M/s Vorka International, Moradabad v. ITO, Moradabad

ITA 744/DEL/2010 | 1999-2000
Pronouncement Date: 20-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 74420114 RSA 2010
Assessee PAN AAFFV9765Q
Bench Delhi
Appeal Number ITA 744/DEL/2010
Duration Of Justice 2 month(s) 1 day(s)
Appellant M/s Vorka International, Moradabad
Respondent ITO, Moradabad
Appeal Type Income Tax Appeal
Pronouncement Date 20-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted H
Tribunal Order Date 20-04-2010
Date Of Final Hearing 20-04-2010
Next Hearing Date 20-04-2010
Assessment Year 1999-2000
Appeal Filed On 18-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : H NEW DELHI) BEFORE SHRI A.D. JAIN J UDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA. NO.744/DEL./2010 (ASSESSMENT YEAR : 1999-2000) M/S VORKA INTERNATIONAL VS. ITO WARD 1(1) BARWALAN ROAD NEW DELHI. KATGHAR MORADABAD (PAN/GIR NO.AAFFV9765Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SUKHESH JAIN SR.DR ORDER PER A.K. GARODIA AM THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF THE CIT(A) BAREILLY DATED 19.02.2008 FOR AY 1999-2000. THE GROUNDS RAI SED BY THE ASSESSEE READ AS UNDER: (1) (A)THAT HE LD.CIT(A) HAS ERRED IN LAW AND FACT S IN CONFIRMING THE EXCLUSION OF DEPB FROM BUSINESS PROFIT FOR ALLOWABL E DEDUCTION U/S 80HHC. (B) THAT THE LD.CIT(A) HAS ERRED IN LAW AND FACTS I N CONFIRMING THE EXCLUSION OF RS.20 89 535/- ON ACCOUNT OF DEPB FROM EXPORT BUSINESS PROFIT AND NOT THE PROFIT ON SALES OF ENTITLEMENT I .E. AMOUNT OF SALE OF ENTITLEMENT OVER THE VALUE OF DEPB LICENCES FOR WOR KING OF DEDUCTION U/S 80HHC. (C) THAT THE LD.CIT(A) HAS ERRED IN LAW AND FACTS I N CONFIRMING THE ACTION OF AO TO NOT ALLOW THE DEDUCTION US 80HHC ON DEPB R ECEIPT WHEN THE EXPORTS TURNOVER EXCEEDS RS.10 CRORES. (D) THAT THE LD.CIT(A) HAS ERRED IN LAW IN NOT APPR ECIATING THAT THE EXCLUSION OF DEPB AMOUNT FROM ALLOWANCE OF DEDUCTIO N U/S 80HHC FOR THOSE ASSESSEE HAVING EXPORT TURNOVER OF OVER R S.10 CRORES IS DISCRIMINATORY AND UNLAWFUL CONSIDERING THE FACT TH AT THE ASSESSEE HAVING EXPORTS TURNOVER UP TO RS.10 CRORES ARE ENTI TLED FOR DEDUCTION U/S 80HHC OF I.T.ACT 1961 ON THE DEPB AMOUNT. ITA NO.744/DEL./2010 (AY : 1999-2000) 2 (E) THAT THE LD.CIT(A) HAS ERRED IN NOT PRONOUNCING THAT THE RETROSPECTIVE CLAUSE OF TAXATION LAWS AMENDMENT ACT 2005 IN RESP ECT OF DEPB RECEIPT FOR DEDUCTION U/S 80HHC IS BAD IN LAW AND H ENCE UNCONSTITUTIONAL. (2) THAT THE LD.CIT(A) HAS ERRED IN LAW AND FACTS I N NOT DECIDING UPON ON ASSESSEES GROUND OF APPEAL NO.1(III) WHICH READS A S UNDER: THAT THE AO HAS ERRED IN LAW AND FACTS IN EXCLUDI NG A SUM OF RS.20 89 535/- ON ACCOUNT OF DEPB FROM EXPORT BUSIN ESS PROFIT AND NOT THE PROFIT ON SALE OF ENTITLEMENT I.E. SALE OF ENTI TLEMENT OVER THE VALUE OF LICENCES FOR WORKING OF DEDUCTION U/S 80HHC. (3) THAT THE LD.CIT(A) HAS ERRED IN LAW AND FACTS I N NOT DECIDING ON THE GROUND NO.2 OF THE ASSESSEE THAT AD HOC DEDUCTION O F 10% ON INTEREST INCOME BE ALLOWED AS PER BOARD CIRCULAR NO.621 DATE D 19.12.91. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING BUT A WRITTEN SUBMISSION DATED 13.4.2010 FROM THE LD.COUN SEL OF THE ASSESSEE WAS RECEIVED AND IS PLACED ON RECORD. AS PER THIS WRITTEN SUBMI SSION IT HAS BEEN SUBMITTED THAT GROUND NO.3 IS NOT PRESSED AND ACCORDINGLY THE SAME IS RE JECTED AS NOT PRESSED. REGARDING REMAINING GROUNDS IT HAS BEEN SUBMITTED THAT THE ISSUE INVOLVED IS REGARDING ALLOWABILILTY OF DEDUCTION U/S 80HHC FOR DEPB BENEF ITS. IT HAS BEEN SUBMITTED THAT THIS ISSUE IS NOW COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPORTS AS REPORTED IN 318 ITR (AT) 87 (SB). THE ASSESSEE HAS ALSO SUBMITTED IN THE WRITTEN SUBMISSION THAT AS PER TR IBUNAL DECISION RENDERED IN THE CASE OF ATOZ INDUSTRIES VS. ACIT IN ITA 133/DEL./08 DATED 1 6.10.2009 SIMILAR ISSUE WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE AO WITH A DIRECTION TO RECOMPUTE THE DEDUCTION ALLOWABLE U/S 80HHC IN ACCORDANCE WITH TH IS DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPORTS (SU PRA). LD.DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE ARE IN AGREEMENT WITH THE WRITTEN SUBMISSION OF LD.AR OF THE ASSESSEE THAT TH IS ISSUE IS REQUIRED TO BE RESTORED BACK TO THE FILE OF THE AO FOR A FRESH DECISION IN THE L IGHT OF THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPO RTS (SUPRA). ACCORDINGLY WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE REGARDI NG QUANTIFICATION OF DEDUCTION ITA NO.744/DEL./2010 (AY : 1999-2000) 3 ALLOWABLE TO THE ASSESSEE U/S 80HHC WITH REGARD TO THE DEPB BENEFITS AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR A FRESH DECIS ION ON THIS ASPECT IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDE RED IN THE CASE OF TOPMAN EXPORTS (SUPRA). THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NOS.1 & 2 STAND ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN OPEN COURT ON THE DATE OF HE ARING I.E. 20.04.2010. SD/- SD/- (A.D. JAIN) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED APRIL 20 2010. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR/ITAT ITA NO.744/DEL./2010 (AY : 1999-2000) 4