R.N. Gupta & Company Limited, Ludhiana V. JCIT, Ludhiana

MA 54/CHANDI/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9251 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 16-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH AGGARWAL
• Section: 244A; 80HHC; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R. SOOD, AM AND MS. SUSHMA CHOWLA, JM MISC. APPLICATION NO. 54/CHD/2012 ARISING OUT OF ITA NO. 55/CHD/2008 ASSESSMENT YEAR: 2004-05 R.N. GUPTA & CO. LTD. V J.C.I.T. RANGE I FOCAL POINT, LUDHIANA LUDHIANA (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SUBHASH AGGARWAL RESPONDENT BY: SHRI AKHILESH GUPTA DATE OF HEARING: 12.10.2012 DATE OF PRONOUNCEMENT: 17.10.2012 ORDER PER T.R. SOOD, A.M THROUGH THIS MISC. APPLICATION THE ASSESSEE HAS SOU GHT RECTIFICATION OF ERROR WHICH CREPT INTO THE ORDER OF THE TRIBUNAL. L D. COUNSEL OF THE ASSESSEE REFERRED TO THE CONTENTS OF THE APPLICATION AND POI NTED OUT THAT GROUNDS NO. 4, 5 & 7 WHICH WERE RAISED IN THE APPEAL, HAVE NOT BEEN ADJUDICATED. HE ALSO READ OUT THE ORDER OF THE TRIBUNAL AND POINTED OUT THAT CLEARLY THESE ISSUES HAVE NOT BEEN ADJUDICATED. THEREFORE, THE ORDER MAY BE REC ALLED TO ADJUDICATE THESE GROUNDS. 2. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE S TRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL AND POINTED OUT THAT THE ISSU ES RAISED ON GROUNDS NO. 4 & 5 HAVE BEEN ADJUDICATED BY THE TRIBUNAL VIDE PARA 4 OF THE ORDER. IN THIS CASE THE APPEALS WERE HEARD IN GROUP OF ASSESSEE AND ISS UES WERE DETERMINED AND THE MATTERS WERE ADJUDICATED ON ISSUE WISE, THEREFO RE, THESE ISSUES ARE ALSO STAND ADJUDICATED. GROUND NO. 7 IS ONLY OF CONSEQU ENTIAL NATURE AND IT DOES NOT REQUIRE SEPARATE ADJUDICATION. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY I N THE LIGHT OF ORDER OF THE TRIBUNAL. WE FIND THAT A GROUP OF APPEALS WERE ADJ UDICATED VIDE CONSOLIDATED ORDER DATED 31.8.2009. THE MAJOR ISSUE WAS REGARDI NG DEDUCTION U/S 80HHC ON ACCOUNT OF SALE OF DEPB INSTALLMENTS AND WHICH WERE ADJUDICATED VIDE PARA 1 TO 3 BY SETTING A SIDE THE ORDER TO THE FILE OF A O TO DECIDE THIS ISSUE IN THE LIGHT OF SPECIAL BENCH IN CASE OF M/S TOPMAN EXPORTS, ITA NO. 5769/M/2006. FURTHER AT PARA 4 OF THE ORDER, FOLLOWING OBSERVATI ONS WERE MADE: 2 HEREIN WE MAY ALSO MAKE A MENTION THAT IN SOME OF THE APPEALS, THERE ARE OTHER ISSUES WHICH ALSO RELATE TO THE MANNER OF COMPUTATI ON OF D ED U/S 80HHC OF THE ACT. ON SUCH ASPECTS ALSO, THE MATTERS ARE S ET ASIDE TO THE FILE OF THE AO FOR RE-ADJUDICATION IN ACCORDANCE WITH LAW SINCE THE PRINCIPAL DISPUTE RELATING TO THE DEDUCTION U/S 80HHC OF THE ACT HAS BEEN S ET ASIDE BY US IN THE EARLIER PARAGRAPH. ACCORDINGLY WE DIRECT THE AO TO RECOMPUTE THE DEDUCTION ELIGIBLE U/S 80HHC OF THE ACT KEEPING IN MIND THE DECISION OF THE SPECIAL BENCH IN THE CASE OF M/S TO PMAN EXPORTS & OTHERS (SUPRA) AND IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THE AO SHA LL ALLOW A REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRESENT THEIR VERSION OF THE ELIGI BLE DEDUCTION U/S 80HHC OF THE ACT AND THEREAFTER THE AO SHALL PASS AN ORDER AFRESH IN ACCORDANCE WITH LAW. 4. THE ABOVE CLEARLY SHOWS THAT OTHER ISSUE REGARDI NG 80HHC WERE ALSO SET ASIDE TO THE FILE OF AO. NOW GROUND NO. 4 & 5 OF A SSESSEES APPEAL READS AS UNDER: 4 THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE AO IN EXCLUDING THE VALUE OF SALE OF SCRAP FROM THE TURNOVER AS WELL AS THE PROFITS OF THE BUSINESS IGNORING THE FACT THAT SCRAP OF SALE IS PART OF TURNOVER AND THERE WAS NO JUSTIFICATION TO EXCLUDE THE SAME FROM THE TURNOVER AS WELL AS THE PROFITS OF THE BUSINESS. 5. THAT THE LD. CIT(A) HAS WRONGLY UPHELD THE ACTIO N OF THE AO IN REDUCING 90% OF THE BROKERAGE FROM THE PROFITS OF THE BUSINESS IGNO RING THE FACT THAT THE BROKERAGE WAS BY WAY OF DISCOUNT ALLOWED BY THE SHIPPING LINE ON OCEAN FREIGHT, WHICH WAS LIABLE TO BE REDUCED FROM THE OCEAN FREIGHT EXPENSES. THE ABOVE TWO GROUNDS CLEARLY RELATE TO THE ISSUE O F DEDUCTION U/S 80HHC OF THE ACT. THUS IT IS CLEAR THAT ABOVE TWO GROUNDS S TAND ADJUDICATED VIDE PARA 4 OF THE ORDER WHICH WE HAVE REPRODUCED ABOVE. THE I SSUE REGARDING LEVY OF INTEREST U/S 234B AND 234D OF THE ACT AS WELL AS AL LOWANCE OF INTEREST U/S 244A ARE ALWAYS OF CONSEQUENTIAL NATURE AND THERE IS NO NEED TO RECALL THE ORDER BECAUSE INTEREST IN ANY CASE WOULD BE CALCULATED ON THE BASIS OF LIABILITY DETERMINED BY THE AO ON THE BASIS OF THE ORDER OF THE TRIBUNAL. IN FACT WHEN THE MATTER STOOD SET ASIDE TO THE FILE OF THE AO, T HE ASSESSEE SHOULD TAKE STEPS TO PURSUE THE MATTER WITH THE AO AND THE ASSESSEE C ANNOT POSSIBLY AGITATE THAT THESE GROUNDS HAVE NOT BEEN ADJUDICATED BY THE TRIB UNAL. IN THESE CIRCUMSTANCES WE FIND NO MERIT IN THE MISC. APPLICA TION AND ACCORDINGLY WE REJECT THE SAME. 6. IN THE RESULT, MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 17.10.2012 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 ,10.2012 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/ THE DR 3