Shri Ayush M.Agarwal, Surat V. The ACIT.,Circle-2, Surat

ITA 891/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9107 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-02-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 01-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Keywords: Period of limitation; Condonation of delay
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 80HHC; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) ITA. NO: 891/AHD/2013 (ASSESSMENT YEAR: 2003-04) SHRI AYUSH M. AGARWAL 102, PLATINUM APT., BRIJWASI ESTATE, NEAR GATEWAY HOTEL, PARLE POINT, SURAT- 395007 V/S ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-2, SURAT (APPELLANT) (RESPONDENT) PAN: ACYPA9649K APPELLANT BY : SHRI MEHUL SHAH, AR RESPONDENT BY : SHRI ALBINUS TIRKEY, SR. D.R . ( )/ ORDER DATE OF HEARING : 08 -02-201 7 DATE OF PRONOUNCEMENT : 13 -02-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- II, AHMEDABAD DATED 02.08.2010 PERTAINING TO A.Y. 2 003-04. ITA NO. 891/ AHD/2013 . A.Y. 2003-04 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN MAKING ADDITION OF RS. 5, 03,747/- ON ACCOUNT OF DEDUCTION U/S. 80HHC OF THE ACT. 3. THE APPEAL IS LATE BY 856 DAYS. WE HAVE CAREFULLY P ERUSED THE APPLICATION FOR THE CONDONATION OF DELAY IN FILING OF THE APPEA L SUPPORTED BY AN AFFIDAVIT. WE FIND THAT WHEN THE ASSESSMENT WAS MAD E AND DEDUCTION U/S. 80HHC WHEN WAS DENIED TO THE EXTENT OF RS. 5,03,747 /-, THERE WERE CONFLICTING JUDICIAL DECISIONS WHETHER THE PROFIT O N SALE OF DEPB IS REQUIRED TO BE EXCLUDED FROM PURVIEW OF SECTION 80HHC OR THE ENTIRE SALE CONSIDERATION HAS TO BE EXCLUDED. BECAUSE OF THE CO NFLICTING DECISIONS, THE ASSESSEE ACCEPTED THE ORDER OF THE FIRST APPELLATE AUTHORITY. NOW, THAT THIS ISSUE HAS BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS 342 ITR 49, THE ASSESSEE HAS PREFERRED THE APPEAL LATE BY 856 DAYS. 4. IN OUR CONSIDERED OPINION, THE ASSESSEE WAS PREVENT ED BY REASONABLE AND SUFFICIENT CAUSE FOR NOT PREFERRING THE APPEAL WITH IN THE PERIOD OF LIMITATION. THE DELAY IS ACCORDINGLY CONDONED. 5. WE FIND THAT THE A.O. HAS COMPUTED THE DEDUCTION U/ S. 80HHC AS UNDER:- DESCRIPTION (IN RS.) EXPORT TURNOVER 13,52,91,004 LESS ACTUAL DIRECT COSTS OF GOODS EXPORTED 205387765 (DIRECT COSTS OF GOODS EXPORTED + 186627053 REFUNDS THROUGH DEPB) 18760712 ITA NO. 891/ AHD/2013 . A.Y. 2003-04 3 CLOSING STOCK OF FINISHED GOODS 676940 ADJUSTMENTS U/S 145A 50192 206114897 LESS INDIRECT COSTS ATTRIBUTABLE TO GOODS EXPORTED 2106854 ADJ. PROFIT OF TRADING GOODS -729307 47 TOTAL ELIGIBLE DEDUCTIONS U/S. 80HHC NIL 6. THE A.O. ACCORDINGLY DENIED THE CLAIM OF DEDUCTION U/S. 80HHC OF THE ACT AT RS. 5,03,747/- WHICH WAS CONFIRMED BY THE LD. CIT(A ). 7. NOW, THAT THE ISSUE HAS BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA), IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILES OF THE A.O. THE A. O. IS DIRECTED TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 13 - 02- 20 17 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 13 /02/2017 RAJESH COPY OF THE ORDER FORWARDED TO: -