OPERA CLOTHING, MUMBAI V. A.C.I.T.18(1), MUMBAI

ITA 7538/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78853 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Assessee Lawyers: RAHUL K KAKANI
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C , MUMBAI BEFORE SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 7538/M/2011 ASSESSMENT YEAR: 2008 - 09 M/S. OPERA CLOTHING 2 & 4, SHAH & NAHAR INDUSTRIAL ESTATE, S .J. MARG, LOWER PAREL, MUMBAI 400 013 PAN: AABFO 4522H VS. ACIT 18(1) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAHUL K. KAKANI, A.R. REVENUE BY : SMT. PARMINDER, D.R. DATE OF HEAR ING : 08.05 .201 4 DATE OF PRONOUNCEMENT : 08.05.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] DATE D 09.09.11. 2. THE ASSESSEE IN ITS MAIN/ORIGINAL GROUND OF APPEAL HAS AGITATED THE EXCLUSION OF DUTY DRAWBACK OF RS.3,16,92,409/ - FOR DEDUCTION UNDER SECTION 80IB. 3. HOWEVER, THE ASSESSEE VIDE LETTER DATED 12.01.13 HAS RAISED THE FOLLOWING ADDITIONA L GROUND: THE LEARNED CIT(A) AND ASSESSING OFFICER FAILED TO APPRECIATE THAT IF DRAWBACK OF RS.3,16,92,409/ - IS TREATED AS NOT EXEMPT U/S. 80IB ONLY THE NET DRAWBACK INCOME MAY BE TAXED. ITA NO. 7538/M/2011 M/S. OPERA CLOTHING 2 4. THE ASSESSEE FURTHER VIDE LETTER DATED 11.07.13 HAS RAISED ANO THER ADDITIONAL GROUND WHICH READS AS UNDER: THE LEARNED CIT(A) AND ASSESSING OFFICER FAILED TO APPRECIATE THAT DRAWBACK OF RS.3,16,92,409/ - BEING REIMBURSEMENT OF DUTY PAID ON PURCHASE OF RAW MATERIALS MAY BE REDUCED FROM THE MATERIAL COST. 5. SO FAR THE MAIN/ORIGINAL GROUND OF APPEAL IS CONCERNED, THE LD. CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE FOLLOWING THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT 317 ITR 218 SC WHEREIN THE HONBLE SUPREME COURT HAS CONCLUDED THAT THE DUTY DRAWBACK AND THE OTHER EXPORT INCENTIVES CANNOT BE SAID TO BE INCOME DERIVED FROM INDUSTRIAL UNDERTAKING AND HENCE ARE NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB. WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN T HIS REGARD . SO FAR THE ADDITIONAL GROUNDS RAISED VIDE LETTERS DATED 12.01.13 AND 11.07.13 RESPECTIVELY ARE CONCERNED, THE LD. A.R. HAS STATED THAT THESE GROUNDS HAVE BEEN RAISED BY THE ASSESSEE FOR THE FIRST TIME ONLY BEFORE THE TRIBUNAL AND THESE GROUN DS WERE NOT RAISED BEFORE THE LD. CIT(A). HE HAS FURTHER SUBMITTED THAT THE MATTER BE REMANDED BACK TO THE LD. CIT(A) FOR ADJUDICATION ON THE ABOVE ADDITIONAL GROUNDS. LD. D.R. HAS ALSO ADMITTED THAT THE CLAIM RAISED BY THE ASSESSEE VIDE ABOVE ADDITIONAL GROUNDS HA S NOT BEEN ADJUDICATED BY THE LD. CIT(A). 6. IN VIEW OF THE SUBMISSIONS MADE BY THE LD. REPRESENTATIVES OF THE PARTIES , THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE ISSUES RAISED BY THE ASSESSEE V IDE ITS ADDITIONAL GROUNDS OF APPEAL AS REPRODUCED ABOVE. NEEDLESS TO SAY THE LD. CIT(A) WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. ITA NO. 7538/M/2011 M/S. OPERA CLOTHING 3 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08.05. 201 4 . SD/ - SD/ - ( N. K. BILLAIYA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED : 13.05. 201 4 . * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.