GEMINI INTERNATIONAL P.LTD, MUMBAI V. ITO 9(1)-4, MUMBAI

ITA 8804/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79170 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 11-06-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CAPT PRADEEP ARYA
• Keywords: Assessment record
• Section: 143(3); 80HHC; 263; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI . , !'# $ $ $ $ , %& '()* , %+ ,- % # BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ I.T.A. NOS.8804 TO 8806/MUM/2010 ( . . . . / ASSESSMENT YEARS :2001-02 TO 2003-04 A N D ./ I.T.A. NO.8769/MUM/2010 ( . . . . / ASSESSMENT YEAR :2000-01 M/S. GEMINI INTERNATIONAL PVT. LTD., M.G. ROAD NO. 1, POWELLS LAND, PLOT NO. 1&2, 1 ST FLOOR, BMC INDUSTRIAL ESTATE, KANDIVALI (W), MUMBAI-400 067 / VS. THE ITO 9(1)(4), AAYAKAR BHAVAN, MUMBAI-400 020 -/ %+ ./ 0 ./ PAN/GIR NO. : AABCG 1311P ( /1 / APPELLANT ) .. ( 23/1 / RESPONDENT ) /1 4 % / APPELLANT BY: SHRI VIPUL JOSHI 23/1 5 4 % / RESPONDENT BY: CAPT. PRADEEP ARYA 5 6+ / DATE OF HEARING :18.06.2014 7. 5 6+ / DATE OF PRONOUNCEMENT :18.06.2014 ,%8 / O R D E R PER N.K. BILLAIYA, AM: THESE FOUR APPEALS BY THE ASSESSEE ARE PREFERRED AG AINST THE ORDER OF THE LD. CIT(A)-19, MUMBAI DT.3.9.2010 PERTAININ G TO A.YRS. 2000-01 M/S. GEMINI INTERNATIONAL PVT. LTD., 2 TO 2003-04. SINCE ALL THESE APPEALS HAVE COMMON GR IEVANCE, THEREFORE THEY ARE DISPOSED OF BY THIS COMMON ORDER FOR THE S AKE OF CONVENIENCE AND BREVITY. 2. THE GRIEVANCES OF THE ASSESSEE READ AS UNDER: 1. THE LEARNED C.I.T. (APPEAL) 19 MUMBAI ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER PASSED U/S 154 OF THE AC T THERE BEING NO MISTAKE APPARENT ON RECORD AS ENVISAGED U/S. 154 OF THE ACT. 2. THE LEARNED C.I.T. (A) 19 MUMBAI ERRED IN LAW AN D ON FACT AND FAILED TO APPRECIATE WHILE UPHOLDING THE ORDER OF A SSESSING OFFICER U/S. 154 THAT THE HONBLE C.I.T.-IX PASSED ORDER U/ S. 263 REVISING THE ORDER COMPLETED U/S. 143(3) R.W.S 147 BY CONSID ERING ALL THE FACTS AND LEGAL POSITIONS. THE HONBLE. I.T.A.T. VI DE ORDER DATED 09.09.2007 HAS SET ASIDE THE ORDER U/S. 263 OF THE ACT PASSED BY THE CIT. HENCE, IT IS CONTENDED THAT AS PER THE PROVISI ONS OF SECTION 154(1A) OF THE ACT, THE MATTER WHICH HAS BEEN CONSI DERED IN APPEAL/REVISION PROCEEDINGS CANNOT BE RECTIFIED U/S . 154 OF THE ACT. 3. THE LEARNED C.I.T. (A) 19 MUMBAI ERRED IN LAW AN D ON FACT AND `FAILED TO APPRECIATE WHILE UPHOLDING THE ORDER OF ASSESSING OFFICER U/S., 154 OF THE ACT THAT THERE BEING CHANGE OF INC UMBENT OF AN OFFICE THE LEARNED ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN NOT ISSUING FRESH NOTICE AND GIVING AN OPPORTUNITY AS CONTEMPLATED U/S. 129 OF THE ACT. IT IS PRAYED THAT ORDER PASSED U/S. 154 OF THE ACT WITHOUT GIVING FRESH OPPORTUNITY U/S. 129 OF THE AC T IS BAD IN LAW & BE QUASHED. 4. WITHOUT PREJUDICE TO ABOVE GROUNDS :- THE LEARNED C.I.T. (A) 19 MUMBAI ERRED IN LAW AND O N FACT AND FAILED TO APPRECIATE WHILE UPHOLDING THE ORDER OF A SSESSING OFFICER U/S. 154 OF THE ACT THAT THE MISTAKE SOUGHT TO BE R ECTIFIED IS NOT ARISING OUT OF ORDER DATED 24.03.2006 PASSED U/S. 1 43(3) R.W.S. 147 OF THE ACT BUT ARISING OUT OF ORDER DATED 20.03.200 2 PASSED U/S. 143(1)OF THE ACT. IT IS THEREFORE CONTENDED THAT TI ME LIMIT OF FOUR YEARS FOR CARRYING OUT RECTIFICATION U/S. 154 HAS E XPIRED WITH REFERENCE TO ORDER U/S. 143(1). HENCE THE ORDER U/S . 154 IS BAD IN LAW AND BE QUASHED. M/S. GEMINI INTERNATIONAL PVT. LTD., 3 3. THE ASSESSEE HAS ALSO RAISED ONE ADDITIONAL GROU ND WHICH READS AS UNDER: WITHOUT PREJUDICE TO THE GROUNDS ALREADY RAISED, I T IS SUBMITTED THAT THE LD. AO ERRED IN NOT COMPUTING TH E DEDUCTION U/S. 80HHC AVAILABLE TO THE APPELLANT IN ACCORDANCE WITH LAW. 4. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE STATED THAT IF THE ADDITIONAL GROUND IS ADMITTED, THEN THE GRIEVAN CE FILED IN OTHER GROUNDS WILL BECOME OTIOSE. 5. BEFORE PROCEEDING FURTHER, LET US UNDERSTAND THE FACTS OF THE CASE. RETURN OF INCOME FOR THE YEARS UNDER CONSIDERATION WAS FILED ON 29.11.2000, 22.10.2001, 28.10.2002 AND 1.12.2003 RE SPECTIVELY. THE RETURN OF INCOME WAS ACCEPTED U/S. 143(1) OF THE AC T VIDE INTIMATION DT. 20.3.2002, 25.11.2002, 17.2.2003 AND 31.3.2004 RESP ECTIVELY. ASSESSMENTS FOR A.Y. 2000-01, 2001-02 AND 2002-03 W ERE REOPENED U/S. 147 OF THE ACT. THE REASONS FOR REOPENING THE ASSES SMENT WAS THAT IF DEPB/DD ARE EXCLUDED, THERE WILL BE LOSS THEREFORE DEDUCTION U/S. 80HHC IS NOT ALLOWABLE. REASSESSMENT WAS COMPLETED VIDE ORDER DT. 24.3.2006 AND FOR A.Y. 2003-04 ASSESSMENT U/S. 143( 3) WAS COMPLETED VIDE ORDER DT. 27.3.2006. 6. THE LD. CIT INVOKING JURISDICTION U/S. 263 OF TH E ACT ISSUED NOTICE FOR ALL FOUR ASSESSMENT YEARS UNDER CONSIDERATION. REASON FOR INITIATION OF PROCEEDINGS U/S. 263 WAS GIVEN AS NON REDUCTION OF FREIGHT AND INSURANCE HAS RESULTED INTO THE ORDER ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF THE REVENUE. ORDER U/S. 263 WAS PASSED FOR ALL THE FOU R ASSESSMENT YEARS VIDE ORDER DT. 21.1.2008. THE ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DT. 9.9.2008 Q UASHED THE 263 PROCEEDINGS. M/S. GEMINI INTERNATIONAL PVT. LTD., 4 7. THE AO ISSUED NOTICE U/S. 154 OF THE ACT FOR ALL THE FOUR ASSESSMENT YEARS. THE REASONS FOR ISSUING NOTICE U /S. 154 WERE GIVEN AS UNDER: IN COMPLETING THE ASSESSMENT, A DEDUCTION OF RS. 25,62,298/- WAS ALLOWED TO ASSESSEE U/S. 80HHC OF T HE ACT. IN ALLOWING THE ABOVE DEDUCTION, THE LOSS FROM EXPORT OF TRADING GOODS AMOUNTING TO RS. 10,02,860/- HAS NOT BEEN SET OFF AGAINST 90% OF PROFIT ON SALE OF DEPB LICENCE AND DUTY DRAW BACK IN THE RATIO OF EXPORT TURNOVER TO TOTAL TURNOVER FOR THE PURPOSE OF COMPUTING DEDUCTION U/S. 80HHC OF THE ACT. FURTHER , ON PERUSAL OF THE ASSESSMENT RECORD IT IS FOUND THAT WHILE COM PUTING DEDUCTION U/S. 80HHC, ASSESSEE HAS NOT CONSIDERED INDIRECT CO ST AMOUNTING TO RS. 1,91,014/- ON ACCOUNT OF CLEARING AND FORWAR DING CHARGES. THIS HAS RESULTED IN ALLOWANCE OF EXCESS DEDUCTION U/S. 80HHC OF THE ACT AMOUNTING TO RS. 10,02,960/- FOR A.Y. 2000- 2001. THE ABOVE MISTAKES ARE APPARENT FROM RECORD. 8. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 9. WITH THIS FACTUAL BACKGROUND, THE ASSESSEE IS BE FORE US. 10. THE CLAIM VIDE ADDITIONAL GROUND OF APPEAL BY T HE ASSESSEE IS THAT THE AO HAS ERRED IN NOT COMPUTING THE DEDUCTION U/S . 80HHC AVAILABLE TO THE ASSESSEE IN ACCORDANCE WITH LAW. 11. HAVING HEARD THE RIVAL SUBMISSIONS, IN OUR CONS IDERED VIEW THE COMPUTATION OF DEDUCTION U/S. 80HHC GOES TO THE ROO T OF THE MATTER AND AFTER CONSIDERING THE ENTIRE FACTUAL MATRIX AS MENT IONED HEREINABOVE, IN OUR CONSIDERATION OPINION, THIS ISSUE NEED FRESH AD JUDICATION. WE, THEREFORE, RESTORE THIS ISSUE BACK TO THE FILE OF T HE AO. THE AO IS DIRECTED TO COMPUTE THE DEDUCTION U/S. 80HHC OF THE ACT AS P ER THE PROVISIONS OF LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. M/S. GEMINI INTERNATIONAL PVT. LTD., 5 12. IN THE RESULT, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ADMITTED AND ALLOWED FOR STATISTICAL PURPOSE. THE O THER GROUNDS BECOME OTIOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 18.6.2014 . ,%8 5 . +% 9 :, ; 18.6.2014 5 < SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) !'# /VICE PRESIDENT %+ ,- / ACCOUNTANT MEMBER MUMBAI; :, DATED 18.6.2014 . . ./ RJ , SR. PS ,%8 ,%8 ,%8 ,%8 5 55 5 26' 26' 26' 26' =%'.6 =%'.6 =%'.6 =%'.6 / COPY OF THE ORDER FORWARDED TO : 1. /1 / THE APPELLANT 2. 23/1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. '?< 26 , , / DR, ITAT, MUMBAI 6. < @ / GUARD FILE. ,%8 ,%8 ,%8 ,%8 / BY ORDER, 3'6 26 //TRUE COPY// ! !! ! / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI