Intas Exports, Ahmedabad V. The ACIT.,Circle-10, Ahmedabad

MA 189/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0146 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 10-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR SHRI Y P VERMA
• Keywords: Retrospective amendment
• Section: 80HHC

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , .!' # , $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA S) BY SL.NO(S) MA NO(S) [IN ITA NOS] ASSESSMENT YEAR(S) APPLICANT RESPONDENT 1. 189/AHD/2012 (IN ITA NO.1819/AHD/08) 2003-04 INTAS EXPORTS 203, CHINUBHAI CENTRE ASHRAM ROAD AHMEDABAD PAN:AAAFI4923J ACIT CIRCLE-10 AHMEDABAD 2 190/AHD/2012 (IN ITA NO.1820/AHD/08) 2004-05 -DO-ASSESSEE -DO-REVENUE 3 200/AHD/2012 (IN ITA NO.1818/AHD/08) 2000-01 -DO-ASSESSEE -DO-REVENUE ASSESSEE BY : SHRI S.N.SOPARKAR REVENUE BY : SHRI Y.P.VERMA, SR.D.R. / DATE OF HEARING : 15/03/2013 / DATE OF PRONOUNCEMENT : 3/5/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THESE PETITIONS FILED ON 10/10/2012 (MA N OS.189 & 190/AHD/2012) AND 22/10/12 (MA NO.200/AHD/2012), TH E PETITIONER HAS RAISED THE FOLLOWING OBJECTION. EXTRACTED FROM MA NOS.189 & 190/AHD/2012 MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 2 - 3. HONBLE ITAT WHILE ADJUDICATING ABOVE GROUNDS ON PAGE 4 IN PARA 4 OF THE ORDER HELD AS UNDER- 4. AFTER HEARING BOTH THE SIDES WE ARE OF THE OPIN ION THAT ON ACCOUNT OF THE AMENDMENTS IN SECTION 28(III A) WITH RETROSPECTIVE EFFECT FROM 01/04/1962; SECTION 28(II ID) WITH RETROSPECTIVE EFFECT FROM 01/04/1998 AND 28(IIIE) W ITH RETROSPECTIVE EFFECT FROM 01/04/2001 VIDE TAXATION LAW (AMENDMENT) ACT, 2005 AND CONSEQUENT AMENDMENT IN SUB-SECTION(3) OF SECTION 80HHC OF THE I.T. ACT, 19 61 AS WELL AS ON ACCOUNT OF THE INSERTION OF 2 ND , 3 RD AND 4 TH PROVISO TO THE SUB-SECTION, THERE IS NO SCOPE LEFT FOR THIS ASSESSEE TO CLAIM THE DEDUCTION IN RESPECT OF INCOM E ON SALE OF DEPB LICENCE BEING THE TURNOVER CROSSED THE LIMIT OF RS.10 CRORES AND THE REQUISITE CONDITIONS HAVE N OT BEEN FULFILLED BY THE ASSESSEE. WE FIND NO FALLACY IN THE ORDERS OF THE AUTHORITIES BELOW AND BY PLACING RELIANCE ON EASTMAN INDUSTRIES LTD. VS. DY.CIT REPORTED AS 120 ITD 362 (DELHI), AFFIRM THE SAME. FOR BOTH THE YEARS , THESE GROUNDS OF THE ASSESSEE ARE, THEREFORE, DISMISSED. 4. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT TH E RATIO AS IN EASTMAN INDUSTRIES LTD. VS. DY.CIT(SUPRA) ON WHICH THE HONBLE BENCH RELIED UPON TO DISMISS THE GROUND RAISED BY T HE APPLICANT IS NO LONGER GOOD LAW IN VIEW OF JUDGMENT RENDERED BY THE HONBLE GUJARAT HIGH COURT IN AVANI EXPORTS VS CIT WHEREIN THE AMENDMENT VIDE TAXATION LAW (AMENDMENT) ACT 2005 IS HELD TO BE PROSPECTIVE AND ALSO SUPREME COURT IN TOPMAN EXPORTS V CIT REPORTED AT 342 ITR 49 LAYING DOWN THE RATIO THAT O NLY 90% OF THE PROFITS ON SALE OF DEPB LICENCE IS TO BE EXCLUDED A ND NOT THE ENTIRE SUM FOR WORKING OUT DEDUCTION U/S.80HHC OF THE ACT. THEREFORE ALTERNATIVE CONTENTION AGITATED AS PER GROUND # 2 A ND GROUND # 3 OF THE APPEAL STANDS COVERED BY THE THESE TWO JUDGM ENTS OF THE APEX COURT. 5. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT IN LIGHT OF THE ABOVE MENTIONED JUDGEMENT, THERE IS ERROR APPARENT IN THE IMPUGNED ORDER, AS HELD BY THE APEX COURT IN CIT V SAURASHTRA KUTCH STOCK MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 3 - EXCHANGE LTD. (305 ITR 227) THAT NON CONSIDERATIO N OF A JUDGMENT OF THE APEX COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, REGARDLESS OF THE JUDGMEN T BEING RENDERED PRIOR TO OR SUBSEQUENT TO THE ORDER PRONOU NCED TO BE RECTIFIED, THEREFORE THE ORDER OF THE HONBLE ITAT IS REQUIR ED TO BE MODIFIED SO AS THE DEDUCTION U/S.80HHC OF THE ACT A S CLAIMED BE ALLOWED. THE APPLICANT THEREFORE, RESPECTFULLY S UBMITS THAT IN THE LARGER INTEREST OF JUSTICE THE HONBLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT AND MODIFY TH E ORDER AS STATED ABOVE. EXTRACTED FROM MA NO.200/AHD/2012 4. HONBLE ITAT WHILE ADJUDICATING ABOVE GROUNDS 2 TO 6 ON PAGE 3 IN PARA 3 OF THE ORDER OBSERVED AS UNDER- 3. WITH THIS BRIEF BACKGROUND, WE HAVE HEARD BOTH THE SIDES. IT IS WORTH TO MENTION THAT IN ASSESSEES O WN CASE FOR ASSESSMENT YEARS 2003-04 & 2004-05, THIS VERY BENCH HAS TAKEN A VIEW THAT IN THE APPELLATE ORDER BEARING ITA # 1819 & 1820/AHD/2008 (RESPECTIVELY) ORDER DATED 30/07/20 10 IN FAVOUR OF REVENUE BY PLACING RELIANCE ON THE DECISI ON OF HONBLE ITAT DELHI BENCH IN THE CASE OF EASTMAN INDUSTRIES LTD. VS. DY.CIT REPORTED AT (2009) 120 ITD 362 (DELHI); AS ALSO THE LATEST AMENDED PROVISIONS OF T HE STATUTE (ANNEXURE I) 5. THE HONBLE ITAT THEN PROCEEDED TO SET ASIDE TH E APPEAL TO THE FILE OF LD.CIT(A) TO DECIDE THE FUNDAMENTAL AND PRI MARY ISSUE OF JURISDICTION AS WELL TO DECIDE THE REST OF THE GROU NDS IN LIGHT OF THEIR DECISION IN RESPECT OF THE EARLIER YEARS CITE D IN THE ORDER I.E. A.Y. 2003-04 & A.Y. 2004-05 AND THUS ALLOWED THE AP PEAL FILED BY THE ASSESSEE ONLY FOR STATISTICAL PURPOSES. MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 4 - 6. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT TH E RATIO AS IN EASTMAN INDUSTRIES LTD. VS. DY.CIT(SUPRA) ON WHICH THE HONBLE BENCH RELIED UPON TO DISMISS THE GROUND RAISED BY T HE APPLICANT IS NO LONGER GOOD LAW IN VIEW OF JUDGMENT RENDERED BY THE HONBLE GUJARAT HIGH COURT IN AVANI EXPORTS VS CIT WHEREIN THE AMENDMENT VIDE TAXATION LAW (AMENDMENT) ACT 2005 IS HELD TO BE PROSPECTIVE AND ALSO SUPREME COURT IN TOPMAN EXPORTS V CIT REPORTED AT 342 ITR 49 LAYING DOWN THE RATIO THAT O NLY 90% OF THE PROFITS ON SALE OF DEPB LICENCE IS TO BE EXCLUDED A ND NOT THE ENTIRE SUM FOR WORKING OUT DEDUCTION U/S.80HHC OF THE ACT. THEREFORE ALTERNATIVE CONTENTION AGITATED AS PER GROUND # 3 A ND GROUND # 4 OF THE APPEAL STANDS COVERED BY THE THESE TWO JUDGM ENTS OF THE APEX COURT. 7. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT IN LIGHT OF THE ABOVE MENTIONED JUDGEMENT, THERE IS ERROR APPARENT IN THE IMPUGNED ORDER, AS HELD BY THE APEX COURT IN CIT V SAURASHTRA KUTCH STOCK EXCHANGE LTD. (305 ITR 227) THAT NON CONSIDERATIO N OF A JUDGMENT OF THE APEX COURT WOULD ALWAYS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, REGARDLESS OF THE JUDGMEN T BEING RENDERED PRIOR TO OR SUBSEQUENT TO THE ORDER PRONOU NCED TO BE RECTIFIED, THEREFORE THE ORDER OF THE HONBLE ITAT IS REQUIR ED TO BE MODIFIED SO AS THE DEDUCTION U/S.80HHC OF THE ACT A S CLAIMED BE ALLOWED. ALTERNATIVELY THE SET ASIDE TO CIT(A) BE MADE WITHOUT RESTRICTING HIM TO BE BOUND BY THE OTHER OBSERVATIO NS OF THE HONBLE TRIBUNAL. 2. THE LD.AR, MR.S.N.SOPARKAR HAS PLEADED THAT CERT AIN DECISIONS HAVE BEEN PRONOUNCED BY THE HONBLE SUPREME COURT A ND BEING LAW OF THE LAND HAS TO BE APPLIED ON THE FACTS AND CIRCUMS TANCES OF THE CASE. THE LD.AR HAS ALSO PLEADED THAT IN THE LIGHT OF CERTAIN LATEST DECISIONS ONLY PROFIT ELEMENT ON DEPB LICENCE TRANSACTION IS NOW R EQUIRED TO BE TAXED AND 90% OF THE GROSS RECEIPT WAS NOT TO BE EXCLUDED . THE LD.AR HAS MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 5 - PLACED RELIANCE ON TOPMAN EXPORTS VS. CIT (2012) 3 42 ITR 49 (SC) AND AVANI EXPORTS & ORS. 348 ITR 391 ( GUJ.). 3. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.Y.P.VE RMA HAS OPPOSED THE PETITION PRIMARILY ON THE GROUND THAT I N THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (S C) AND IN THE CASE OF DINOSAUR STEELS LTD. 25 TAXMANN.COM 554(S.C.), T HE JUDGEMENT WHICH IS PRONOUNCED AFTER THE COMPLETION OF THE ORD ER SHOULD NOT BE TAKEN INTO ACCOUNT SPECIALLY WHEN A PETITION HAS BE E MOVED U/S.254(2) OF THE ACT. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT IN THE LEAD YEAR, I.E. AY 2 003-04 GROUND FROM 1 TO 5 REVOLVE AROUND THE ISSUE OF SALE OF DEPB LICEN CES. IN THE LIGHT OF THE LATEST DECISION AS CITED SUPRA, THIS ISSUE HAS TO B E READJUDICATED BY THE TRIBUNAL AFRESH AS PER LAW. AT THAT TIME THE TRIBU NAL HAS TAKEN A VIEW VIDE PARAGRAPH NO.4 OF THE ORDER FOR AY 2003-04 THA T THE TURNOVER HAS CROSSED THE LIMIT OF RS.10 CRORES, HENCE EASTMAN INDUSTRIES LTD. VS. DY.CIT 120 ITD 362(DELHI) WAS TO BE APPLIED IN RESP ECT OF INCOME ON SALE OF DEPB LICENCES. HOWEVER, THIS VIEW IS NOW T O BE EXAMINED AFRESH IN THE LIGHT OF THE LATEST DEVELOPMENT OF LAW AS EX AMINED BY THE HONBLE COURTS. EVEN THIS TRIBUNAL IN SEVERAL OTHER CASES HAVE ALSO TAKEN THE SAME VIEW, FOR REFERENCE CITATION IS SAGAR DRUGS & PHARMACEUTICALS LTD.