Commex Corporation, Kolkata v. ACIT, Circle - 34, Kolkata, Kolkata

ITA 2235/KOL/2010 | 2000-2001
Pronouncement Date: 14-03-2011

Appeal Details

RSA Number 223523514 RSA 2010
Assessee PAN AACFC4567E
Bench Kolkata
Appeal Number ITA 2235/KOL/2010
Duration Of Justice 2 month(s) 25 day(s)
Appellant Commex Corporation, Kolkata
Respondent ACIT, Circle - 34, Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 14-03-2011
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 14-03-2011
Assessment Year 2000-2001
Appeal Filed On 20-12-2010
Judgment Text
ITA 2235/K/2010 COMMEX CORPORATION AY 2000-01 SMC(B) IN THE INCOME TAX APPELLATE TRIBUNAL SMC(B) BENCH : KOLKATA () BEFORE ) [BEFORE HONBLE SRI MAHAVIR SINGH JM] / I.T.A NO. 2235/KOL/2010 !' !' !' !'/ // / ASSESSMENT YEAR : 2000-01 COMMEX CORPORATION VS ASSISTANT COMMISSIONER OF INCOME-TAX (PAN-AACFC 4567 E) CIRCLE-34 KOLKATA. ( $% /APPELLANT ) (&'$%/ RESPONDENT ) FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI P. P. SARKAR () / ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-XX KOLKATA IN APPEAL NO.147/CIT(A)-XX/CIR-36/07-08/KOL VIDE ORDER DATED 17.09.2010. THE ASSESSMENT WAS FRAMED BY ACIT CIRCLE-36 KOLKATA U /S 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASS ESSMENT YEAR 2000-01 VIDE HIS ORDER DATED 27.03.2003. 2. THE FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE I S AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN D ISALLOWING DEDUCTION U/S. 80HHC. FOR THIS THE ASSESSEE HAS RAISED THE FOLLOWING GRO UND NO.1: 1.FOR THAT LD. CIT(A) SHOULD HAVE HELD THAT THE AS SESSEE IS ENTITLED TO DEDUCTION U/S. 80HHC OF THE I. T. ACT61 IN RESPEC T OF RS.3 16 826/- RECEIVED ON 30.03.2000 AFTER DISCOUNTING THE INVOICE NO.133/99 -2000 DT. 15.03.2000 FROM BANK OF MADURA LTD. 3. I HAVE HEARD LD. SR DR AND GONE THROUGH FACTS AN D CIRCUMSTANCES OF THE CASE. I FIND THAT THE ASSESSING OFFICER NOTED FROM THE BANK STATEMENT OF ICICI BANK THAT EXPORT PROCEEDS OF RS.3 16 826/- IS DRAWN AGAINST INVOICE NO.133/99-2000 DATED 15.3.2000 ON 27.10.2000 AND ACCORDING TO HIM THIS IS BEYOND THE PRESCRIBED PERIOD OF SIX MONTHS. ACCORDINGLY HE DISALLOWED DEDUCTION AS NOT QUALIFI ED U/S. 80HHC OF THE ACT. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE CIT (A). THE CIT(A) ALSO CONFIRMED THE ITA 2235/K/2010 COMMEX CORPORATION AY 2000-01 2 ACTION OF THE ASSESSING OFFICER BY STATING THAT I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE MATERIAL ON RECORD. I FI ND FROM THE DOCUMENTS FILED BEFORE ME THAT THE APPELLANT ACTUALLY DISCOUNTED THE PROCEEDS OF INVOICE NO. 133/99-2000 ON 30.03.2000 THROUGH THE BANK OF MADURA LTD. BUT TH E EXPORT PROCEEDS WERE NOT RECEIVED IN FOREIGN EXCHANGE. AS THE A.O HAS POINTED OUT T HE EXPORT PROCEEDS WERE ACTUALLY REALIZED ON 27.10.2000 IN THE ICICI BANK. IN THIS FACTUAL BACKGROUND THE A.O. HAS RIGHTLY HELD THAT THE EXPORT PROCEEDS OF RS.3 16 87 6/- AGAINST INVOICE NO.133/99-2000 DATED 15.03.2000 WAS REPATRIATED TO INDIA BEYOND TH E PRESCRIBED PERIOD OF 6 MONTHS; AND THEREFORE DOES NOT QUALIFY FOR DEDUCTION U/S. 80HHC. GROUND NO.1 IS DISMISSED. AGGRIEVED ASSESSEE PREFERRED SECOND APPEAL BEFORE TRIBUNAL. 4. I FIND THAT CIT(A) HAS NOTED THE FACT THAT THE A SSESSEE HAS FILED SOME DOCUMENTS SHOWING THAT IT HAS DISCOUNTED PROCEEDS AND INVOICE NO.133/99-2000 ON 30.3.2000 THROUGH BANK OF MADURA LTD. BUT THE FACT THAT WHEN THESE PROCEEDS WERE RECEIVED WHETHER ON OR BEFORE 31.3.2000 THIS IS NOT CLEAR. ACCORDINGLY I AM OF THE VIEW LET THIS ASPECT BE EXAMINED BY THE ASSESSING OFFICER AND DEC IDE ACCORDINGLY. THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES. 5. THE NEXT ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST ALLOWANCE OF DEDUCTION U/S. 80G. FOR THIS ASSESSEE HAS RAISED THE FOLLOW ING GROUND NO.2: 2. FOR THAT LD. CIT(A) SHOULD HAVE ALLOWED DEDUCTIO N OF RS.32 038/- BEING 50% OF DONATION OF RS.64 077/- CLAIMED U/S. 80G OF THE I. T. ACT 1961. . 6. AT THE OUTSET THE LD. SR. DR STATED THAT THIS G ROUND WAS NOT PRESSED AT THE TIME OF HEARING BEFORE CIT(A). HENCE CIT(A) HAS RIGHTL Y DISMISSED THE SAME. 7. I FIND FROM RECORDS THAT THE ASSESSEE HAS CLAIME D OF DONATIONS OF RS. 64 007/- AS DEDUCTION BUT THE AO RESTRICTED THE ALLOWANCE AT 10% AND NOT ALLOWED 50% OF RS.64 007/- AS CLAIMED. I AM OF THE VIEW ONCE THE DONATION IS MADE WHICH IS AN ADMITTED FACT THE ASSESSEE IS ENTITLED FOR DEDUCTI ON AS PER LAW WHETHER THE SAME FALLS UNDER 50% OR 10%. ACCORDINGLY ASSESSING OFFICER H AS TO ADJUDICATE THIS ISSUE ON ITA 2235/K/2010 COMMEX CORPORATION AY 2000-01 3 MERITS AND PASS A SPEAKING ORDER AND ACCORDINGLY DE CIDE. THIS ISSUE OF THE ASSESSEES APPEAL IS SET ASIDE AND ALLOWED FOR STATISTICAL PUR POSES. 8. THE NEXT ISSUE IS REGARDING CHARGING OF INTEREST U/S. 234B OF THE ACT. FOR THIS THE ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.3: FOR THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE L D. CIT(A) SHOULD HAVE DELETED THE INTEREST OF RS.9312/- CHARGED BY ITO U /S. 234B OF I. T. ACT61 WHEN THE ASSESSEE FILED NIL RETURN & CLAIMED REFUND OF TDS AMOUNTING RS.4209/-. 9. AFTER HEARING THE LD. DR AND GOING THROUGH THE F ACTS I AM OF THE VIEW THAT THIS CHARGING OF INTEREST IS CONSEQUENTIAL IN NATURE AND ASSESSING OFFICER WILL CHARGE ACCORDINGLY. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 11. ORDER PRONOUNCED IN OPEN COURT ON 14 TH DAY OF MARCH 2011. SD/- (MAHAVIR SINGH) JUDIC IAL MEMBER ( *+ *+ *+ *+) )) ) DATED 14 TH DAY OF MARCH 2011 - ./ 0 JD.(SR.P.S.) () 1 &2 3(2!4- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT M/S. COMMEX CORPORATION 17 BRABOURNE ROAD KOLKATA-700 001. 2 &'$% / RESPONDENT ACIT CIRCLE-34 KOLKATA. 3 . ) / THE CIT(A) KOLKATA 4. ) ( )/ CIT KOLKATA 5 . ;< & / DR KOLKATA BENCHES KOLKATA '2 &/ TRUE COPY ()=/ BY ORDER / /ASSTT. REGISTRAR .