Euro Footwear Ltd., Kanpur V. Asstt. Commissioner of Income Tax-VI, Kanpur

MA 4/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3088 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 12-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Assessee Lawyers: P K KAPOOR
• Keywords: Business income
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER M.A. NO . 4 & 5 /LKW/201 5 [ARISING OUT OF ITA NO . 877 & 878 /LKW/20 08 ] ASSESSMENT YEAR : 20 0 3 - 0 4 & 2004 05 M/S EURO FOOTWEAR LTD., 15/63 , CIVIL LINES , KANPUR V. A. C.I.T. VI , KANPUR PAN:AA A CE6805E (APP LIC ANT) RESPONDENT APP LIC ANT BY: SHRI. P . K . KAPOOR , C.A. RESPONDENT BY: SHRI. PUNIT KUMAR, D.R. DATE OF HEARING: 27 03 2015 DATE OF PRO NOUNCEMENT: 30 0 4 2015 O R D E R PER A. K. GARODIA : TH ESE TWO MISCELLANEOUS APPLICATION S ARE PREFERRED ON BEHALF OF THE ASSESSEE AGAINST T HE COMBINED ORDER OF THE TRIBUNAL DATED 1 3 . 11 .201 4 WITH THE SUBMISSION THAT THE TRIBUNAL HAS DECIDED THE ISSUE REGA RDING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB RAISED IN THESE TWO APPEAL S WITHOUT CONSIDERING WRITTEN SUBMISSIONS RUNNING INTO 8 PAGES, RELEVANT PARA BEING 8 TO 12 AND THE FOLLOWING THREE JUDGMENTS ON WHICH RELIANCE WAS PLACED AS PER THESE PARAS O F WRITTEN SUBMISSIONS : - 1 ) B. DESRAJ VS. CIT, 301 ITR 439 (SC) 2 ) NISSAN EXPORTS VS. CIT, 217 TAXMAN 397 (SC) 3 ) VIKAS KALRA VS. CIT, 345 ITR 557 (SC) IT IS ALSO A CONTENTION THAT SYNOPSIS ABOUT THE TERM DERIVED FROM WAS ALSO FILED BUT WAS NOT CONSIDERED IN THE TRIBUNAL ORDER. : - 2 - : 2 . THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL WIT H THE SUBMISSION THAT SINCE THE TRIBUNAL HAS DECIDED THE APPEAL ON MERIT, THE RE IS NO APPARENT MISTAKE IN THE ITAT ORDER RECTIFIABLE U/S 254(2) . 3 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL VIS - - VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT THE RE IS NO MERIT IN THESE MAS BECAUSE AS PER THE TRIBUNAL ORDER, RIVAL SUBMISSIONS WERE CONSIDERED AND THE ISSUE REGARDING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB RAISED IN THESE TWO APPEALS ASSESSEE WAS DECIDED BY FOLLOWING THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF LIBERTY INDIA VS. CIT, 317 ITR 218 (SC) AND HENCE, DISCUSSION ABOUT WRITTEN SUBMISSIONS, SYNOPSIS AND CITED JUDGMENTS IN THE TRIBUNAL ORDER WAS NOT CONSIDERED NECESSARY. SIMPLY BECAUSE THERE IS NO DISCUSSION ABOUT WRITTEN SUBMISSIONS, SYNOPSIS AND CITED JUDGMENTS, IT CANNOT BE SAID THAT THE SAME WERE NOT CONSIDERED. 4 . STILL, WE MAKE OBSERVATIONS ABOUT THE THREE CITED JUDGMENTS. ALL THESE THREE JUDGMENTS ARE IN CONTEXT OF DEDUCTION U/S 80HHC. FOR DEDUCTION U/S 80HHC, IF AN INCOME IS HELD TO BE BUSINESS INCOME, NOT AFFECTED BY CLAUSE (BAA) OF EXPLANATION TO SECTION 80HHC, IT WI LL BE CONSIDERED FOR DEDUCTION U/S 80HHC IN THE RATIO OF EXPORT TURNOVER TO TOTAL TURNOVER. BUT FOR AVAILING DEDUCTION U/S 80IB, EVEN FOR BUSINESS INCOME, IT HAS TO BE ESTABLISHED THAT THE SAME IS DERIVED FROM THE ELIGIBLE INDUSTRIAL UNDERTAKING. IT WAS HE LD IN THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF LIBERTY INDIA VS. CIT, 317 ITR 218 (SC) THAT EXPORT INCENTIVE IS NOT DERIVED FROM THE ELIGIBLE INDUSTRIAL UNDERTAKING. HENCE, FOR THIS ISSUE, THIS JUDGMENT IS DIRECT ON SECTION 80IB AND THE SAME IS TO BE FOLLOWED IN PREFERENCE TO OTHER JUDGMENTS ON THE ISSUE OF DEDUCTION U/S 80HHC. : - 3 - : 5 . REGARDING SYNOPSIS ABOUT THE TERM DERIVED FROM AVAILABLE ON PAGES 14 TO 25 OF THE PAPER BOOK, WE FIND THAT THE ASSESSEE HAS REPRODUCED THE RELEVANT PORTION OF T HE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF LIBERTY INDIA VS. CIT, 317 ITR 218 (SC) AND THERE IT IS NOTED THAT INCENTIVE PROFITS ARE NOT PROFITS DERIVED FROM THE ELIGIBLE BUSINESS U/S 80IB. THEY BELONG TO THE CATEGORY OF ANCILLARY PROFITS O F SUCH UNDERTAKINGS. FROM THESE OBSERVATIONS OF HONBLE APEX COURT, IT IS CLEAR THAT IN THIS CASE ALSO, HONBLE APEX COURT HAS CONSIDERED THE INCENTIVE PROFIT ALSO AS BUSINESS PROFIT BUT NOT A PROFIT DERIVED FROM THE ELIGIBLE BUSINESS U/S 80IB BUT IT WAS CONSIDERED IN THE CATEGORY OF ANCILLARY PROFITS OF SUCH UNDERTAKINGS. HENCE THIS SYNOPSIS ABOUT THE TERM DERIVED FROM IS ALSO NOT RELEVANT. 6 . AS PER ABOVE DISCUSSION, WE FIND THAT THE SYNOPSIS, WRITTEN SUBMISSIONS AND THREE CITED JUDGMENTS ARE NOT AFFECTIN G THE DECISION AS PER IMPUGNED TRIBUNAL ORDER AND HENCE THESE MAS ARE DEVOID OF MERIT 7 . IN THE RESULT, BOTH MISCELLANEOUS APPLICATION S ARE DISMISSE D. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION ED PAGE. SD/. SD/. [SUNIL KUMAR YADAV] [ A. K. GARODIA ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH APRIL , 2015 JJ: 2703 COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT : - 4 - : 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR