AMAR INERNATIONAL, MUMBAI V. DCIT CIR 17(1), MUMBAI

ITA 586/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1743 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PARAS S SAVLA
• Keywords: Opportunity of being heard; Retrospective amendment
• Section: 80HHC; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL, JUDICIAL MEMBER A ND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A. NO.586/M/2012 ASSESSMENT YEAR: 2003-2004 M/S. AMAR INTERNATIONAL, AMAR HOUSE, 14/16, M.M.G.S. MARG, DADAR (EAST), MUMBAI 400 014. PAN:AAAFA2660E VS. DY. CIT, CITY-17(1), 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARAS S. SAVLA RESPONDENT BY : SHRI MANOJ KUMAR, CIT-DR DATE OF HEARING: 31.01.2013 DATE OF ORDER: 15.2.2013 O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 30.1.2012 IS A GAINST THE ORDER OF CIT (A)- 19, MUMBAI DATED 5.12.2011 FOR THE ASSESSMENT YEAR 2003-2004. 2. AT THE OUTSET, SHRI PARAS S. SAVLA, LD COUNSEL F OR THE ASSESSEE MENTIONED THAT GROUND NO.1 RELATING TO THE VALIDITY OF REOPENING U/S 147 OF THE ACT AND STATED THAT THE SAME IS NOT PRESSED. FURTHER, ON THE MERIT S OF THE ADDITION, REFERRING TO GROUND 2, LD COUNSEL MENTIONED THAT THE SAID GROUND 2 RELATES TO DEDUCTION U/S 80HHC OF THE ACT AND THE SAME NEEDS TO BE SENT TO T HE FILES OF THE AO FOR ADJUDICATING THE ISSUE AFRESH IN THE LIGHT OF THE H ONBLE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF VIJAYA SILK HOUSE (MUMBAI) LIMITED VS. UNION OF INDIA & ANR. IN WRIT PETITION NO. 2544 OF 2010 AND ALSO HON BLE GUJARAT HIGH COURT JUDGMENT DATED 2 ND JULY, 2012. THE JUDGMENT IS RELEVANT FOR THE PROPO SITION THAT THE AMENDMENT TO SECTION 80-HHC OF THE ACT SHOULD NOT B E APPLIED IN RESPECT OF EARLIER ASSESSMENT YEARS OF THE ASSESSEES WHOSE EXPORT TURN OVER IS ABOVE RS. 10 CR. IN OTHER WORDS, IN THIS TYPE OF SUBSTANTIVE AMENDMENT, RETROSPECTIVE OPERATION CAN BE GIVEN ONLY IF IT IS FOR THE BENEFIT OF THE ASSESSEE BUT NOT IN A CASE WHERE IT AFFECTS EVEN A FEWER SECTION OF THE ASSESSEE. ASSESSEE FIL ED A COPY OF THE SAID WRIT PETITION AND PARA 7 IS RELEVANT IN THIS REGARD WHICH IS REPR ODUCED AS UNDER: 7. THE GUJARAT HIGH COURT HEARD A BATCH OF WRIT PET ITIONS. BY AN ORDER AND JUDGMENT DATED 2 ND JULY, 2012, A DIVISION BENCH OF THE GUJARAT HIGH C OURT DISPOSED OF THE WRIT PETITIONS IN THE FOLLOWING TER MS:- 26. ON CONSIDERATION OF THE ENTIRE MATERIALS ON RE CORD, WE THEREFORE, FIND SUBSTANCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE PETITIONERS THAT THE IMPUGNED AMENDMENT IS VIOL ATIVE FOR ITS RETROSPECTIVE OPERATIVE IN ORDER TO OVERCOME THE DE CISION OF THE TRIBUNAL, AND AT THE SAME TIME, FOR DEPRIVING THE B ENEFIT EARLIER GRANTED TO A CLASS OF THE ASSESSEES WHOSE ASSESSMEN TS WERE STILL PENDING ALTHOUGH SUCH BENEFIT WILL BE AVAILABLE TO THE ASSESSEES WHOSE ASSESSMENTS HAVE ALREADY BEEN CONCLUDED. IN OTHER WORDS, IN THIS TYPE OF SUBSTANTIVE AMENDMENT, RETROSPECTIVE OPERAT ION CAN BE GIVEN ONLY IF IT IS FOR THE BENEFIT OF THE ASSESSEE BUT N OT IN A CASE WHERE IT AFFECTS EVEN A FEWER SECTION OF THE ASSESSEE. 27. WE, ACCORDINGLY, QUASH THE IMPUGNED AMENDMENT ONLY TO THIS EXTENT THAT THE OPERATIVE OF THE SAID SECTION COULD BE GIVEN EFFECT FROM THE DATE OF AMENDMENT AND NOT IN RESPECT OF EARLIER ASSESSMENT YEARS OF THE ASSESSEES WHOSE EXPO RT TURNOVER IS ABOVE RS. 10 CR . IN OTHER WORDS, THE RETROSPECTIVE AMENDMENT SHOULD NOT BE DETRIMENTAL TO ANY OF THE A SSESSEE. 3. WE FIND MERIT IN THE ARGUMENTS OF LD COUNSEL AND WE DIRECT THE ASSESSING OFFICER TO EXAMINE THE SAME IN THE LIGHT OF THE ABO VE CITED JUDGMENT AND ALSO THE FACTS OF THE ASSESSEE AND RE-ADJUDICATE THE ISSUE A FTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, GROUNDS RAISED BY THE ASSESSEE ARE SET ASIDE . 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2013. SD/- SD/- (DINESH KUMAR AGARWAL) (D. KARUNAKARA RAO) JUDICIAL MEMBER A CCOUNTANT MEMBER DATE : 15.2 .2013 AT :MUMBAI OKK COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR A, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI