DCIT 6(2)(1), MUMBAI V. CENTURY TEXTILES & INDUSTRIES LTD, MUMBAI

ITA 643/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7885 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PURSHOTTAM KUMARDR
• Assessee Lawyers: P R TOPRANI
• Keywords: Reopening of assessment; Rectification of order; Audit objection; Tangible material; Wrong claim; Bad and doubtful debts; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 260A; 80IB; 147; 148; 11

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.643/MUM/2016 ASSESSMENT YEAR: 2009-10 DCIT, CIRCLE-6(2)(1), R. NO.563, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI-400020 / VS. M/S CENTURY TEXTILES & INDUSTRIES LTD. CENTURY BHAVAN, DR. A.B. ROAD, MUMBAI-400018 ( / REVENUE) ( !' # /ASSESSEE) P.A.NO . AAAC2659Q $ % # & / DATE OF HEARING : 27/12/2017 % # & / DATE OF ORDER: 27/12/2017 ! / REVENUE BY SHRI PURSHOTTAM KUMAR-DR !' # ! / ASSESSEE BY SHRI P.R. TOPRANI ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 05/11/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ON REOPENING OF ASSESSMENT AS BAD IN LAW WITHOUT CONSIDERING EXPLANATION-2 TO SECTION 147 AND SPECIA LLY CLAUSE (C) AND ITS SUB-CLAUSES (I), (III) AND (IV) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AND FURTHER DEL ETING THE PENALTY OF RS.80,32,738/- LEVIED ON ACCOUNT OF CONC EALMENT OF INCOME AND FILING INACCURATE PARTICULARS U/S 271 (1)(C) OF THE ACT. 2. DURING HEARING, THE LD. DR, SHRI PUROSHOTTAM KUMAR, CONTENDED THAT THE TRIBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSESSEE VIDE ORDER DATED 28/11/2017 (I TA NO.5739/MUM/2015) FOR ASSESSMENT YEAR 2009-10, THEREFORE, IN ALL FAIRNESS, THIS APPEAL MAY BE SENT TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUDICATION. THE LD. DR ALSO INVITED OUR ATTENTION TO VARIOUS PARAS AND SPECIFICALLY PAGE-63 AND 73 OF TH E PAPER BOOK. ON THE OTHER HAND, THE LD. COUNSEL FOR THE A SSESSEE, SHRI P.R. TOPRANI, DID NOT CONTROVERT THE FACTUAL M ATRIX THAT ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 3 THE ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL AND MERELY CLAIMED THAT DEDUCTION U/S 80IC WAS RIGHTLY CLAIMED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER DATED 28/11/2017 IN THE CA SE OF ASSESSEE ITSELF (ITA NO.5739/MUM/2015) FOR READY RE FERENCE AND ANALYSIS:- THIS APPEAL, FILED BY THE REVENUE, BEING ITA NO. 5 739/MUM/2015 FOR ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST TH E APPELLATE ORDER DATED 09- 10-2015 PASSED BY LEARNED COMMISSIO NER OF INCOME TAX (APPEALS)-12, MUMBAI (HEREINAFTER CALLED THE CIT(A)) RECTIFYING THE APPELLATE ORDER DATED 13-08 -2015 PASSED BY LEARNED CIT(A), FOR ASSESSMENT YEAR 2009-10, APP ELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM T HE ASSESSMENT ORDER DATED 30-01-2014 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) R. W.S 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) . 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN T HE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL , MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. 'ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE IGNORING THE FACT THAT THE DECISION OF THE HON'BLE. ITAT IN ASSESSEE OWN CASE FOR A. Y 2007-08 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND APPEAL U/S 260A HAS BEEN FILED BEFORE THE HON 'BLE BOMBAY HIGH COURT. ' 2. 'ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN CONSIDERING THE REOPENING THE CASE AS BAD IN LAW WITHOUT CONSIDERING EXPLANATION-2 TO SECTION 147 AN D ESPECIALLY ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 4 CLAUSE (C) AND ITS SUB-CLAUSES (I), (II) & (IV) OF T HE INCOME TAX ACT, 1961.' 3. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) ERRED IN CONSIDERING THE REOPENING THE CASE AS BAD IN LAW WITHOUT APPRECIATING THE FACT THAT NO OPINION HAS B EEN FORMED ON THE ISSUE OF ALLOWING DEDUCTION U/S. 80-1C IN RESPECT O F COMPONENT OF 'OTHER INCOME' WHICH WAS NOT DERIVED FROM INDUSTRIA L UNDERTAKING AND THEREFORE ON THIS ISSUE ON WHICH ASSESSMENT IS SOUGHT TO BE REOPENED THERE WAS NO QUESTION OF 'CHANGE OF OPINIO N' AS HELD ERRONEOUSLY BY THE TRIBUNAL, AND MATERIAL AVAILABLE ON RECORD WOULD FORM 'TANGIBLE MATERIALS' TO CONSTITUTE 'REASON TO BELIEVE' THAT INCOME HAS ESCAPED ASSESSMENT AT THE TIME OF REOPENING OF ASSESSMENT. 4. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) ERRED IN IGNORING THE RATIO OF DECISION OF T HE BOMBAY HIGH COURT IN THE CASE OF EXPORT CREDIT GUARANTEE CORPOR ATION OF INDIA LTD. AND PUNJAB & HARYANA HIGH COURT DECISION IN TH E CASE OF JAWAND SONS 326 ITR 39 WHICH IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE, WHILE COMING TO THE CONCLUSION THAT REOPE NING OF ASSESSMENT (WHICH IS BEFORE THE EXPIRY OF FOUR YEARS FROM END OF THE IMPUGNED ASSESSMENT YEAR) IS BAD IN LAW. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF TEXTILE, CEMENT, C HEMICALS, POWER GENERATION ETC. . THE ASSESSMENT IN THE CASE OF THE ASSESSEE WAS ORIGINALLY FRAMED BY THE AO U/S. 143(3) ON 26.1 2.2011 , WHEREIN THE INCOME WAS ASSESSED AT RS. 134,37,34,55 6/- AGAINST THE RETURNED INCOME OF RS.113,88,48,895/- . THE TOT AL INCOME WAS FURTHER REVISED AT RS. 126,60,19,165/- BY THE AO VI DE ORDER GIVING EFFECT TO ORDER OF THE LEARNED CIT(A) DATED 30.07.2 013 . ON PERUSAL OF THE RECORDS , IT WAS OBSERVED BY THE A.O AS UNDER:- SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (317 ITR 218)(SC) ON THE ISSUE OF SECTION 80IC OF THE INCOME TAX ACT 1961, HELD THAT 'THE WORDS 'DERIVED FROM' ARE NARROWER IN CONNOTATION AS COMPARED TO THE WORDS 'ATTRIBUTABLE TO'. IN OTHE R WORDS, BY USING THE EXPRESSION 'DERIVED FROM', PARLIAMENT INT ENDED TO COVER SOURCES, NOT BEYOND THE FIRST DEGREE.' SC HELD THAT THE RECEIPTS, BY WAY OF DUTY DRAWBACK AND SALE OF DUTY ENTITLEMENT P ASS BOOK (DEPB) LICENCE BY THE TAXPAYER, DO NOT FORM PART OF THE PROFITS 'DERIVED FROM' THE INDUSTRIAL UNDERTAKING (IU), ELI GIBLE FOR TAX HOLIDAY UNDER THE INDIAN TAX LAW. THE SC FURTHER HE LD THAT THE DUTY DRAWBACK AND SALE OF DEPB LICENCE ARE INCENTIV ES WHICH FLOW FROM THE SCHEMES FRAMED BY THE GOVERNMENT OF I NDIA (GOI) AND DO NOT HAVE ANY DIRECT NEXUS WITH THE PROFITS D ERIVED FROM THE ELIGIBLE IU OF THE TAXPAYER. ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 5 THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 80IC OF RS. 30,36,22,952/- FOR ITS PULP AND PAPER UNIT LOCATED AT LALKUA, DIST RICT NAINITAL. THE ASSESSING OFFICER DISALLOWED INCOME OF RS.9,56,18,3 76/- OUT OF THE ABOVE CLAIM AND ALLOWED THE BALANCE AMOUNT AS ADMIS SIBLE DEDUCTION. IT IS SEEN THAT THE ASSESSEE HAS CLAIMED EXPORT INCENTIVES OF RS.2,36,32,653/- UNDER THE HEAD OTHER INCOME (SCHEDULE 6). AS EXPORT INCENTIVES HAVE BEEN HELD B Y THE SUPREME COURT AS HAVING NO NEXUS WITH MANUFACTURING, THE SA ME ARE NOT ELIGIBLE FOR DEDUCTION U/S. 80IC. FAILURE TO DO SO HAS RESULTED IN EXCESS ALLOWANCE OF DEDUCTION UNDER SECTION 80IC TO THE EXTENT OF RS.2,36,32,653/-. THEREFORE, INCOME TO THE EXTENT O F RS.2,36,32,653/- HAS ESCAPED ASSESSMENT. THUS , THE A.O HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT DUE TO FAI LURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY AL L MATERIAL FACTS NECESSARY FOR THE ASSESSMENT WHICH LED TO THE ISSUA NCE OF NOTICE DATED 13.06.2013 U/S. 148 OF THE ACT WHICH WAS DULY SERVED ON THE ASSESSEE, WHICH NOTICE WAS ISSUED WITHIN FOUR Y EARS FROM THE END OF THE ASSESSMENT YEAR . VIDE AFORE-SAID NOTICE , THE ASSESSEE WAS ASKED TO FILE THE RETURN OF INCOME . THE ASSESS EE IN REPLY SUBMITTED THAT ORIGINAL RETURN OF INCOME FILED ON 3 0.09.2009 U/S 139(1) MAY BE TREATED AS RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 148. THE ASSESSEE ALSO REQUESTED THE AO TO FURNISH REASONS RECORDED FOR THE REOPENING OF THE CASE WHIC H WERE DULY FURNISHED BY THE AO TO THE ASSESSEE . THE ASSESSEE IN REPLY SUBMITTED THAT WHILE SUBMITTING RETURN OF INCOME U/ S 139(1), THE ASSESSEE HAS SUBMITTED AN EXPLANATION VIDE LETTER D ATED 29-09- 2009 IN SUPPORT OF ITS CLAIM U/S 80IC AS UNDER : DURING THE YEAR, THE COMPANY HAS CLAIMED DEDUCTIO N U/S 80IC OF THE ACT AGGREGATING TO RS. 30,36,22,964/- I N RESPECT OF PAPER, WHILE COMPUTING THIS DEDUCTION THE COMPANY H AS CONSIDERED ITEMS OF INCOME LIKE RENT FROM PROPERTIES GIVEN ON LEASE TO STAFF, EXPORT BENEFITS, SALE OF SCRAP, INSURANCE CLAIMS RE CEIVED, MISCELLANEOUS INCOME, PROVISIONS NO LONGER REQUIRED WRITTEN BACK , ETC. AS PROFITS DERIVED BY 80IC UNDERTAKING. THE ASSESSEE HAS EARNED OTHER INCOME AS PER FINANCI AL STATEMENTS , THE DETAILS OF WHICH ARE AS UNDER: ' SCHEDULE '6' OTHER INCOME RENT FROM PROPERTIES RS. 4,83,673/- ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 6 SURPLUS ON SALE OF ASSETS RS. 1,04,014/- EXPORT BENEFITS RS.2,36,32,653/- SALE OF SCRAP RS.2,64,72,728/- INSURANCE AND OTHER CLAIMS RS. 21,41,977/- MISCELLANEOUS INCOME RS.5,38,64,040/- VAT INPUT CREDIT RECEIVED GAIN ON FOREIGN CURRENCY FLUCTUATION (NET) PROVISIONS NO LONGER REQUIRED RS. 1,24,91,873 /- PROVISION FOR DOUBTFUL DEBTS WRITTEN BACK RS.69,2 0,850/- ---------------------------- TOTAL RS. 12,61,11,808/- __________________ THE A.O , WHILE ALLOWING DEDUCTION U/S. 80IC IN THE ASSESSMENT PROCEEDINGS U/S. 143(3) HOWEVER CONSIDER ED EXPORT INCENTIVES TO THE TUNE OF RS. 2,36,32,653/- TO BE E LIGIBLE WHILE COMPUTING PROFITS ELIGIBLE FOR COMPUTING DEDUCTION U/S. 80IC . THIS IS THE MAIN BONE OF CONTENTION BETWEEN THE RIV AL PARTIES WHICH HAS LED TO THE REOPENING OF THE CONCLUDED ASS ESSMENT AS THE A.O HAS OBSERVED THAT BY CONSIDERING EXPORT INC ENTIVE TO THE TUNE OF RS. 2,36,32,653/- TO BE ELIGIBLE FOR COMPUT ING PROFITS ELIGIBLE FOR DEDUCTION U/S. 80IC IS CONTRARY TO THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA V. C IT (2009) 317 ITR 218(SC) WHICH LED TO AN ESCAPEMENT O F INCOME LEADING TO REOPENING OF THE CONCLUDED ASSESSMENT U/ S 147 OF THE 1961 ACT. THE ASSESSEE CHALLENGED THE REOPENING OF THE ASSESSMENT BY THE AO U/S. 147 AND SUBMITTED THAT IT IS MERELY A CHANGE OF OPINION BY THE AO AS THE AO HAS DULY APPL IED HIS MIND WHILE GRANTING DEDUCTION U/S 80IC IN THE ORIGI NAL ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 143(2) , W HEREIN EXPORT BENEFITS WERE CONSIDERED BY THE AO TO BE ELI GIBLE FOR COMPUTING DEDUCTION U/S 80IC AND NOW BY REOPENING T HE CONCLUDED ASSESSMENT , IS MERELY A CHANGE OF OPINIO N BY THE AO WHICH IS NOT PERMISSIBLE UNDER LAW . IT WAS ALSO SU BMITTED BY THE ASSESSEE THAT REOPENING OF THE CONCLUDED ASSESS MENT U/S 147 IS DONE BY THE AO WITHOUT ANY NEW TANGIBLE MATERIAL COMING INTO POSSESSION OF THE AO , WHICH IS NOT IN ACCORDA NCE WITH LAW. IT IS ALSO CLAIMED BY THE ASSESSEE THAT THE REOPENI NG OF THE CONCLUDED ASSESSMENT U/S 147 IS DONE BASED ON AUDIT OBJECTIONS ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 7 WHICH IS NOT PERMISSIBLE. THE ASSESSEE RELIED UPON SEVERAL DECISIONS INCLUDING FULL BENCH DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT V. KELVINATOR OF INDIA LTD . 256 ITR 1 WHICH WAS LATER AFFIRMED BY HON BLE SUPREME COURT IN 320 ITR 561(SC). THE ASSESSEE ALSO RELIED UPON SEVERAL OTHE R DECISIONS WHICH ARE CITED IN THE ASSESSMENT ORDER DATED 30-01 -2014 PASSED BY THE A.O. U/S 143(3) R.W.S. 147 . THE A.O REJECTED THE CONTENTIONS OF THE ASSESSEE KE EPING IN VIEW DECISION OF HON BLE SUPREME IN THE CASE OF LIBERTY INDIA LIMITED V. CIT (SUPRA), WHEREIN HON BLE SUPREME COURT HELD THAT SUCH INCENTIVES FLOW FROM THE SCHEME FRAM ED BY THE GOVERNMENT OF INDIA(GOI) WHICH DO NOT HAVE DIRECT N EXUS WITH THE PROFITS DERIVED FROM THE ELIGIBLE UNIT OF THE T AX-PAYER . IT WAS HELD BY HON BLE SUPREME COURT THAT THE WORD DERIVED FROM ARE NARROWER IN CONNOTATION AS COMPARED TO THE WORD S ATTRIBUTABLE TO . THUS, HON BLE SUPREME COURT HELD THAT THE RECEIPTS , BY WAY OF DUTY DRAWBACK AND SALE OF DEPB LICENSE BY THE TAXPAYER , DO NOT FORM PART OF THE PROFITS DER IVED FROM THE INDUSTRIAL UNDERTAKING ELIGIBLE FOR TAX HOLIDAY UND ER THE 1961 ACT AS THESE INCENTIVES FLOW FROM THE SCHEME FRAMED BY GOI AND DO NOT HAVE DIRECT NEXUS WITH THE PROFITS DERIV ED FROM THE BUSINESS OF THE ELIGIBLE UNDERTAKING, VIDE RE-ASSES SMENT ORDER DATED 30-01-2014 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT. 4. AGGRIEVED BY THE RE-ASSESSMENT ORDER DATED 30-01 -2014 PASSED BY THE AO U/S 143(3) R.W.S. 147 , THE ASSESS EE FILED FIRST APPEAL BEFORE THE LEARNED CIT(A) WHO REJECTED THE C ONTENTIONS OF THE ASSESSEE BY DISMISSING THE APPEAL OF THE ASS ESSEE VIDE APPELLATE ORDERS DATED 13-08-2015 WHICH WAS LATER R ECTIFIED BY LEARNED CIT(A) VIDE RECTIFICATION ORDERS DATED 09-1 0-2015 PASSED BY LEARNED CIT-A, WHO ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING THAT REOPENING CANNOT BE DONE U /S. 147 KEEPING IN VIEW OF THE TRIBUNAL DECISION IN THE CAS E OF ASSESSEE FOR A.Y 2007-08 IN ITA NO. 2036/MUM/2013 WHEREIN TR IBUNAL QUASHED REOPENING U/S 147 AND HENCE APPEAL OF THE A SSESSEE WAS ALLOWED. THE GROUNDS ON MERITS WERE DISMISSED B Y LEARNED CIT(A) AS BEING INFRUCTUOUS, VIDE RECTIFICATION ORD ERS DATED 09- ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 8 10-2015 PASSED BY LEARNED CIT(A) RECTIFYING APPELLA TE ORDERS DATED 13-08-2015. 5. AGGRIEVED BY THE RECTIFIED APPELLATE ORDER DATED 09-10-2015 PASSED BY LEARNED CIT(A), REVENUE HAS COME IN APPEA L BEFORE THE TRIBUNAL . IT IS THE CONTENTION OF THE LD. DR THAT ASSESSEE CL AIMED DEDUCTIONS U/S. 80IC WHEREIN EXPORT INCENTIVES WERE ALSO CONSIDERED PART OF THE PROFITS ELIGIBLE FOR DEDUCTI ON U/S. 80IC WHICH IS IN CONTRAVENTION OF HON BLE SUPREME COURT DECISION IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA). IT WAS SUBMITTED THAT IN THE ASSESSMENT YEAR 2007-08, TRIBUNAL HAS A LLOWED THE APPEAL OF THE ASSESSEE IN ITA NO.2036/MUM/2013 VIDE ORDERS DATED 22.08.2014 IN ASSESSEE OWN CASE WHEREIN THE R EOPENING WAS HELD TO BE BAD IN LAW. IT WAS SUBMITTED THAT RE -OPENING U/S 147 FOR THE IMPUGNED ASSESSMENT YEAR WAS DONE WITHI N 4 YEARS OF THE END OF THE ASSESSMENT YEAR AND THERE WAS A D ECISION OF HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LTD. (SUPRA) DATED 31.08.2009 WHEREIN HON BLE SUPREME COURT HAD HELD THAT EXPORT INCENTIVES WILL NOT BE CONSIDERED WHILE COMPUTING ELIGIBLE PROFITS FOR COMPUTING DEDUCTION U/S. 80IB AS EXPORT INCENTIVES SUCH AS DUTY DRAW BACK AND DEPB ARISE FR OM THE SCHEME FRAMED BY GOI AND NOT DERIVED FROM THE ELIGI BLE INDUSTRIAL UNDERTAKING. IT WAS SUBMITTED THAT THE A SSESSEE FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YE AR ONLY ON 30.09.2009 WHICH IS AFTER THE PRONOUNCEMENT OF JUDG MENT BY HON BLE SUPREME COURT IN LIBERTY INDIA LIMITED(SUPRA) W HICH WAS DELIVERED ON 31- 08-2009 WHICH WAS PRIOR TO THE FILING TO THE RETURN OF INCOME ON 30-09-2009. IT WAS SUBMITTE D THAT CLAIM OF THE ASSESSEE WAS EX-FACIE WRONG AND HENCE A.O CA NNOT FORM ANY OPINION DURING THE COURSE OF ASSESSMENT PROCEED INGS U/S. 143(3) WHICH IS CONTRARY TO THE DECISION OF THE HON BLE SUPREME COURT WHICH IS LAW OF THE LAND BINDING ON A LL AUTHORITIES. HE ALSO RELIED OF THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF ECGC OF INDIA LIMITED V. ADDL. CIT R, W.P. 502 OF 2012 ORDER DATED 10-01-2013 AND ALSO DE CISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAWAND SONS, LUDHIANA IN ITA NO. 479 OF 2009, ORDER S DATED ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 9 18-11-2009 , TO CONTEND THAT REOPENING OF THE ASSES SMENT U/S 147 IN THE INSTANT CASE WAS VALID. LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND HAS VEHEMENTLY ARGUED THAT THERE IS A CHANGE OF OPINION OF THE A.O WHILE THE AO CANNOT BE ALLOWED TO CHANGE HIS OPINION AS ALL T HE FACTS WERE DECLARED AND DISCLOSED IN THE RETURN OF INCOME FILED WITH THE REVENUE. OUR ATTENTION WAS DRAWN TO PAGE NO. 90 /PB WHEREIN LETTER DATED 29-09-2009 IS PLACED WHICH WAS SUBMITTED BY THE ASSESSEE ALONG WITH RETURN OF INCOME FILED W ITH REVENUE WHEREIN AT PAGE 96/PB THE ASSESSEE HAS DULY GIVEN E XPLANATION ABOUT DEDUCTION CLAIMED U/S 80IC . IN THE SAID LETT ER DATED 29- 09-2009, IT WAS MADE CLEAR THAT EXPORT BENEFITS ARE DULY CONSIDERED WHILE COMPUTING PROFITS CONSIDERED ELIGI BLE FOR DEDUCTION U/S 80IC. OUR ATTENTION WAS ALSO DRAWN TO REPLY DATED 12.12.2011 WHICH IS PLACED IN PAPER BOOK/ PAG E NO.6 WHICH WAS GIVEN BEFORE THE AO DURING ORIGINAL ASSES SMENT PROCEEDINGS CONDUCTED BY THE AO U/S 143(3) R.W.S. 1 43(2), WHEREIN SPECIFIC QUERY WAS RAISED BY THE A.O WITH R ESPECT TO THE CLAIM OF DEDUCTION U/S. 80IC W.R.T. OTHER INCOME S BUT NO SPECIFIC QUERY WAS RAISED BY THE AO WITH RESPECT TO EXPORT BENEFITS BEING CONSIDERED FOR COMPUTING PROFITS ELI GIBLE FOR DEDUCTION U/S 80IC , AND THE ASSESSEE REPLIED THAT OTHER INCOMES SHALL BE INCLUDED FOR COMPUTING DEDUCTION U/S 80IC BY REFERRING TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT V. ELTEK SGS PRIVATE LIMITED 169 TAXMANN 283 AND AL SO DECISION OF DELHI ITAT IN THE CASE OF NODI EXPORTS V. ACIT REPORTED IN 2008 24 SOT 526. IT WAS SUBMITTED THAT NO SPECIFIC QUERY W.R.T. EXPORT BENEFITS WAS RAISED BY THE AO D URING ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 1 43(2). IT WAS FAIRLY AGREED BY LD. COUNSEL FOR THE ASSESSEE THAT DATE OF JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LTD.(SUPRA) WAS DATED 31.08.2009 , WHILE RETU RN OF INCOME WAS FILED LATER ON 30.09.2009 AND CLAIM OF DEDUCTIO N U/S. 80IC WHEREIN EXPORT INCENTIVES WAS INCLUDED FOR COMPUTIN G PROFITS ELIGIBLE FOR DEDUCTION U/S 80IC IS AGAINST THE SAID SUPREME COURT JUDGEMENT WHICH WAS VERY MUCH IN FORCE AT THE TIME OF FILING OF RETURN OF INCOME WITH THE REVENUE. IT IS ALSO SUBMITTED ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 10 THAT REOPENING OF THE CONCLUDED ASSESSMENT U/S 147 WAS DONE BY REVENUE WITHIN 4 YEARS. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGE NO. 101 TO 118 OF PAPER BOOK WHEREIN THE TAX AUDITOR CERTIFICATE DATED 29-09- 20 09 IS PLACED FOR DETERMINE THE AMOUNT ELIGIBLE FOR DEDUCTION U/S 80IC AND EXPORT BENEFITS WERE INCLUDED BY THE AUDITORS FOR T HE PURPOSE OF COMPUTING DEDUCTION U/S. 80IC IN CERTIFICATE IN FOR M NO 10CCB. OUR ATTENTION WAS ALSO DRAWN TO DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. ARONY COMMERCIAL L TD. (2017) 393 ITR 673(BOM. HC) , WHEREIN IT WAS HELD THAT CHA NGE OF OPINION OF THE A.O CANNOT BE A GROUND FOR REOPENING IF THE QUERY IS RAISED DURING THE ASSESSMENT PROCEEDINGS A ND THE ASSESSEE REPLIED TO IT WHICH MEANS THAT IT WAS SUBJ ECT OF CONSIDERATION BY THE A.O WHILE COMPLETING ORIGINAL ASSESSMENT. HE ALSO RELIED UPON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF ICICI BANK V. DCIT(2012) 65 DT R 249 2012 . THE LEARNED COUNSEL FOR THE ASSESSEE ALSO RE LIED UPON THE SECOND PROVISO TO SECTION 147 AND IT WAS SUBMITTED THAT THE ORIGINAL ASSESSMENT ORDER OF THE A.O GOT MERGED WIT H THE APPELLATE ORDER OF LEARNED CIT( A) AND NOW THE ORIG INAL ASSESSMENT ORDER CANNOT BE SUBJECT TO REOPENING U/S 147. HE ALSO RELIED UPON THE DECISION OF HON BLE HIGH COURT OF GUJARAT IN THE CASE OF UNITED PHOSPHORUS LTD VS. ADDL. CIT REPORTED IN (2011) 56 DTR 0193(GUJ. HC). IT WAS SUBMITTED THAT IN ORIGINAL ASSESSMENT , THE DEDUCTION U/S 80IC WAS DENIED SO F AR AS OTHER INCOME WERE CONCERNED EXCLUDING EXPORT BENEFITS, WH ICH WERE NOT INCLUDED FOR GRANTING DEDUCTION U/S 80IC WHICH MATTER TRAVELLED TO THE LEARNED CIT(A). OUR ATTENTION WAS DRAWN TO PAGE 70/PB WHEREIN APPELLATE ORDER OF LEARNED CIT(A ) DATED 02-01-2013 IS PLACED AND HENCE IT IS SUBMITTED THAT ISSUE OF 80IC WAS VERY MUCH BEFORE THE AO WHEREIN HE DENIED INCLUSION OF OTHER INCOME ( EXCLUDING EXPORT BENEFITS) FOR CO MPUTING PROFITS ELIGIBLE FOR DEDUCTION U/S 80IC AND SINCE T HE MATTER TRAVELLED TO LEARNED CIT(A) , THE ORIGINAL ASSESSME NT ORDER U/S 143(3) GOT MERGED WITH LEARNED CIT(A) ORDER AND HEN CE NOW THE ORIGINAL ASSESSMENT ORDER CANNOT BE SUBJECT MAT TER OF ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 11 REOPENING U/S 147 AND HENCE THE ENTIRE PROCEEDINGS ARE BAD IN LAW. LD. DR IN THE REJOINDER OBJECTED TO THE ASSESSEE RA ISING THIS CONTENTION BEFORE THE TRIBUNAL FOR THE FIRST TIME A S IT WAS NOT RAISED BEFORE THE LEARNED CIT(A) THAT THE A.O ORIGI NAL ASSESSMENT ORDER GOT MERGED WITH THE APPELLATE ORDE R OF LEARNED CIT(A) AND SECOND PROVISO TO SECTION 147 IS ATTRACTED AS THIS GROUND IS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL . LD. AR SUBMITTED THAT LEARNED CIT(A) DELETED THE AD DITIONS BY HOLDING THAT REOPENING OF CONCLUDED ASSESSMENT U/S 147 WAS BAD IN LAW AND THE ASSESSEE CAN ALWAYS SUPPORT THE APPELLATE ORDER OF LEARNED CIT(A). 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING ORDERS OF AUTHORITIES BELOW AND CITED CASE LAWS. WE HAVE OBSERVED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF TEXTILE, CEMENT , CHEMICAL, POWER GENERATION ETC. . THE DISPUTE BETWEEN RIVAL P ARTIES IS IN VERY NARROW COMPASS . THE ASSESSEE HAS CLAIMED DEDU CTION U/S. 80IC WITH RESPECT TO CENTURY PULP AND PAPER DIVISIO N ENGAGED IN MANUFACTURING / PRODUCTION OF PAPER W.R.T. SUBST ANTIAL EXPANSION UNDERTAKEN BY THE INDUSTRIAL UNIT SITUATE D IN STATE OF UTTARAKHAND DURINGELIGIBLE PERIOD AND WHILE COMPUTI NG DEDUCTION U/S 80IC , THE ASSESSEE HAS INCLUDED EXPO RT BENEFITS SUCH AS DUTY DRAW BACK/ DEPB AMOUNTING TO RS. 2,36, 32,653/- TO COMPUTE PROFITS ELIGIBLE FOR DEDUCTION U/S 80IC BEING DERIVED FROM THE AFORESTATED INDUSTRIAL UNDERTAKING , WHICH WAS ALLOWED BY THE A.O IN THE ORIGINAL ASSESSMENT ORDER DATED 2 6-12-2011 FRAMED U/S. 143(3) OF THE ACT. THE AO EXCLUDED CERT AIN OTHER HEADS OF OTHER INCOME SUCH AS RENT, SALE OF SCRAP, INSURANCE CLAIM , PROVISIONS NO LONGER REQUIRED ETC BUT EXPOR T BENEFITS WERE NOT EXCLUDED WHILE COMPUTING PROFITS ELIGIBLE FOR DEDUCTION U/S 80IC BEING DERIVED FROM THE AFORESTAT ED INDUSTRIAL UNDERTAKING , WHILE FRAMING ORIGINAL ASS ESSMENT U/S 143(3). IN-FACT , THE AO QUERY DURING THE ORIGINAL ASSESSMENT PROCEEDINGS WERE NEVER DIRECTED TOWARDS THE EXCLUSI ON OF EXPORT BENEFITS WHILE COMPUTING ELIGIBLE PROFITS FO R COMPUTING DEDUCTION U/S 80IC WHILE THE QUERY ITSELF WAS DIREC TED TOWARDS ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 12 EXCLUSION OF OTHER INCOMES SUCH AS RENT, SALE OF SC RAP, INSURANCE CLAIM , PROVISIONS NO LONGER REQUIRED ETC . THIS CLAIM OF DEDUCTION U/S. 80IC BY INCLUSION OF EXPORT BENEF ITS FOR COMPUTING PROFITS ELIGIBLE FOR DEDUCTION U/S 80IC I S EX-FACIE WRONG CLAIM SETUP BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITH THE REVENUE ON 30.09.2009 , WHILE HON BLE SUPREME COURT DECISION IN THE CASE OF LIBERTY INDIA LTD.(SUPRA) W AS PRONOUNCED ON 31.08.2009 WHICH IS DATE PRIOR TO THE DATE OF FILING OF RETURN OF INCOME BY THE ASSESSEE ON 30-09 -2009 , WHEREIN HON BLE SUPREME COURT VIDE JUDGMENT DATED 31- 08- 2009 HAS CATEGORICALLY HELD THAT EXPORT BENEFITS SU CH AS DUTY DRAWBACK AND DEPB ARISE FROM THE SCHEMES FRAMED BY GOI AND ARE NOT PROFITS DERIVED FROM THE INDUSTRIAL UND ERTAKING ELIGIBLE FOR TAX HOLIDAY UNDER THE PROVISIONS OF SE CTION 80IB OF THE 1961 ACT.THE LAW DECLARED BY HON BLE SUPREME COURT IS BINDING ON ALL AUTHORITIES IN THE TERRITORY OF UNIO N OF INDIA AND THE ASSESSEE AS WELL THE AO WAS BOUND TO FOLLOW THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA) WHICH WAS VERY MUCH OPERATIVE IN FOR CE ON THE DATE OF FILING OF THE RETURN OF INCOME ON 30-09-200 9. THE TAX- AUDITORS COULD NOT HAVE GIVEN ANY OPINION IN TAX-AU DIT REPORT VIDE FORM NO 10CCB ON 29-09-2009 WHICH IS CONTRARY TO THE BINDING DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA) PRONOUNCED ON 31-08-20 09. THE AO COULD NOT HAVE FORMED ANY OPINION WHILE FRAMING ASSESSMENT U/S 143(3) AGAINST THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA) A ND ANY SUCH OPINION IF AT ALL FORMED CONTRARY TO HON BLE SUPREME COURT DECISION IS BAD IN LAW AND IS NON-EST. THUS IN THE TEETH OF HON BLE SUPREME COURT JUDGEMENT IN LIBERTY INDIA LIMITED(SUPRA) PRONOUNCED ON 31-08-2009 WHICH WAS E XISTING ON THE DATE OF FILING OF RETURN OF INCOME BY THE AS SESSEE ON 30- 09- 2009, THE CLAIM OF THE ASSESSEE IN THE RETURN O F INCOME FILED WITH THE REVENUE FOR CLAIMING 80IC DEDUCTION WHEREI N EXPORT BENEFITS WERE INCLUDED FOR COMPUTING ELIGIBLE PROFI TS FOR COMPUTING DEDUCTION U/S 80IC , WAS EXFACIE WRONG CL AIM QUA EXPORT BENEFITS HAVING NO FORCE OF LAW AS THE SAME WAS CONTRARY ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 13 TO THE DECISION OF THE HON BLE SUPREME COURT . WE ARE EQUALLY BOUND BY THE LAW DECLARED BY HON BLE SUPREME COURT AND WE ARE NOT ENTITLED TO FORM ANY OPINION WHICH IS CONTR ARY TO THE DECISION OF THE HON BLE SUPREME COURT AND ANY SUCH OPINION IF AT ALL FORMED IS BAD IN LAW HAVING NO FORCE OF LAW. ANY SUCH OPINION FORMED AGAINST THE DECISION OF HON BLE SUPREME COURT DECISION WILL BE BAD IN LAW , NON-EST OPINION HAVIN G NO FORCE OF LAW AND QUESTION OF CHANGE OF OPINION DOES NOT ARIS E IN SUCH SITUATION . THUS, THE CONTENTION OF THE ASSESSEE TH AT THERE IS A CHANGE OF OPINION BY THE AO VIDE REOPENING OF THE C ONCLUDED ASSESSMENT BY INVOKING PROVISION OF SECTION 147 IN THE INSTANT CASE WILL NOT FALL UNDER THE AMBIT OF CHANGE OF OPI NION AS THE AO DID NOT AND COULD NOT HAVE FORMED ANY OPINION CO NTRARY TO THE BINDING DECISION OF HON BLE SUPREME COURT AND ANY SUCH OPINION EVEN IF FORMED BY THE AO IS NON-EST, BAD IN LAW HAVING NO FORCE OF LAW, HENCE REOPENING OF THE CONCLUDED A SSESSMENT BY THE AO IN THE INSTANT CASE U/S. 147 IS PERFECTLY VALID BEING IN ACCORDANCE WITH LAW AND IS THEREFORE UPHELD AS INCO ME HAVING ESCAPED ASSESSMENT DUE TO CLAIM OF DEDUCTION U/S 80 IC QUA EXPORT BENEFITS WAS WRONGLY ALLOWED BY THE AO IN TH E ORIGINAL ASSESSMENT FRAMED U/S 143(3) DIRECTLY IN CONTRAVENT ION OF THE BINDING RATIO OF LAW LAID DOWN BY HON BLE SUPREME COURT IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA) . ON MERIT S, THE HON BLE SUPREME COURT HAS ALREADY DECIDED THE ISSUE IN LIBERTY INDIA LIMITED (SUPRA) AND THE ISSUE IS NO M ORE RESINTEGRA AS DECISION OF THE HON BLE SUPREME COURT IN CASE OF LIBERTY INDIA LIMITED(SUPRA) IS BINDING AND EXPORT INCENTIVES IN THE INSTANT CASE TO THE TUNE OF 2.36 CRORES CANNOT BE INCLUDED UNDER ANY CIRCUMSTANCES FOR COMPUTING ELIGIBLE PROF ITS DERIVED FROM INDUSTRIAL UNDERTAKING FOR COMPUTING DEDUCTION U/S. 80IC . THE ASSESSEE HAS ALSO CONTENDED THAT VIDE PROVISO 2 TO SECTION 147 , THE CONCLUDED ASSESSMENT COULD NOT BE RE-OPEN ED AS THE ISSUE REGARDING DEDUCTION U/S 80IC WAS SUBJECT MATT ER OF APPEAL BEFORE LEARNED CIT(A) AND HENCE ORIGINAL ASS ESSMENT ORDER OF THE AO STOOD MERGED WITH APPELLATE ORDER O F LEARNED CIT(A).THUS, IT IS CONTENDED THAT THE SAID ASSESSME NT ORDER DOES NOT HAVE ANY SEPARATE EXISTENCE AS IT GOT MERGED WI TH APPELLATE ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 14 ORDER OF LEARNED CIT(A) AND HENCE COULD NOT BE SUBJ ECT MATTER OF REOPENING PROCEEDINGS U/S 147 OF THE ACT. THE AS SESSEE HAS PLACED RELIANCE ON DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF UNITED PHOSPHROUS LIMITED (SUPRA) AND H ON BLE BOMBAY HIGH COURT IN THE CASE OF ICICI BANK LIMITED (SUPRA). WE HAVE CAREFULLY GONE THROUGH THE ABOVE DECISIONS AS WELL PROVISIONS OF THE 1961 ACT. WE HAVE OBSERVED THAT T HE AO NEVER RAISED ANY QUERY W.R.T. EXCISE BENEFIT FORMING PART OF THE ELIGIBLE PROFIT DERIVED FROM INDUSTRIAL UNDERTAKING FOR COMP UTING DEDUCTION U/S 80IC OF THE 1961 ACT. WE HAVE OBSERVE D THAT THE AO EXCLUDED OTHER INCOMES SUCH AS RENT, SURPLUS ON SALE OF ASSETS, SALE OF SCRAPS , INSURANCE CLAIMS, PROVISIO NS NO LONGER REQUIRED ETC AMOUNTING TO RS. 9,56,18,376/- WHILE C OMPUTING DEDUCTION U/S 80IC IN ORIGINAL ASSESSMENT FRAMED U/ S 143(3), WHILE EXPORT BENEFITS TO THE TUNE OF RS. 2,36,32,65 3/- WHICH ALBEIT FORMED PART OF OTHER INCOME DISCLOSED IN AUD ITED FINANCIAL STATEMENTS WERE NEVER BEING QUERIED BY TH E AO FOR COMPUTING DEDUCTIONS U/S 80IC ALTHOUGH THE ASSESSEE MADE DISCLOSURE THAT THE SAME WAS ALSO INCLUDED WHILE CO MPUTING DEDUCTION U/S 80IC, WHICH CLEARLY MEAN THAT THE AO ALLOWED THE SAME TO BE INCLUDED WHILE COMPUTING ELIGIBLE PROFIT S DERIVED FROM INDUSTRIAL UNDERTAKING FOR COMPUTING DEDUCTION U/S 80IC IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3) R .W.S. 143(2). THE EXPORT BENEFITS WERE ALLOWED BY THE AO TO BE IN CLUDED FOR COMPUTING ELIGIBLE PROFITS DERIVED FROM THE INDUSTR IAL UNDERTAKING FOR DETERMINING DEDUCTION U/S 80IC DESP ITE THE FACT THAT THE AO COULD NOT HAVE ALLOWED THE SAME DUE TO HON BLE SUPREME COURT DECISION TO THE CONTRARY IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA). THUS, THE ISSUE OF COMPUTING DEDUCTION U/S 80IC QUA INCLUSION OF OTHER INCOME SUCH AS RENT , SURPLUS ON SALE OF ASSETS, SALE OF SCRAPS , INSURANCE CLAIMS, PROVISIONS NO LONGER REQUIRED ETC TO THE TUNE OF RS. 9,56,18,376/ - WAS SUBJECT MATTER OF APPEAL BEFORE LEARNED CIT(A) AND IS HIT B Y THE SECOND PROVISO TO SECTION 147 WHICH COULD NOT HAVE BEEN RE -OPENED BY THE AO U/S 147 AS THE ASSESSMENT ORDER STOOD MERGED WITH THE APPELLATE ORDER OF LEARNED CIT(A), BUT TO SAY THAT LEARNED CIT(A) IS SEIZED OF THE MATTER W.R.T. DETERMINING T HE CONTROVERSY ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 15 AS TO THE INCLUSION OF EXPORT BENEFITS TO THE TUNE OF RS. 2,36,32,653/- FOR COMPUTING ELIGIBLE PROFITS DERIVE D FROM THE INDUSTRIAL UNDERTAKING FOR COMPUTING DEDUCTION U/S 80IC IS FALLACIOUS AND TO CONTEND THAT THE ASSESSMENT ORDER ORIGINALLY FRAMED U/S 143(3) CANNOT BE NOW SUBJECT TO RE-ASSES SMENT PROCEEDINGS U/S 147 DESPITE THE INCOME HAVING ESCAP ED ASSESSMENT IN LIGHT OF HON BLE SUPREME COURT DECISION IN THE CASE OF LIBERTY INDIA LIMITED(SUPRA) IS NOT ACCEPTA BLE AND IS HEREBY REJECTED AS LEARNED CIT(A) WAS NEVER SEIZED OF THIS CONTROVERSY. THUS, WE UPHOLD RE-ASSESSMENT ORDER PA SSED BY THE AO DATED 30-01-2014 U/S 143(3) AND 147 OF THE 1961 ACT BOTH ON MERITS AS WELL ON LEGAL GROUND CONCERNING VALIDI TY OF RE- OPENING OF THE CONCLUDED ASSESSMENT U/S 147 AND WE HAVE NO HESITATION IN SETTING ASIDE THE APPELLATE ORDER DAT ED 09-10-2015 PASSED BY LEARNED CIT(A) WHICH WAS AN ORDER OF RECT IFICATION RECTIFYING APPELLATE ORDER DATED 13-08-2015 PASSED BY LEARNED CIT(A). HENCE, UNDER THIS FACTUAL MATRIX OF THE CAS E , WE ALLOW THE APPEAL OF REVENUE AND HOLD THAT EXPORT INCENTIV E TO THE TUNE OF 2,36,32,653/- SHALL NOT BE INCLUDED FOR THE PURP OSES OF COMPUTING ELIGIBLE PROFITS DERIVED FROM THE INDUSTR IAL UNDERTAKING FOR COMPUTING DEDUCTION U/S. 80IC OF TH E ACT. THE REVENUE SUCCEEDS IN THIS APPEAL. WE ORDER ACCORDING LY. 7. IN THE RESULT APPEAL OF THE REVENUE IN ITA 5739/ MUM/2015 FOR ASSESSMENT YEAR 2009-10 IS ALLOWED. 2.2. WE FIND THAT THE TRIBUNAL ON QUANTUM ADDITION DECIDED AGAINST THE ASSESSEE AND THE PRESENT APPEAL U/S 271(1)(C) IS OFFSHOOT OF THE QUANTUM ADDITION, THUS , IN ALL FAIRNESS, WE DEEM IT APPROPRIATE, TO REMAND THIS AP PEAL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APP EAL) TO ADJUDICATE THE ISSUE AFRESH, CONSIDERING THE AFORES AID DECISION OF THE TRIBUNAL. THE ASSESSEE BE GIVEN OPP ORTUNITY ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 16 OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVID ENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THUS, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 27/12/2017. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER $ MUMBAI; ( DATED : 27/12/2017 F{X~{T? P.S / /. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE ASSESSEE. 3. 0 0 1# ( *+ ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI, 5. 34 .# , 0 *+& * 5 , $ / DR, ITAT, MUMBAI 6. 6! 7$ / GUARD FILE. ! / BY ORDER, /3+# .# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI ITA NO. 643/MUM/2016 M/S CENTURY TEXTILES & INDUSTRIES LTD. 17 THIS ORDER WAS DIRECTLY DICTATED TO THE SR.PS/PS ON COMPUTER 1. DRAFT DICTATED ON 27/12/17 SR.PS /PS 2. DRAFT PLACED BEFORE AUTHOR 27/12/17 SR.PS /PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 27/12/17 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS /PS 6. DATE OF PRONOUNCEMENT/ORDER SR.PS /PS 7. FILE SENT TO THE BENCH CLERK SR.PS /PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER