M/s. Mirabelle International, New Delhi V. DCIT, New Delhi

ITA 695/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0089 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 25-03-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH SONKAR SENIOR
• Assessee Lawyers: H P GOEL; CHARU GOEL CAS
• Keywords: Retrospective amendment
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.695/DEL./2010 (ASSESSMENT YEAR : 2001-02) M/S. MIRABELLE INTERNATIONAL, VS. DCIT, CIRCLE 31 (1), 13/13, WINDSOR MANSION, NEW DELHI. JANPATH LANE, NEW DELHI 110 002. (PAN : AABFM1743P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI H.P. GOEL & MS. CHARU GOEL, CAS REVENUE BY : SHRI PEEYUSH SONKAR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF THE ORDER OF CIT (APPEALS)- XXVI, NEW DELHI DATED 29.12.2009. THE GROUND OF AP PEAL TAKEN BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE LEARNED COMMISSIONER OF INCOME - TAX(A )-XXVI IS WRONG IS DETERMINING THE TOTAL INCOME AT RS.2,55,22 ,744. 2. THAT THE LEARNED COMMISSIONER OF INCOME -TAX IS WRONG IS IGNORING ALL MATERIAL FACT AND EVIDENCE PRODUCED BE FORE HIM WHILE COMPUTING THE TOTAL INCOME. 3. THAT THE COMPUTATION OF TOTAL INCOME IS BAD IN L AW AND IS AGAINST THE ACTUAL FACTS AND EVIDENCE ON RECORD. 4. THAT THE LEARNED COMMISSIONER OF INCOME-TAX HAS ERRED IN NOT ALLOWING DEDUCTION U/S 80HHC ON DEPB RECEIPTS. ITA NO.695/DEL./2010 2 5. THAT THE LEARNED COMMISSIONER OF INCOME -TAX HAS ERRED IN, CONSIDERING THE INTEREST RECEIVED ON FIXED DEPOSIT WITH THE BANK SOURCES WHEREOF WAS EXPORT PROCEEDS REALIZED BY THE BANK SEPARATELY AS INCOME FROM OTHER SOURCES, WHICH IS BAD IN LAW A ND IS AGAINST FACTS AND CIRCUMSTANCES OF THE CASE. 6. THAT THE LEARNED COMMISSIONER OF INCOME-TAX HAS GROSSLY ERRED IN NOT NETTING THE INTEREST RECEIPT/PAYMENT A ND THEN ASSESSING THE NET RESULT. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, AMPLIFY OR DELETE ANY OR ALL OF THE GROUNDS OF APPEAL BEFORE O R AT THE TIME OF HEARING. IN ADDITION TO THAT, IN LETTER DATED OCTOBER 29, 20 10, THE ASSESSEE HAS TAKEN FOUR MORE ADDITIONAL GROUNDS WHICH READ AS UNDER :- 8. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE INITIATION OF PROCEEDINGS UNDER SECTION 147/148 OF THE ACT, IS ILLEGAL, BAD IN LAW AND VOID AB INITIO. 9. THAT ORIGINAL ASSESSMENT FOR THE YEAR UNDER APPE AL WAS FRAMED UNDER SECTION 143(3), THEREFORE, ISSUE OF NO TICE AFTER FOUR YEARS FROM THE END OF ASSESSMENT YEAR, MERELY ON TH E BASIS OF SUBSEQUENT RETROSPECTIVE AMENDMENT IN THE ACT (AS D ISCERNABLE FROM ASSESSMENT ORDER ITSELF), IS WITHOUT JURISDICTION A ND VOID AB INITIO. 10. THAT THE ID. CIT(A) IS NOT JUSTIFIED IN DISMISS ING THE APPEAL AFTER HOLDING AS UNDER: '8. I, HOWEVER, OBSERVED THAT THE LEARNED AO HAS NO T COMPUTED DEDUCTION U/S.80HHC IN ACCORDANCE WITH THE PROVISION OF SECTION 80HHC. THE AO IS DIRECTED TO C OMPUTE THE DEDUCTION U/S.80HHC, STRICTLY IN ACCORDANCE WIT H THE SCHEME OF THE PROVISION AS PROVIDED U/S.80HHC.' 11. THAT IRRESPECTIVE OF QUANTUM OF ASSESSMENT THE APPELLANT IS NOT LIABLE FOR INTEREST UNDER SECTION 234A, 234B, 2 34C AND 234D OF THE ACT AND MORE PARTICULARLY THE APPELLANT IS NOT LIABLE FOR INTEREST ON ACCOUNT OF VARIATION IN THE INCOME CONSEQUENT TO THE ENACTMENT OF ITA NO.695/DEL./2010 3 TAXATION LAWS (AMENDMENT) ACT, 2005 ATTRIBUTABLE TO DEPB, IN VIEW OF CIRCULAR NO. 2 OF 2006 DATED 17.1.2006 ISSU ED BY CBDT.' 2. IN GROUND NOS.8 & 9, THE ASSESSEE HAS CHALLENGED THE INITIATION OF PROCEEDINGS U/S 147/148 OF THE INCOME-TAX ACT. THE SE ARE LEGAL GROUNDS AND IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN TH E CASE OF NTPC VS. CIT REPORTED IN 229 ITR 383, THE GROUNDS ARE ADMITTED. 3. SINCE WE HAVE ADMITTED THE ADDITIONAL GROUNDS WH ICH HAS NOT BEEN CONSIDERED BY THE CIT (A) IN ITS ORDER DATED 29.12. 2009, THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, WE SET ASIDE THE ORDER OF THE C IT (A) AND RESTORE THE ISSUES TO THE FILE OF CIT (A) AND ALSO DIRECT TO ADJUDICATE THE A DDITIONAL GROUNDS TAKEN BEFORE US. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF MARCH, 2011 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (RAJPAL YADAV) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 25 TH DAY OF MARCH, 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.