DCIT, Kollam V. M/s. Sobhana Farms P.Ltd, Kollam

ITA 96/COCH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52299 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 21-11-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 08-02-2010
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Assessee Lawyers: A S NARAYANAMURTHY
• Keywords: Retrospective amendment
• Section: 143(3); 80HHC; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S.GANESAN (JM) & SHRI SANJAY ARORA (AM) I.T.A.NO . 96 /COCH/201 0 ASSESSMENT YEAR 1998-99 DY.CIT, CIR.1, KOLLAM VS. M/S SHOBHANA FARMS (P) LTD, SREEVILAS, KILIKOLLOR, KOLLAM (APPELLANT) (RESPONDENT) APPELLANT BY MS VIJAYAPRABHA, JR DR RESPONDENT BY SHRI A.S. NARAYANAMURTHY DATE OF HEARING 2 1 - 11 - 2011 DATE OF PRONOUNCEMENT 09 - 12 - 2011 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 1 4-10-2009 AND PERTAINS TO ASSESSMENT YEAR 1998-99. 2 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS RECTI FICATION OF ASSESSMENT MADE U/S 143(3) WITHDRAWING THE DEDUCTIO N GRANTED U/S 80HHC ON INCOME FROM SALE OF DEPB LICENCE. 3. WE HAVE HEARD THE LD.DR, MS. VIJAYAPRABHA AND SH RI A.S. NARAYANAMURTHY, THE LD.REPRESENTATIVE FOR THE ASSES SEE. 4. DURING THE COURSE OF HEARING, SHRI A.S. NARAYANA MURTHY, THE LD.REPRESENTATIVE FOR THE ASSESSEE VERY FAIRLY CONC EDED THAT THE KERALA HIGH COURT IN AN UNREPORTED DECISION IN THE CASE OF JOHNSON G OOMMEN IN ITA NO.1508 OF 2009 DATED 23-03-2010 FOUN D THAT THE ASSESSING OFFICER CAN VERY WELL RECTIFY THE ORDER O F THE ASSESSMENT ON THE BASIS OF THE TAXATION LAWS AMENDMENT ACT, 2005 WITHDRAWING THE DEDUCTION GRANTED U/S 80HHC IN RESPECT OF DEPB. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THIS TRIBU NAL BY FOLLOWING THE ABOVE REFERRED JUDGMENT OF THE KERALA HIGH COURT HA S ALLOWED SIMILAR APPEAL IN DCIT VS M/S SRINIKETAN TRUST IN ITA NO.95 /COCH/2010 ORDER DATED 21-10-2011. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITI ES. THE COMMISSIONER OF INCOME-TAX(A) BY FOLLOWING THE ORDE RS OF THE TRIBUNAL IN THE CASE OF INDIA FOOD EXPORTS AND IN THE CASE O F JOHNSON G OOMMEN IN ITA NO.463/COCH/2007 FOUND THAT THE ASSES SING OFFICER 3 CANNOT RECTIFY THE ORDER U/S 154 WITHDRAWING THE DE DUCTION GRANTED U/S 80HHC IN RESPECT OF INCOME FROM DEPB. HOWEVER, TH E JURISDICTIONAL HIGH COURT IN THE CASE OF JOHNSON G OOMMEN IN ITA NO.1508 OF 2009 DATED 23-03-2010 REVERSED THE ORDE R OF THIS TRIBUNAL AND HELD THAT THE ASSESSING OFFICER CAN RE CTIFY THE ORDER ON THE BASIS OF THE TAXATION LAWS (AMENDMENT) ACT, 2005 WH ICH WAS INTRODUCED WITH RETROSPECTIVE EFFECT FROM 01-04-199 2. BY FOLLOWING THE ORDER OF THE KERALA HIGH COURT CITED SUPRA, THE TRIBUNAL ALLOWED AN IDENTICAL APPEAL FILED BY THE REVENUE IN M/S SRINIK ETAN TRUST (SUPRA). RESPECTFULLY FOLLOWING THE JUDGMENT OF THE KERALA HI GH COURT IN THE CASE OF JOHNSON G OOMMEN IN ITA NO.1508 OF 2009 DAT ED 23-03-2010 AND THE ORDER OF THIS TRIBUNAL IN THE CASE OF SRINI KETAN TRUST (SUPRA) THE IMPUGNED ORDER OF COMMISSIONER OF INCOME-TAX(A) IS SET ASIDE AND THAT OF THE ASSESSING OFFICER IS RESTORED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH DECEMBER, 2012 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM, DT : 09 TH DECEMBER, 2012 PK/- 4 COPY FORWARDED TO: 1. DY.CIT, CIR.1, KOLLAM 2. SHOBHANA FARMS PVT LTD, SRIVILAS, KILIKOLLOR, KOLLA M 3. THE COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL , COCHIN