DCIT, Kollam v. Sri O.Abraham, Kottarakkara

ITA 176/COCH/2010 | 1999-2000
Pronouncement Date: 29-03-2012

Appeal Details

RSA Number 17621914 RSA 2010
Assessee PAN AAAPO8501E
Bench Cochin
Appeal Number ITA 176/COCH/2010
Duration Of Justice 2 year(s) 19 day(s)
Appellant DCIT, Kollam
Respondent Sri O.Abraham, Kottarakkara
Appeal Type Income Tax Appeal
Pronouncement Date 29-03-2012
Appeal Filed By Department
Bench Allotted DB
Tribunal Order Date 29-03-2012
Date Of Final Hearing 28-03-2012
Next Hearing Date 28-03-2012
Assessment Year 1999-2000
Appeal Filed On 11-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE S/SHRI N.R.S.GANESAN JM AND B.R.BASKAR AN AM I.T.A. NO. 176 /COCH/2010 ASSESSMENT YEAR :1999-2000 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1 KOLLAM. LATE SHRI O. ABRAHAM REPRESENTED BY L/HS. EMMANUEL CASHEW INDUSTRIES CHEPRA KOTTARAKARA KOLLAM [PAN: AAAPO 8501E] (REVENUE-APPELLANT) (ASSESSEE- RESPONDENT) REVENUE BY : SMT. VIJAYAPRABHA JR. DR ASSESSEE BY : SHRI A.S. NA RAYANAMOORTHY CA DATE OF HEARING 28/03/2012 DATE OF PRONOUNCEMENT 29/03/2012 O R D E R PER B.R.BASKARAN ACCOUNTANT MEMBER: THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 09-11-2009 PASSED BY THE LD. CIT(A)-I TRIVANDRUM AND IT RELATES TO T HE ASSESSMENT YEAR 1999-2000.. 2. THE REVENUE IS ASSAILING THE DECISION OF THE LD. CIT(A) IN HOLDING THAT THE RECTIFICATION ORDER PASSED U/S. 154 OF THE ACT TO W ITHDRAW DEDUCTION U/S. 80 HHC ON DEPB RECEIPTS IS NOT VALID. 3. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. THE ASSESSEE IS ENGAGED IN PROCESSING AND EXPORTING OF CASHEWS. THE TAXATION LAWS AMENDMENT ACT 2005 HAS BROUGHT IN CERTAIN AMENDMENTS TO S. 80HHC WITH RETR OSPECTIVE EFFECT AS A RESULT OF WHICH THE ASSESSING OFFICER FELT THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S. 80HHC OF THE ITA NO. 176/COCH/ 2010 2 ACT AS PRESCRIBED IN THE PROVISO TO THAT SECTION I N RESPECT OF DEPB RECEIPTS. ACCORDINGLY THE ASSESSING OFFICER PASSED A RECTIFI CATION ORDER U/S. 154 OF THE ACT AND REDUCED THE DEDUCTION U/S. 80HHC TO `69 97 433/-. AGGRIEVED BY THE SAID ORDER THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) WHO CANCELLED THE RECTIFICATION ORDER BY HOLDING THAT THE RECTIFICATION PROCEEDINGS U/S. 154 OF THE ACT CANNOT BE CARRIED OUT CONSEQUENT TO THE RETROSPECTIVE AMENDMENT BROUGHT I N SUBSEQUENTLY IN THE ACT. IN ORDER TO ARRIVE AT THIS CONCLUSION THE LD. CIT(A) PLACED RELIANCE ON THE DECISION OF THE COCHIN BENCH OF THE INCOME TAX APPELLATE TRIBUNAL IN THE C ASE OF JOHNSON G. OOMMEN KOTTARAKARS VS. DCIT IN I.T.A. NO. 463/COCH FOR ASS ESSMENT YEAR 1999-2000 AND ALSO IN THE CASE OF INDIA FOODS EXPORT VS. DCIT IN I.T.A. N OS. 133 & 134/COCH/2008. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVEN UE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS. BOTH THE PARTIES AGREED THAT THE DECISION RENDERED BY THE ITAT COCHIN BENCH REFERRED SUPRA HAS SINCE BEEN REVERSED BY THE HONBLE JURISDICTIONAL KERALA HIGH COURT MEANING T HEREBY THE RECTIFICATION PROCEEDINGS U/S 154 OF THE ACT ARE VALID IN VIEW OF THE SUBSEQU ENT AMENDMENTS THAT ARE BROUGHT INTO THE ACT. HOWEVER BOTH THE PARTIES COULD NOT READI LY GIVE THE RELEVANT CITATION THEREOF. 5. HOWEVER THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE REGARDING TAXABILITY AS WELL AS DEDUCTION U/S 80HHC IN RESPEC T OF DEPB RECEIPTS HAS SINCE BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VIDE ITS ORDER DATED 09-02-2012 AND ACCORDINGLY HE PRAYED THAT THE MATTE R MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION IN ACCORD ANCE WITH THE DECISION OF THE HONBLE SUPREME COURT STATED ABOVE. 6. WE NOTICE THAT THE ORDER OF THE LD. CIT(A) N EEDS TO BE REVERSED IN VIEW OF THE DECISION BY THE HONBLE JURISDICTIONAL KERALA HIGH COURT ON THE IMPUGNED ISSUE. HOWEVER WE FIND MERIT IN THE PRAYER OF THE LD COUN SEL FOR THE ASSESSEE. THE ISSUE OF TAXABILITY AS WELL AS DEDUCTION U/S 80HHC WAS A MAT TER OF DISPUTE ALL ALONG AND THE SAME HAS SINCE BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS ITA NO. 176/COCH/ 2010 3 SUPRA. HENCE IN THE INTEREST OF NATURAL JUSTICE WE ARE OF THE VIEW THAT THE ISSUE OF TAXABILITY AS WELL AS DEDUCTION U/S. 80HHC IN RESPE CT OF DEPB RECEIPTS NEEDS TO BE CONSIDERED AFRESH IN THE LIGHT OF THE DECISION OF T HE HONBLE SUPREME COURT REFERRED SUPRA. ACCORDINGLY WE SET ASIDE THE IMPUGNED ORDE R OF THE LD. CIT(A) AND IN THE INTEREST OF JUSTICE RESTORE THE ISSUE OF TAXABILIT Y AND DEDUCTION U/S 80-HHC IN RESPECT OF DEPB RECEIPTS TO THE FILE OF THE AO WITH A DIRECTIO N TO CONSIDER THE SAME AFRESH IN ACCORDANCE WITH THE DECISION OF THE HONBLE SUPREME COURT REFERRED SUPRA. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 29-03-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 29TH MARCH 2012 GJ COPY TO: 1. LATE SHRI O. ABRAHAM REPRESENTED BY L/HS. EMMA NUEL CASHEW INDUSTRIES CHEPRA KOTTARAKARA KOLLAM. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1 KOLLAM.. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I TRIV ANDRUM.. 4. THE COMMISSIONER OF INCOME-TAX TRIVANDRUM. 5. D.R. I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE . BY ORDER (ASSISTANT REGISTRAR) I.T.A.T COCHIN