NOBLE HOUSE, v. ACIT,

MA 868/MUM/2009 | 2003-2004
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 86819924 RSA 2009
Assessee PAN AACFN3435G
Bench Mumbai
Appeal Number MA 868/MUM/2009
Duration Of Justice 4 month(s) 22 day(s)
Appellant NOBLE HOUSE,
Respondent ACIT,
Appeal Type Miscellaneous Application
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 14-05-2010
Assessment Year 2003-2004
Appeal Filed On 23-12-2009
Judgment Text
M.A. NO. 868/M/09 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI A.L. GEHLOT (AM) AND SMT. ASHA VIJAYAR AGHAVAN (JM) M.A. NO. 868/MUM/2009 (ARISING OUT OF ITA NO. 6018/MUM/2008 ASSESSMENT YEAR-2003-04 M/S. NOBLE HOUSE 105/109 RAVIKIRAN ESTATE OPP. LINK ROAD ANDHERI(W) MUMBAI-400 053 PAN - AACFN3435G VS. THE ACIT 20(2) 612 PIRAMAL CHAMBERS LALBAUG MUMBAI-400 012 (APP LICANT ) (RESPONDENT) APPLICANT BY: SHRI PRADEEP KAPASI RESPONDENT BY: SHRI NAVIN GUPTA O R D E R PER SMT. ASHA VIJAYARAGHAVAN (JM) THE ORDER PASSED BY THE TRIBUNAL IN ITA 6018/M/07 THE TRIBUNAL HAS OBSERVED AS UNDER: 10. THE GROUNDS NO. 7 & 8 READS AS FOLLOWS: THE CIT(A) ERRED IN DELETING THE DISALLOWANCE OF 10 % OF EXPORT INCENTIVE WHILE COMPUTING DEDUCTION U/S.80HH C. THE CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE DISALLOWANCE OF 10% OUT OF INCENTIVE IS ABSOLUTELY INCONSONANCE WITH THE SPIRIT OF PROVISIONS OF SEC. 80HHC(3) OF THE I.T. ACT. 11. IN THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS FOUND THAT IN THE COMPUTATION OF DEDUCTION U/S.80HH C OF THE I.T.ACT 1961 THE APPELLANT HAD REDUCED 10% OF THE EXPORT INCENTIVES AMOUNTING TO RS.27 89 114/- F ROM THE INDIRECT COSTS. THE ASSESSING OFFICER DID NOT ACCEPT THIS AS HE FOUND THAT THERE IS NO EVIDENCE IN THE P ROFIT & LOSS A/C TO SHOW THAT THE EXPENSES HAVE BEEN INCURR ED FOR EARNING THE EXPORT INCENTIVES. ACCORDINGLY 10 % OF M.A. NO. 868/M/09 THE EXPORT INCENTIVES WERE NOT REDUCED FROM THE IND IRECT COSTS. 12. BEFORE THE CIT(A) THE APPELLANT SUBMITTED THAT THE SPECIAL BENCH DECISION IN THE CASE OF SURENDRA ENGINEERING CORPORATION VS ACIT 78 TTJ 347 SUPPORT S ITS CLAIM. THE CIT(A) FOLLOWED THE DECISION OF THE SPECIAL BENCH SUPRA AND ALLOWED THE APPELLANTS APPEAL ON T HIS GROUND. 13. THIS ISSUE IS COVERED BY THE DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF HERO EXPORT VS CI T 292 ITR 571 IN WHICH IT HAS BEEN HELD AS UNDER: THAT THE ASSESSEE WAS NOT ENTITLED TO DEDUCT TEN PERCENT OF EARNING FROM EXPORT INCENTIVES ETC. AS EXPENSES FROM THE INDIRECT COST FOR THE PURPOSE OF CALCULATION OF EXPORT PROFITS. 14. RESPECTFULLY FOLLOWING THE DECISION OF THE P&H HIGH COURT THIS GROUND OF THE REVENUE IS ALLOWED. 2. THE ASSESSEE HAS NOW FILED AN M.A STATING THAT T HE DECISION OF THE PUNJAB & HARYANA HIGH COURT REFERRED TO AND FOLLOWE D BY THE TRIBUNAL IN ITS ORDER HAVE SINCE BEEN REVERSED BY THE APEX COUR T IN THE CASE OF HERO EXPORT VS CIT 295 ITR 454. IN THIS VIEW OF THE MAT TER THE PARA 13 & 14 OF THE TRIBUNAL ORDER STANDS AMENDED AND WILL READ AS UNDER: 13. THIS ISSUE IS COVERED BY THE DECISION OF THE A PEX COURT IN THE CASE OF HERO EXPORT VS CIT 295 ITR 454 WHEREIN THE APEX COURT REVERSING THE DECISION OF THE PUNJAB & HARYANA HIGH COURT UPHELD THE DEDUCTION OF 10% FROM THE EXPORT INCENTIVES TOW ARDS ALLOCATION OF EXPENSES FOR EARNING THE INCENTIVE. 14. RESPECTFULLY FOLLOWING THE DECISION OF THE APEX COURT THIS GROUND OF THE REVENUE IS DISMISSED. 3. IN THE RESULT PARA 21 SHALL BE AMENDED TO READ AS UNDER: M.A. NO. 868/M/09 21. IN THE RESULT DEPARTMENTAL APPEAL IS DISMISS ED. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 14 TH DAY OF MAY 2010 SD/- SD/- (A.L. GEHLOT) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 14 TH MAY 2010 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI M.A. NO. 868/M/09 DATE INITIALS 1 DRAFT DICTATED ON: 10.5.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 10. 5.2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/ PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______