The DCIT, Circle-10., Ahmedabad V. Jay Chem, Ahmedabad

MA 243/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6801 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 03-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Section: 80IB

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , , , , !'# !'# !'# !'#, , , , $ $ $ $ % &' ( % &' ( % &' ( % &' ( , , , , ) ) ) ) & # & # & # & # BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER MA NO.243 AND 244/AHD/2010 IN ITA NO.816 AND 817/AHD/2007 [ASSTT.YEAR : 2000-2001 AND 2003-2004] ACIT,CIR.10 AHMEDABAD. /VS. M/S.JAY CHEM SHILP BUILDING, C.G.ROAD NAVRANGPURA AHMEDABAD. ( (( (+, +, +, +, / APPELLANT) ( (( (-.+, -.+, -.+, -.+, / RESPONDENT) ) / 0 &/ REVENUE BY : SHRI B.L.YADAV 23 / 0 &/ ASSESSEE BY : SHRI S.N. SOPARKAR WITH SHRI JAIMIN GANDHI 4 5 / 36/ DATE OF HEARING : 12 TH AUGUST, 2011 789 / 36/ DATE OF PRONOUNCEMENT : 12 TH AUGUST, 2011 &' / O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : BY THESE MISC. APPLICATIONS, THE ASSESSEE HAS REQUESTED FOR RECALL ING OF THE ORDER OF THE ITAT IN ITA NO.816, 817/AHD/2007 AND 1092 AND 1093/ AHD/2007. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. AFTER GOING THROUGH THE MISC. APPLICATI ONS A WELL AS THE HEARING THE LEARNED DR, IT IS OBVIOUS THAT THE REVE NUE IS SEEKING REVIEW OF THE ORDER OF THE ITAT . FROM THE FOLLOWING PARA GRAPHS OF THE MISC. APPLICATION, THE ABOVE POSITION WOULD BE EVIDENT. MA NO.243 AND 244/AHD/2010 -2- THE DECISION OF THE HONBLE IOTAT OF ALLOWING DEDU CTION U/S.80IB AS WELL AS DEDUCTION U/S.80HHC OF THE ACT ON RECEIPTS ARISING OUT OF THE EXCHANGE RATE FLUCTUATION IS NOT ACCEPTABLE FOR THE FOLLOWING REASONS: .... IN VIEW OF THE ABOVE, THE HONBLE ITAT IS NOT CORRECT ON THE INTERPRETATION OF THE PROVISIONS OF SEC.80IB AND SE C.80HHC OF THE ACT, WHICH IS TO BE CONSIDERED AS MISTAKE APPARENT FROM RECORD. FROM THESE TWO PARAGRAPHS OF THE MISC. APPLICATION, IT IS EVIDENT THAT MISC. APPLICATION IS FILED BY THE REVENUE BECAUSE A S PER THE AO THE DECISION OF THE ITAT IS NOT CORRECT OR THE SAME IS NOT ACCEPTABLE TO THEM. THAT MERELY BECAUSE THE DECISION OF THE ITAT IS NOT ACCEPTABLE TO THE REVENUE OR IS NOT CORRECT IN THE OPINION OF THE AO, WOULD BE NO GROUND FOR RECALLING THE ORDER. THAT THE POWER OF THE ITA T UNDER SECTION 254 IS LIMITED TO THE EXTENT OF RECTIFYING THE MISTAKE WHI CH IS APPARENT FROM THE RECORD. NO MISTAKE APPARENT FROM THE RECORD IS POI NTED OUT BY THE AO. THE REVENUES MISC. APPLICATION CAN AT THE MOST BE TREATED AS A PETITION FOR REVIEW. THE ITAT HAS NO POWER OF REVIEWING ITS OWN ORDER. AS PER THE AO DECISION OF THE ITAT IN DIRECTING THE AO TO ALLOW DEDUCTION UNDER SECTION 80IB ON THE INCOME ARISING OUT OF THE CURRENCY RATE DIFFERENCE IS NOT CORRECT OR NOT ACCEPTABLE TO THE AO. THAT THE AO IN THE MISC. APPLICATION ITSELF HAS POINTED OUT THAT THE I TAT ALLOWED THE RELIEF FOLLOWING ANOTHER DECISION OF THE ITAT WHICH IS BAS ED UPON THE DECISION OF THE HONBLE GUJARAT HIGH COURT, WHICH IS EVIDENT FROM THE FOLLOWING PARA OF THE MISC. APPLICATION. ON PERUSAL OF THE SAID ORDER IT IS SEEN THAT HON'B LE ITAT HAS DELETED THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S. 801B OF THE ACT ON THE INCOME ARISING OUT OF CURRENCY RATE DIFFEREN CE RELYING UPON THE DECISION OF HON'BLE ITAT, MUMBAI BENCH IN THE C ASE OF SHAH ORIGINALS V/S. ACIT/DCIT, RANGE-24(1), MUMBAI (2008 ) 19 SOT MA NO.243 AND 244/AHD/2010 -3- 566 (MUM.) WHO HAS FOLLOWED THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V/S. INDIA GELATINE & CHEM ICALS LTD. IN WHICH IT IS HELD THAT SUCH INCOME ARE DIRECTLY RELA TED TO THE BUSINESS OF INDUSTRIAL UNDERTAKING AND ELIGIBLE FOR DEDUCTIO N U/S.801B OF THE ACT. SIMILARLY, THE HON'BLE ITAT HAS DELETED THE DI SALLOWANCE OF CLAIM OF DEDUCTION U/S.80HHC OF THE ACT ON THE INCO ME ARISING OUT OF CURRENCY RATE DIFFERENCE RELYING UPON THE DECISI ON OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. AM BA IMPEX 282 ITR 144. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN T HE REVENUES MISC. APPLICATIONS, THE SAME ARE DISMISSED. 4. IN RESULT, REVENUES MAS ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 12 TH AUGUST, 2011 SD/- SD/- ( % &' ( % &' ( % &' ( % &' ( /BHAVNESH SAINI) ) ) ) ) /JUDICIAL MEMBER ( . .. . . .. . G.D. AGARWAL) !'# !'# !'# !'# /VICE-PRESIDENT PLACE : AHMEDABAD DATE : 12-08-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD