M/s Anjaneya Aqua, Ongole V. The DCIT, Circle-2(1), Guntur

MA 88/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5075 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 23-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: N O N E
• Keywords: Retrospective amendment
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NOS.87&88/VIZAG/2010 (ARISING OUT OF ITA NOS.363/VIZAG/2008 & ITA NO.377/VIZAG/2009 RESPECTIVELY) ASSESSMENT YEARS : 2000-01 & 2001-02 RESPECTIVELY M/S. ANJANEYA AQUA ONGOLE DCIT, CIRCLE-2(1) ONGOLE (APPELLANT) VS. (RESPONDENT) PAN NO.AAGFA 2630L DEPARTMENT BY: SHRI D.S. SUNDER SINGH, DR ASSESSEE BY: N O N E ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THESE MISCELLANEOUS APPLICATION ARE PREFERRED BY THE ASSESSEE ON THE GROUND THAT TRIBUNAL HAS OBSERVED IN ITS PARA-5 & P ARA-6 THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF AMENDMENT BROUGHT IN SECTION 80HHC OF THE I.T. ACT, WHEREAS THE FACTS ON RECORD ARE THAT THE A SSESSMENT WAS RE-OPENED CONSEQUENT UPON THE DECISION OF THE SUPREME COURT I N M/S. IPCA LABORATORY VS. CIT, WHERE THE APEX COURT HAD OBSERVED THAT ONC E THE EXPORT HOUSE HAD INCURRED LOSS ON THE EXPORT OF TRADING GOODS, IT WA S NOT ENTITLED TO ANY DEDUCTION U/S 80HHC. 2. THESE MISCELLANEOUS APPLICATIONS CAME UP FOR HEA RING ON 3 RD OF SEPTEMBER, 2010 BUT NONE APPEARED ON BEHALF OF THE ASSESSEES. THE ASSESSEE HOWEVER, FILED THE WRITTEN SUBMISSIONS AND THE SAME WERE TAKEN ON RECORD. ACCORDINGLY, THE REVENUE WAS HEARD. 3. WE HAVE CAREFULLY EXAMINED THE MISCELLANEOUS APP LICATIONS, WRITTEN DOCUMENTS, VIS--VIS THE ORDER OF THE TRIBUNAL AND FROM A CAREFUL PERUSAL, WE FIND THAT TRIBUNAL HAS OBSERVED IN PARA 5 & 6 THAT THE ASSESSMENT WAS RE- OPENED ON THE BASIS OF THE AMENDMENT BROUGHT IN SEC TION 80 HHC OF THE I.T. 2 ACT WITH RETROSPECTIVE EFFECT. WHEREAS, THE FACTS BORNE OUT FROM THIS ORDER OF THE LOWER AUTHORITIES ARE OTHERWISE. FROM A CAREFU L PERUSAL OF THE ORDER OF THE CIT(A) WE FIND THAT THE CIT(A) HAS CATEGORICALL Y MENTIONED IN HIS ORDER THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF T HE DECISION OF THE SUPREME COURT IN M/S. IPCA LABORATORY VS. CIT IN WHI CH THE APEX COURT HAD OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LO SS ON THE EXPORT OF TRADING GOODS, IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. WE THEREFORE, OF THE VIEW THAT TRIBUNAL HAS INADVERTEN TLY MENTIONED THE INCORRECT FACTS WHICH REQUIRE TO BE RECTIFIED. WE THEREFORE, SUBSTITUTE THE FOLLOWING SENTENCES OF PARA-5 AND 6 AS UNDER: IN PARA-5 FROM 6 TH LINE I.E. FROM READING OF THE REASONS RECORDED, IT BECOMES CLEAR THAT ASSESSMENT WAS RE-OPENED IN VIEW OF THE RESTROSPECT IVE AMENDMENT OF PROVISIONS OF SECTION 80HHC BY TAXATION LAW AMENDME NT, 2005 W.E.F. 1.4.1988 BE SUBSTITUTED BY FROM READING OF THE REASONS RECORDED, IT BECOMES CLEAR THAT ASSESSMENT WAS RE-OPENED IN VIEW OF THE JUDGEMENT O F THE SUPREME COURT IN THE CASE OF IPCA LABORATORY VS. CIT WHERE THE APEX C OURT HAS OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LOSS ON THE EXPO RT OF TRADING GOODS, IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. IN PARA-6 FROM 6 TH LINE I.E. FROM A CAREFUL PERUSAL OF ASSESSMENT ORDER IT APP EARS THAT ASSESSMENT WAS RE-OPENED ON THE BASIS OF THE AMENDM ENT BROUGHT IN SECTION 80HHC OF THE I.T. ACT. THE AMENDMENT WAS WITH RETR OSPECTIVE EFFECT BUT ON THE BASIS OF IT ONLY THOSE ASSESSMENT CAN BE RE-OPE NED WHICH ARE PERMISSIBLE UNDER THE LAW AND NOT OTHERWISE BE SUBSTITUTED BY FOLLOWING LINES: FROM A CAREFUL PERUSAL OF THE ASSESSMENT ORDER, I T APPEARS THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF THE JUDGEM ENT OF THE SUPREME COURT IN THE CASE OF IPCA LABORATORY VS. CIT WHERE THE APEX COURT HAS OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LO SS ON THE EXPORT OF TRADING GOODS, IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. 3 4. ACCORDINGLY, THE MISCELLANEOUS APPLICATIONS OF T HE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 8.9.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 8 TH SEPTEMBER, 2010 COPY TO 1 ANJANEYA AQUA, D.NO.37-1-406(25), 2 ND LANE, BHAGYA NAGAR, ONGOLE 2 DCIT, CIRCLE-2(1), GUNTUR 3 THE CIT, GUNTUR 4 THE CIT(A), GUNTUR 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM