DCIT, New Delhi v. Sh. Ram Kishan Dass, Delhi

ITA 3309/DEL/2008 | 1999-2000
Pronouncement Date: 11-05-2010 | Result: Dismissed

Appeal Details

RSA Number 330920114 RSA 2008
Bench Delhi
Appeal Number ITA 3309/DEL/2008
Duration Of Justice 1 year(s) 6 month(s) 4 day(s)
Appellant DCIT, New Delhi
Respondent Sh. Ram Kishan Dass, Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 11-05-2010
Date Of Final Hearing 11-05-2010
Next Hearing Date 11-05-2010
Assessment Year 1999-2000
Appeal Filed On 06-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F DELHI) BEFORE SHRI A.D. JAIN AND SHRI K.D. RANJAN ITA NO. 3309(DEL)2008 ASSESSMENT YEAR: 1999-2000 DY.COMMISSIONER OF INCOME TAX SH. RAM KISHAN DA SS PROP. OF CENTRAL CIR. 10 NEW DELHI. V. M/S. BISHAN SAROOP RAMKISHAN 25/75 SHAKTI NAGAR DELHI-7. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJEEV MEHROTRA CIT/DR RESPONDENT BY: MS. RANO JAIN CA & SHRI VENK ATESH CHAURASIA CA ORDER PER A.D. JAIN J.M. THIS IS DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 1999-2000 TAKING THE FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF DEDUCTION U/S 80 HHC AMOUNTING TO RS. 7 34 030/- OVERLOOKING THE AMENDED PROVISIONS OF SECTION 80 HHC. 2. THE ASSESSEE CLAIMED DISALLOWANCE OF RS.8 31 066 /- U/S 80 HHC OF THE INCOME TAX ACT DECLARING SALE PROCEEDS OF SPE CIAL IMPORT LICENCE AND DUTY DRAW BACK. IT WAS STATED BEFORE THE AO THAT T HE ASSESSEE HAD NOT RECEIVED ANY DEPB AS EXPORT INCENTIVE AND THAT AS S UCH HE WAS ENTITLED TO DEDUCTION U/S 80 HHC OF THE ACT. ITA 3309(D EL)2008 2 3. INVOKING THE PROVISIONS OF THE THIRD PROVISO TO SECTION 80 HHC(3) OF THE ACT THE AO HELD THAT THE ASSESSEE HAD FAILED T O FURNISH SUFFICIENT EVIDENCE AS REQUIRED THEREUNDER. THE CLAIM OF THE ASSESSEE WAS THUS REJECTED. 4. BY VIRTUE OF THE IMPUGNED ORDER THE LD. CIT(A) DIRECTED THE AO TO ALLOW THE EXPORT BENEFIT TO THE ASSESSEE TO THE EXTENT O F RS. 7 34 030/-. WHILE DIRECTING SO THE LD. CIT(A) HELD THAT THE PROVISIO NS OF THE THIRD PROVISO TO SECTION 80 HHC (3) OF THE ACT HAD WRONGLY BEEN INVOKED BY T HE AO. AGGRIEVED THE DEPARTMENT IS IN APPEAL. 5. CHALLENGING THE IMPUGNED ORDER THE LD. DR HAS C ONTENDED THAT THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE CORRE CTLY MADE BY THE AO; THAT WHILE DOING SO THE LD. CIT(A) HAS OVERLOOKED THE AMENDED PROVISIONS OF SECTION 80HHC OF THE ACT. 6. PER CONTRA THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 7. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE LD. CI T(A). UNDENIABLY THE THIRD PROVISO TO SECTION 80 HHC(3) OF THE ACT IS AP PLICABLE TO RESTRICTIONS RELATING TO DEPB AND DFRC AS CONTAINED IN SECTIONS 28(IIID) AND 28 (IIIE) OF THE I.T. ACT. HOWEVER AS ALSO NOTED BY THE AO IN THE ASSESSMENT ORDER ITA 3309(D EL)2008 3 DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE D ID NOT RECEIVE ANY EXPORT INCENTIVE COVERED BY EITHER SECTION 28(IIIA) OR SEC TION 28(IIIE) OF THE ACT. THE ASSESSEE ADMITTEDLY HAD DECLARED THE SALE PRO CEEDS OF A SPECIAL IMPORT LICENCE. THIS IS COVERED BY SECTION 28(IIIA) OF T HE ACT. 8. FOR READY REFERENCE THE THIRD PROVISO TO SECTIO N 80 HHC(3) OF THE ACT IS REPRODUCED HEREUNDER:- PROVIDED ALSO THAT IN THE CASE OF AN ASSESSEE HAVING EXPORT TURNO VER EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEA R THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE ( C) OF THIS SUB- SECTION OR AFTER GIVING EFFECT TO THE FIRST PROVISO AS THE CASE MAY BE SHALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEAR S TO NINETY PER CENT OF ANY SUM REFERRED TO IN CLAUSE (IIID) OF SEC TION 28 THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE TOTA L TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE IF THE ASSESSE E HAS NECESSARY AND SUFFICIENT EVIDENCE TO PROVE THAT - (A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAWBACK OR THE DUTY ENTITLEMENT PASS BOOK SCHEME BEING THE DUTY REMISSION SCHEME; AND (B) THE RATE OF DRAWBACK CREDIT ATTRIBUTABLE TO THE CUS TOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWABLE UNDER THE DUTY ENTITLEMENT PASS BOOK SCHEME BEING THE DUTY REMISS ION SCHEME. 9. AGAIN FOR READY REFERENCE SECTION 28(IIIA) OF THE ACT RUNS AS FOLLOWS:- 28 (IIIA) PROFITS ON SALE OF A LICENCE GRANTED U NDER THE IMPORTS (CONTROL) ORDER 1955 MADE UNDER THE IMPORTS AND E XPORTS (CONTROL)ACT 1947 (18 OF 1947); 10. A BARE PERUSAL OF THE THIRD PROVISO TO SECTION 80 HHC (3) OF THE ACT SHOWS THAT IT DOES NOT REFER TO SECTION 28(IIIA) OF THE ACT. THIS PROVISO HAS ITA 3309(D EL)2008 4 BEEN BROUGHT INTO THE STATUTE BOOK BY THE TAXATION LAWS(AMENDMENT) ACT 2005 WITH RETROSPECTIVE EFFECT FROM 1.4.1998. TH E LD. CIT(A) HAS TAKEN INTO CONSIDERATION THIS VERY PROVISION WHILE ALLOWI NG THE CLAIM OF THE ASSESSEE. THE DEPARTMENT IS INCORRECT IN CONTENDI NG THAT THE LD. CIT(A) HAS NOT TAKEN INTO CONSIDERATION THE AMENDED PROVISIONS OF SECTION 80 HHC OF THE ACT. 11. IN VIEW OF THE ABOVE FINDING NO MERIT THEREIN THE GROUND RAISED BY THE DEPARTMENT IS REJECTED. 12. IN THE RESULT THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.05.2010. SD/- SD/- (K.D. RANJAN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.05.2010 *RM COPY FORWARDED TO: 1. DY.COMMISSIONER OF INCOME TAX CENTRAL CIR. 10 NEW DELHI. 2. SH. RAM KISHAN DASS PROP. OF M/S. BISHAN SAROOP RAMKISHAN 25/75 SHAKTI NAGAR DELHI-7. 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR