Jobrun G. Varghese, Kollam v. ACIT, Kollam

ITA 997/COCH/2008 | 2001-2002
Pronouncement Date: 19-05-2010

Appeal Details

RSA Number 99721914 RSA 2008
Assessee PAN AAZPV5192P
Bench Cochin
Appeal Number ITA 997/COCH/2008
Duration Of Justice 1 year(s) 5 month(s) 9 day(s)
Appellant Jobrun G. Varghese, Kollam
Respondent ACIT, Kollam
Appeal Type Income Tax Appeal
Pronouncement Date 19-05-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 19-05-2010
Date Of Final Hearing 17-05-2010
Next Hearing Date 17-05-2010
Assessment Year 2001-2002
Appeal Filed On 10-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.997/COCH/2008 ASSESSMENT YEAR:2001-02 JOBRUN G VARGHESE KOLLAM. PA NO.AAZPV 5192P VS. THE ASST. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE KOLLAM. (APPELLANT) ( RESPONDENT ) I.T.A.NO.998/COCH/2008 ASSESSMENT YEAR:2000-01 JAMES G. OOMMEN KOLLAM. PA NO.AAAPO 9944R VS. THE ASST. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE KOLLAM. (APPELLANT) (RESPONDE NT) & I.T.A.NO.999/COCH/2008 ASSESSMENT YEAR:2000-01 BABU OOMMEN KOLLAM. PA NO.AADPO 7373B VS. THE ASST. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE KOLLAM. (APPELLANT) (RESPONDENT) APPELLANT S BY SHRI A.S. NARAYANAMOORTHY CA RE SPONDENT S BY SHRI M.K. GOPINATHAN JR.DR O R D E R PER N.VIJAYAKUMARAN J.M: THESE APPEALS ARE FILED BY THREE SEPARATE ASSESSES . SINCE THE ISSUE BEING COMMON IN ALL THESE THREE APP EALS WE ITA NOS. 997 TO 999/COCH/2008 2 PROCEED TO DISPOSE OF THESE APPEALS BY A COMMON AND CONSOLIDATED ORDER FOR THE SAKE OF BREVITY AND CON VENIENCE. 2. THE ONLY ISSUE RAISED IN ALL THESE THREE APPEALS IS ON THE MAINTAINABILITY OF 154 RECTIFICATION AGAINST QU ALIFICATION OF INCOME FOR THE PURPOSE OF 80HHC DEDUCTION WITH R ELEVANCE TO DEPB SCHEME. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PRECEDE NTS RELIED UPON BY THE PARTIES. THE LD. COUNSEL FOR THE ASS ESSEE WOULD SUBMIT THAT FOR THE PURPOSE OF SECTION 80HHC DEDUCTION THE DETAILS NECESSARY TO DECIDE ONE OF T HE TWO OPTIONS FOR CLAIMING DEDUCTION U/S.80HHC WAS NOT AV AILABLE TO THE ASSESSING OFFICER AS PER THE RECORDS AVAILAB LE BEFORE HIM. 4. WE FIND THAT ON IDENTICAL SET OF FACTS THE TRIB UNAL VIDE ITS ORDER DATED 08-07-2008 IN ITA NO.463/COCH/2007 IN THE CASE OF ONE SHRI JOHNSON G. OOMMEN FOR THE ASSESSME NT YEAR 1999-2000 FOUND THAT THE ASSESSEE WAS TO BE AS KED ABOUT THE OPTION AS ADMITTEDLY THE TURN OVER EXCEED S RS.10 CRORES. THEREFORE THE ISSUE AS SUCH REQUIRES DEL IBERATIONS ITA NOS. 997 TO 999/COCH/2008 3 AND IS DEBATABLE AND IT IS WELL SETTLED LAW THAT A DEBATABLE ISSUE CANNOT BE RECTIFIED U/S.154 OF THE ACT. WHI LE GIVING SUCH A FINDING THE TRIBUNAL RELIED ON THE DECISION OF THE ASHWAMEDH ENTERPRISES (ITA N O .608/C OCH /2006 DATED 24-8- 2007) WHEREIN IN PARAGRAPH 9 INTERNAL PAGE 3 THE COCHIN BENCH BY FOLLOWING THE DECISION OF THE HONBLE SUPR EME COURT IN THE CASE OF VOKART BROTHERS 82 ITR 50 FOUND THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REV ENUE. FOLLOWING THAT DECISION AS WELL AS THE RECENT DECIS ION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. TTK PRESTIGE LTD. 322 ITR 390 WHEREIN THE POWER U/S.154 WAS VISUALIZED AND DISCUSSED IN RESPECT OF SPECIAL DEDU CTION U/S.80IA FOR THE QUALIFICATION OF DUTY DRAW BACK RE CEIPTS AND FINALLY THE HONBLE HIGH COURT HELD THAT RECTIFICAT ION PROCEEDINGS NOT PERMISSIBLE. 5. THE DIRECT DECISION OF THE TRIBUNAL IN ONE OF SU CH CASES IN THE CASE OF LOT GUM S & CHEMICALS VS. ITO (2008) 116 TTJ (JODH) 542 WHEREIN THE HONBLE TRIBUNAL WITH RELEVANCE TO THE SAME ISSUE OF DEPB CREDITS WITH RELEVANCE TO THE EXPORT TURNOVER LIMIT ON AN IDENTICAL SET OF FACTS FOUND THAT ASSESSING OFFICER WAS PRECLUDED FROM MAKING ANY AMENDMENT IN THE INTIMATION AND THE DEBATABLE ISSUE IS NOT ITA NOS. 997 TO 999/COCH/2008 4 AVAILABLE FOR RECTIFICATION AND ULTIMATELY THE TRIB UNAL SET ASIDE THE RECTIFICATION ORDER DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. 6. FOLLOWING THE ABOVE DECISIONS WE HAVE NO HESITA TION IN SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW A ND ALLOW THE APPEAL OF THESE THREE INDEPENDENT ASSESSES FOR THE RESPECTIVE YEARS AS CAPTIONED ABOVE. 7. IN THE RESULT ALL THE THREE APPEALS ARE ALLOWED . SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM DATED THE 19 TH MAY 2010. PM. COPY FORWARDED TO: 1. JOBRUN G VARGHESE LOURDES MATHA CASHEW INDUSTRIES PUTHOOR P.O. KOTTARAKKARA KOLLAM. 2. JAMES G. OOMMEN ST. PAULS CASHEW INDUSTRIES PUTH OOR PO. KOLLAM. 3. BABU OOMMEN ALPHONSA CASHEW INDUSTRIES PUTHOOR PO . KOLLAM. 4. THE AACIT CENTRAL CIRCLE KOLLAM. 5. CIT(A)-III KOCHI. 6. CIT CENTRAL KOCHI. 7. D.R. BY ORDER SD/- ASSISTANT REGISTRAR ITA NOS. 997 TO 999/COCH/2008 5