ACIT, Trivandrum V. M.A.Mohammed, Trivandrum

MA 41/COCH/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4917 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2010
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 03-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 24-05-2010
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Assessee Lawyers: R KRISHNA IYER
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN. BEFORE SHRI N. VIJAYAKUMARAN & SHRI SANJAY ARORA M.P.NO.41/COCH/2010 (ARISING OUT OF I.T.A.NO.658/COCH/2007) ASSESSMENT YEAR: 2002-03 THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE- 1(2),RANGE-1, TRIVANDRUM. VS. SHRI M.A.MOHAMMED, PROP.M/S.M.A.MOHAMMED IMPORTS & EXPORTS, THE ARCADE,KARAMANA, TRIVANDRUM. (PETITIONER) (RESPONDENT) PETITIONER BY SHRI T.J.VINCENT, JR.D.R. RESPONDENT BY SHRI R. KRISHNA IYER, CA O R D E R PER N.VIJAYAKUMARAN,JM: THIS MISCELLANEOUS PETITION BY THE DEPARTMENT ARIS ES OUT OF ITA NO.658/COCH/2010 WHEREIN TRIBUNAL HAS PA SSED COMMON ORDER FOR ITA NO.657 & 658/COCH/2007 DATED 2 1- 11-2008. THE ASSESSMENT YEAR INVOLVED IS 2002-03. 2. THE LD. D.R. WOULD SUBMIT BY WAY OF THIS MISCELL ANEOUS PETITION THAT THE TRIBUNAL FAILED TO CONSIDER THE A LLOWABILITY OF DEDUCTION U/S.80HHC WHERE THE PROFIT COMPUTED U/S.80HHC(3)(A)(B) OR (I) IS A LOSS I.E. THE QUESTI ON WHETHER MP NO.41/COCH/2010 2 THE ASSESSEE WHO SUFFERED LOSS IN EXPORT BUSINESS I S ENTITLED TO DEDUCTION U/S.80HHC OR NOT?. THE LD. DR SUBMIT TED THAT IT IS A MISTAKE APPARENT ON RECORD WHICH REQUIRES RECTIFICATION. THEREFORE, THE ORDER OF THE TRIBUN AL IS TO BE RECTIFIED TO THAT EXTENT. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THEE ASSE SSEE WOULD SUBMIT THAT THE ORDER OF THE TRIBUNAL REQUIRE S NO RECTIFICATION AS THERE IS NO MISTAKE AS ALLEGED BY THE LD. DR. HE SUBMITTED THAT IN THAT ORDER TRIBUNAL HAS GIVEN A FACTUAL FINDING THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80HHC BY WAY OF TAXATION LAWS (AMENDMENT) ACT,2005 BY WHI CH 5 TH PROVISO TO SECTION 80HHC WAS INSERTED RETROSPECTIVE LY AND HENCE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80HHC OF THE ACT AND ACCORDINGLY THE LD. CIT(APPEALS) ALLOWED THE A PPEAL OF THE ASSESSEE WHICH WAS CONFIRMED BY THE TRIBUNAL. THE TRIBUNAL WENT INTO THE FACTS BY APPLICATION OF MIND AND ALSO CIRCULAR NO.20 DATED 28-01-2002 AND FOUND THAT THE DHANALAKSHMI BANK LTD. HAS CONFIRMED THAT THEY ARE AUTHORIZED DEALERS AND THEREFORE THE COMPETENT AUTH ORITY FOR THE PURPOSE OF SECTION 80HHC(2)(A). BY THAT OBSERVATION, THE TRIBUNAL CAME TO THE CONCLUSION TH AT THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(APPEALS ) AND ULTIMATELY DISMISSED THE DEPARTMENTAL APPEAL. THE LD. MP NO.41/COCH/2010 3 COUNSEL TOOK PAIN TO INVITE OUR ATTENTION TO THE GR OUND OF THE DEPARTMENT IN ITA NO,658/COCH/2007, I.E. GROUND NOS . 2,3 & 4 WHICH WERE DEALT WITH AND DECIDED BY THE TRIBUNAL . HENCE, IT WILL AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE - 305 ITR 227. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PRECEDE NTS. IT IS A SETTLED LAW THAT IT IS NOT POSSIBLE FOR THE TRIBU NAL TO REVIEW ITS ORDER BY WAY OF MISCELLANEOUS PETITION. IN A MI SCELLANEOUS PETITION, THE PARTIES HAVE TO ESTABLISH THAT THERE IS A MISTAKE APPARENT ON RECORD WHICH REQUIRES RECTIFICATION. HERE, WE FIND THAT THERE IS NO MISTAKE APPARENT FROM RECORD HAS BEEN ESTABLISHED TO HAVE BEEN CREPT IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS CLEARLY ANSWERED THE GROUNDS URGED BY THE REVENUE BEFORE IT AND THERE IS NO ERROR APPARENT ON RECORD AND IF WE ENTERTAIN THE PRESENT MISCELLANEOUS PETIT ION, IT WILL AMOUNT TO REVIEW, WHICH IS NOT PERMISSIBLE IN THE E YE OF LAW. HENCE, WE HAVE NO HESITATION IN DISMISSING THIS MISCELLANEOUS PETITION FILED BY THE REVENUE, AS NO ERROR APPARENT ON RECORD HAS BEEN BROUGHT TO OUR NOTICE. MP NO.41/COCH/2010 4 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. SD/- SD/- (SANJAY ARORA) (N.VIJAYAKUM ARAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM, DATED THE 07 TH SEPTEMBER,2010. PM. COPY FORWARDED TO: 1. THE DY. CIT, CIRCLE-1(2),RANGE-1,TRIVANDRUM. 2. SHRI M.A.MOHAMMED, PROP.M/S.M.A.MOHAMMED IMPORTS & EXPORTS, THE ARCADE,KARAMANA, TRIVANDRUM. 3. CIT., TRIVANDRUM. 4. CIT(A)-I,TRIVANDRUM. 5. D.R.