(M.A.NO.149/AHD/2012 ORDER DATED 14.12.12 - ITA T C BENCH MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 6 - AHMEDABAD), WHEREIN AN ANOTHER ORDER HAS BEEN REFER RED; REPRODUCED BELOW:- 2. WITH THIS BRIEF BACKGROUND, WE HAVE HEARD BOTH THE SIDES. THERE IS NO DISPUTE ABOUT THE AVAILABILITY OF A LAT EST ORDER OF HON'BLE APEX COURT PRONOUNCED IN THE CASE OF TOPMAN EXPORTS (342/49)[SC], WHEREIN A VIEW HAS BEEN EXPRESSED IN FAVOUR OF THE ASSESSEE. WE HAVE ALSO BEEN INFORMED THAT ON IDENTI CAL SITUATION, ITAT 'C' BENCH AHMEDABAD IN A MISCELLANEOUS PETITIO N OF LAY CHEMICALS INDUSTRIES LTD. VS. DC1T BEARING MA NO.50 /AHD/2012 [IN ITA NO.4237/AHD/2007 - A.Y. 2004-05] ORDER DATE D 31/08/2012 HAS ALLOWED SUCH PETITION IN THE FOLLOWI NG MANNER.- '4. RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HON'BL E GUJARAT HIGH COURT RENDERED IN THE CASE OF SUHRID GIEGY LTD . (SUPRA) AND ALSO THE JUDGEMENT OF HON'BLE APEX COURT RENDER ED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE (SUPRA), WE HOLD THAT THERE IS APPARENT MISTAKE IN IMPUGNED TRIBUNAL ORDER AS THE CLAIM OF THE ASSESSEE REGARDING DEDUCTION U/S.8 0HHC IN RESPECT OF DEPB ENTITLEMENT/DEPB INCOME WAS DECIDED AGAINST THE ASSESSEE FOR THE WHOLE AMOUNT BUT AS PE R THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA), ONLY PROFIT ON SALE OF DEPB SHOULD BE CONSIDERED FOR THE PURPOSE OF EXCLUSION FORM BUS INESS PROFIT FOR COMPUTING DEDUCTION ALLOWABLE TO THE ASSESSEE U/S.80HHC AND FOR THE COMPUTATION OF PROFIT ON SALE OF DEPB, FACE VALUE OF DEPB IS TO BE CONSIDERED AS COSTS OF DEPB. WE, T HEREFORE, RECTIFY THIS APPARENT MISTAKE IN THE IMPUGNED TRIBU NAL ORDER AND HOLD THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AS PER THIS JUDGEMENT OF HONB LE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA ). WE THEREFORE DEEM IT PROPER AS ALSO JUSTIFIABLE TO RECALL THIS ISSUE IN RESPECT OF ALL THE CONNECTED YEARS; SUBJECTED TO APPEAL; IN THE ORDER OF THE TRIBUNAL DATED 30/07/2010 & 31/08/2010, HENCE T HE IMPUGNED MA NOS.189,190 AND 200/AHD/2012 (IN ITA NOS.1819,1820 AND 1818/AHD/2008 RESPECTIVE LY) INTAS EXPORTS VS. ACIT ASST.YEARS - 2003-04, 2004-05 & 2000-01 RESPECTIVE LY - 7 - PORTION IS RECALLED AND TO BE DECIDED DE NOVO ACCOR DING TO LAW. THE REGISTRY IS DIRECTED TO ISSUE NOTICES TO BOTH THE S IDES. 5. IN THE RESULT, ALL THE THREE MISCELLANEOUS APPL ICATIONS ARE HEREBY ALLOWED. SD/- SD/- ( . ) ( ) ! '!#! ! ( A. MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 03/ 05 /2013 $ .%.!, .#../ T.C. NAIR, SR. PS $( ) *+, -$,. / COPY OF THE ORDER FORWARDED TO : 1. '%() / THE APPELLANT 2. *+!() / THE RESPONDENT. 3. ,-. ! !/ / CONCERNED CIT 4. ! !/ ('%) / THE CIT(A)-XVI, AHMEDABAD 5. 234%! *##-., ! '% ! -., , / DR, ITAT, AHMEDABAD 6. 456 7 / GUARD FILE. $(' / BY ORDER, +!2' *# //TRUE COPY// // 0 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 15.3.13 (DICTATION-PAD 5 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 26.3.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S3.5.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 3.5.13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER