS M/S. CALICO TRENDS, 60-A, JAJMAU, KANPUR. PAN NO.- AABFC1787H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRIRAJNISHYADAV, D.R. RESPONDENT BY : SHRIRAKESHGARG,ADVOCATE DATE OF HEARING: 12 01 2015 DATE OF PRONOUNCEMENT: 23 01 2015 O R D E R PER SUNIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT (A), INTER AILA ON FOLLOWING GROUNDS :- 1. LD. COMMISSIONER OF INCOME TAX (APPELAS)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE REASSESSMENT MADE U/S 147 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. 2. LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, KANPUR HAS ERRED IN LAW AND ON FACTS IN ANNULLING THE ASSESSMENT WITHOUT --2-- APPRECIATING THE FACT THAT REASSESSMENT CAN BE MADE TO GIVE EFFECT TO THE AMENDMENTS BROUGHT ON BY THE STATUTE WITH RETROSPECTIVE EFFECT. 3. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, KANPUR DATED 25.03.2014 BEING ERRONEOUS IN LAW AND ON FACTS, BE QUASHED AND THE ORDER DATED 05.12.2007 PASSED UNDER SECTION 147/143(3) OF INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND/OR TO ADD ANY FRESH GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 2. DURING THE COURSE OF HEARING OF APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT) ON THE BASIS OF AMENDMENT BROUGHT IN SECTION 80HHC BY THE TAXATION LAW AMENDMENT ACT, 2005 WITH EFFECT FROM 01.04.1998. THE RETROSPECTIVE EFFECT OF THIS AMENDMENT WAS STRUCK DOWN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF AVANI EXPORT VS CIT AND OTHER 348 ITR 391 AS WELL AS HONBLE MUMBAI HIGH COURT IN THE CASE OF VIJAYA SILK HOUSE (BANGALORE) LTD VS UNION OF INDIA & OTHERS REPORTED AT 257 CTR 67. 3. FOLLOWING THE JUDGMENTS, THE TRIBUNAL IN THE CASE OF M/S RAHMANEXPORTSVS DCIT (ITA NO.11, 65 & 56/LKW/2013 ) HAS HELD THE REOPENING TO BE BAD IN LAW AS IT WAS DONE ON THE BASIS OF THE AFORESAID RETROSPECTIVE AMENDMENT IN SECTION 80 HHC OF THE ACT. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD. 4. THE LD. COUNSEL FOR THE ASSESSEECONTENDED THAT IN THE LIGHT OF THESE FACTS, THE REOPENING THE ASSESSMENT ON THE BASIS OF THE --3-- RETROSPECTIVE AMENDMENTBE HELD TO BE BAD IN LAW AND THE ORDER OF CIT (A) BE CONFIRMED. 5. THE LD.D.R. PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER. 6. HAVING CAREFULLY, EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF RIVEL SUBMISSIONS,WE FIND THAT CIT (A) HAS HELDTHE REOPENING TO BE BAD IN LAW, AS IT WAS DONE ON THE BASIS OF AFORESAID RETROSPECTIVE AMENDMENT HAVING RELIED ON VARIOUS JUDICIAL PRONOUNCEMENTS. 7. SINCE THE RETROSPECTIVE AMENDMENT IN SECTION 80 HHC WAS STRUCK DOWN BY DIFFERENT HONBLE HIGH COURTS, REOPENING ON THE BASIS RETROSPECTIVE AMENDMENT CANNOT BE HELD TO BE VALID. ACCORDINGLY, WE FIND NO MERIT IN THE GROUNDS RAISED BY THE REVENUE. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- (A.K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23RD JANUARY, 2015 COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR