DCIT, Kollam v. M/s Lekshman & Co.,, Kollam

ITA 178/COCH/2010 | 1998-1999
Pronouncement Date: 28-02-2012

Appeal Details

RSA Number 17821914 RSA 2010
Assessee PAN AAAFL8034F
Bench Cochin
Appeal Number ITA 178/COCH/2010
Duration Of Justice 1 year(s) 11 month(s) 18 day(s)
Appellant DCIT, Kollam
Respondent M/s Lekshman & Co.,, Kollam
Appeal Type Income Tax Appeal
Pronouncement Date 28-02-2012
Appeal Filed By Department
Bench Allotted DB
Tribunal Order Date 28-02-2012
Date Of Final Hearing 28-02-2012
Next Hearing Date 28-02-2012
Assessment Year 1998-1999
Appeal Filed On 11-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE: SHRI N.R.S.GANESAN JUDICIAL MEMBER AND SHRI B.R. BASKARAN ACCOUNTANT MEMBER ITA NO.178/COCH/2010 ASSESSMENT YEAR : 1998-99 THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1 KOLLAM. M/S. LAKSHMAN & CO. KILIKOLLOOR KOLLAM-691 004. [PAN: AAAFL 8034F] (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SMT. VIJAYAPRABHA JR. DR RESPONDENT BY: SHRI A.S.NARAYANAMOORTHY CA DATE OF HEARING: 28/02/2012 DATE OF PRONOUNCEMENT: 28/02/2012 ORDER PER SHRI B.R.BASKARAN ACCOUNTANT MEMBER:- THE APPEAL OF THE REVENUE IS AGAINST THE ORDER DAT ED 11-11-2009 PASSED BY THE LD. CIT(A)-I TRIVANDRUM AND IT RELATES TO THE ASSE SSMENT YEAR 1998-99. 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 ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS COMPLETED ORIGINALLY U/S. 1 43(3) OF THE ACT ON 10-11-2000. THEREAFTER VIDE PROCEEDINGS DATED 25-07-2005 THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT ` 7 17 590/- AFTER ALLOWING DEDUCTION OF ` 24 96 411/- U/S 80HHC OF THE ACT. THE TAXATION LAWS AMENDMENT ACT 2005 HAS BRO UGHT IN CERTAIN AMENDMENTS TO S. 80HHC WITH RETROSPECTIVE EFFECT AS A RESULT OF WHICH THE ASSESSING OFFICER FELT THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S. 80HH C OF THE ACT AS PRESCRIBED IN THE I.T.A. NO.178 /COCH/2010 2 PROVISO TO THAT SECTION IN RESPECT OF DEPB RECEIPTS. ACCORDINGLY THE ASSESSING OFFICER PASSED A RECTIFICATION ORDER U/S. 154 OF THE ACT AN D REDUCED THE DEDUCTION U/S. 80HHC TO ` 12 09 579/-. AGGRIEVED BY THE SAID ORDER THE ASS ESSEE 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 O UT CONSEQUENT TO THE RETROSPECTIVE AMENDMENT BROUGHT IN SUBSEQUENTLY IN THE ACT. IN O RDER TO ARRIVE AT THIS CONCLUSION THE LD. CIT(A) PLACED RELIANCE ON THE DECISION OF T HE COCHIN BENCH OF THE INCOME TAX APPELLATE TRIBUNAL IN THE CASE OF JOHNSON G. OOMMEN KOTTARAKARS VS. DCIT IN I.T.A. NO. 463/COCH FOR ASSESSMENT YEAR 1999-2000 AND ALSO IN THE CASE OF INDIA FOODS EXPORT VS. DCIT IN I.T.A. NOS. 133 & 134/COCH/2008. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE 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 READILY 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 MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATI ON IN ACCORDANCE 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 I.T.A. NO.178 /COCH/2010 3 EXPORTS SUPRA. HENCE IN THE INTEREST OF NATURAL J USTICE WE ARE OF THE VIEW THAT THE ISSUE OF TAXABILITY AS WELL AS DEDUCTION U/S. 80HHC IN RESPECT OF DEPB RECEIPTS NEEDS TO BE CONSIDERED AFRESH IN THE LIGHT OF THE DECISION O F THE 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 DIRECTION 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 ON 28-02-2012 - (N.R.S.GANESAN) (BR BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER ERNAKULAM DATED: 28TH FEBRUARY 2012 GJ COPY TO 1 M/S. LAKSHMAN & CO. KILIKOLLOOR KOLLAM-691 004. 2 THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1 T RIVANDRUM. 3 THE COMMISSIONER OF INCOME-TAX(APPEALS)-I TRIVAN DRUM. 4 THE COMMISSIONER OF INCOME-TAX TRIVANDRUM. 5. THE DR ITAT COCHIN BENCH. 6 GUARD FILE. BY ORDER A SSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH