A.C.I.T Cir - 34,Kolkata., Kolkata V. M/s Calcutta Export Co, Kolkata

ITA 624/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100055 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 22-03-2013
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Assessee Lawyers: A K TULSYAN FCA LD
• Keywords: Retrospective amendment
• Section: 28; 2; 143(3); 80HHC

Judgement Text

ITA NO.62 4/KOL/2013-C-AM M/S. CALCUTTA EXPORT CO. 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 624/KOL/2013 A.Y 2003-04 THE ACIT, CIR-34, KOLKATA VS. M/S. CALCUTTA E XPORT CO PAN:AACFC 3872C (APPELLANT) (RESPONDENT) FOR THE APPELLANT/DEPARTMENT: SHRI RAJENDRA PRAS AD, JCIT, SR.DR FOR THE RESPONDENT : SHRI A.K. TULSYAN, FCA, LD.AR DATE OF HEARING: 17-11-2015 DATE OF PRONOUNCEMENT: 20 -11-2 015 ORDER SHRI M.BALAGANESH, AM THIS APPEAL OF THE REVENUE ARISES OUT OF THE ORD ER OF THE LEARNED CIT(A)-XX, KOLKATA IN APPEAL NO. 49/CIT(A)-XX/CIRCLE 34/2007- 08/KOL DATED 12-12-2012 FOR THE ASST YEAR 2003-04 AGAINST THE ORDER OF ASSESSMENT F RAMED U/S 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS WITH REGARD TO DEDUCTION U/S. 80HHC OF THE ACT IN THE CONTEXT OF PROFIT ON SALE OF DEPB . 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSES SEE IS ENGAGED IN THE BUSINESS OF EXPORT OF CAST IRON PRODUCT TO USA AND SOME EUROPEA N COUNTRIES. DURING THE ASSESSMENT YEAR 2003-04, THE ASSESSEE SOLD THE DEPB, WHICH HA D ACCRUED TO IT ON EXPORT OF ITS PRODUCTS. THE TURNOVER OF THE ASSESSEE IS MORE THA N 10 CRORES. HENCE, THE ASSESSEES CASE FALLS UNDER THE AMENDED PROVISIONS OF SECTION 80HHC (3) 3 RD PROVISO, WHICH IS WITH RETROSPECTIVE EFFECT FROM 1-4-98. THE ASSESSEE CLAI MED DEDUCTION U/S. 80HHC IN ITS RETURN TO THE EXTENT OF RS.2,99,82,097/-. THE LD.AO RESTR ICTED THE SAME TO RS.1,05,53,316/-. ON ITA NO.62 4/KOL/2013-C-AM M/S. CALCUTTA EXPORT CO. 2 1 ST APPEAL, THE LD.CIT(A) RELYING ON THE DECISION OF T HE HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT REPORTED IN 342 ITR 49(SC) D IRECTED THE AO TO ALLOW THE DEDUCTION U/S. 80HHC OF THE ACT TO THE TUNE OF RS . 2,39,95,646/-. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GRO UNDS:- 1. ON THE FACTS OF THE CASE AND IN LAW LD.CIT(A) ER RED IN RECALCULATING THE DEDUCTION U/S. 80HHC AT RS.2,39,9 5,646/-. AS AGAINST RS.1,05,53,316/- ALLOWED BY THE AO. 2. ON THE FACTS OF THE CASE AND IN LAW LD.CIT(A) ER RED IN INCREASING THE EXPORT PROFIT BY 90% OF DEPB SALES PROFIT WRONGLY RELYING ON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF TOPMAN EXPORTS 342 ITR 49(SC). 3. ON THE FACTS OF THE CASE AND IN LAW LD.CIT(A) FA ILED TO APPRECIATE THAT IN THE CASE OF TOPMAN EXPORTS, HON BLE SUPREME COURT HAD ONLY CLARIFIED THAT FOR CALCULATING PROFI T ON SALE OF DEPB, THE COST ATTRIBUTABLE TO DEPB HAS TO BE REDUCED FOR THE GROSS RECEIPT. 4. ON THE FACTS OF THE CASE AND IN LAW, LD.CIT(A) F AILED TO APPRECIATE THAT IN THE CASE OF TOPMAN EXPORTS, HON BLE SUPREME COURT HAS SPECIFICALLY OPINED THAT WHEN THE EXPORT TURNOVER OF THE ASSESSEE EXCEEDS RS. 10 CRORE, HE WILL GET BENEFIT OF ADDITION OF NINETY PERCENT OF EXPORT INCENTIVE UNDER CLAUSE (IIID) OF SEC. 28 TO HIS EXPORT PROFIT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISSUE UNDER APPEAL IS SQUARELY COV ERED BY THE SAID DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (STATED SUPRA). HENCE, WE DIRECT THE LD.AO TO RE-COMPUTE THE DEDUCTION CLAIMED U/S. 80HHC OF THE ACT IN THE LIGHT OF THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF (STATED SUPRA) IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 20 /11/ 2015 DATED 20 /11/2015 SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) ITA NO.62 4/KOL/2013-C-AM M/S. CALCUTTA EXPORT CO. 3 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT :ACIT, CIR-34, AAYKAR POORVA, 7 TH FL., 110 SHANTIPALLY, KOL-107. 2 THE RESPONDENT- M/S. CALCUTTA EXPORT CO. 18 R.N MUKHERJEE ROAD, 4 TH FL., KOL-1. 3 4.. THE CIT, THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS