M/s Anjaneya Aqua, Ongole v. The DCIT, Circle-2(1), Guntur

MA 88/VIZ/2010 | 2001-2002
Pronouncement Date: 08-09-2010 | Result: Allowed

Appeal Details

RSA Number 8825324 RSA 2010
Assessee PAN AAGFA2630L
Bench Visakhapatnam
Appeal Number MA 88/VIZ/2010
Duration Of Justice 1 month(s) 16 day(s)
Appellant M/s Anjaneya Aqua, Ongole
Respondent The DCIT, Circle-2(1), Guntur
Appeal Type Miscellaneous Application
Pronouncement Date 08-09-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 08-09-2010
Assessment Year 2001-2002
Appeal Filed On 23-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER MA NOS.87&88/VIZAG/2010 (ARISING OUT OF ITA NOS.363/VIZAG/2008 & ITA NO.377/VIZAG/2009 RESPECTIVELY) ASSESSMENT YEARS : 2000-01 & 2001-02 RESPECTIVELY M/S. ANJANEYA AQUA ONGOLE DCIT CIRCLE-2(1) ONGOLE (APPELLANT) VS. (RESPONDENT) PAN NO.AAGFA 2630L DEPARTMENT BY: SHRI D.S. SUNDER SINGH DR ASSESSEE BY: N O N E ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER:- THESE MISCELLANEOUS APPLICATION ARE PREFERRED BY THE ASSESSEE ON THE GROUND THAT TRIBUNAL HAS OBSERVED IN ITS PARA-5 & P ARA-6 THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF AMENDMENT BROUGHT IN SECTION 80HHC OF THE I.T. ACT WHEREAS THE FACTS ON RECORD ARE THAT THE A SSESSMENT WAS RE-OPENED CONSEQUENT UPON THE DECISION OF THE SUPREME COURT I N M/S. IPCA LABORATORY VS. CIT WHERE THE APEX COURT HAD OBSERVED THAT ONC E THE EXPORT HOUSE HAD INCURRED LOSS ON THE EXPORT OF TRADING GOODS IT WA S NOT ENTITLED TO ANY DEDUCTION U/S 80HHC. 2. THESE MISCELLANEOUS APPLICATIONS CAME UP FOR HEA RING ON 3 RD OF SEPTEMBER 2010 BUT NONE APPEARED ON BEHALF OF THE ASSESSEES. THE ASSESSEE HOWEVER FILED THE WRITTEN SUBMISSIONS AND THE SAME WERE TAKEN ON RECORD. ACCORDINGLY THE REVENUE WAS HEARD. 3. WE HAVE CAREFULLY EXAMINED THE MISCELLANEOUS APP LICATIONS WRITTEN DOCUMENTS VIS--VIS THE ORDER OF THE TRIBUNAL AND FROM A CAREFUL PERUSAL WE FIND THAT TRIBUNAL HAS OBSERVED IN PARA 5 & 6 THAT THE ASSESSMENT WAS RE- OPENED ON THE BASIS OF THE AMENDMENT BROUGHT IN SEC TION 80 HHC OF THE I.T. 2 ACT WITH RETROSPECTIVE EFFECT. WHEREAS THE FACTS BORNE OUT FROM THIS ORDER OF THE LOWER AUTHORITIES ARE OTHERWISE. FROM A CAREFU L PERUSAL OF THE ORDER OF THE CIT(A) WE FIND THAT THE CIT(A) HAS CATEGORICALL Y MENTIONED IN HIS ORDER THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF T HE DECISION OF THE SUPREME COURT IN M/S. IPCA LABORATORY VS. CIT IN WHI CH THE APEX COURT HAD OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LO SS ON THE EXPORT OF TRADING GOODS IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. WE THEREFORE OF THE VIEW THAT TRIBUNAL HAS INADVERTEN TLY MENTIONED THE INCORRECT FACTS WHICH REQUIRE TO BE RECTIFIED. WE THEREFORE SUBSTITUTE THE FOLLOWING SENTENCES OF PARA-5 AND 6 AS UNDER: IN PARA-5 FROM 6 TH LINE I.E. FROM READING OF THE REASONS RECORDED IT BECOMES CLEAR THAT ASSESSMENT WAS RE-OPENED IN VIEW OF THE RESTROSPECT IVE AMENDMENT OF PROVISIONS OF SECTION 80HHC BY TAXATION LAW AMENDME NT 2005 W.E.F. 1.4.1988 BE SUBSTITUTED BY FROM READING OF THE REASONS RECORDED IT BECOMES CLEAR THAT ASSESSMENT WAS RE-OPENED IN VIEW OF THE JUDGEMENT O F THE SUPREME COURT IN THE CASE OF IPCA LABORATORY VS. CIT WHERE THE APEX C OURT HAS OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LOSS ON THE EXPO RT OF TRADING GOODS IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. IN PARA-6 FROM 6 TH LINE I.E. FROM A CAREFUL PERUSAL OF ASSESSMENT ORDER IT APP EARS THAT ASSESSMENT WAS RE-OPENED ON THE BASIS OF THE AMENDM ENT BROUGHT IN SECTION 80HHC OF THE I.T. ACT. THE AMENDMENT WAS WITH RETR OSPECTIVE EFFECT BUT ON THE BASIS OF IT ONLY THOSE ASSESSMENT CAN BE RE-OPE NED WHICH ARE PERMISSIBLE UNDER THE LAW AND NOT OTHERWISE BE SUBSTITUTED BY FOLLOWING LINES: FROM A CAREFUL PERUSAL OF THE ASSESSMENT ORDER I T APPEARS THAT THE ASSESSMENT WAS RE-OPENED ON THE BASIS OF THE JUDGEM ENT OF THE SUPREME COURT IN THE CASE OF IPCA LABORATORY VS. CIT WHERE THE APEX COURT HAS OBSERVED THAT ONCE THE EXPORT HOUSE HAS INCURRED LO SS ON THE EXPORT OF TRADING GOODS IT WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC OF THE ACT. 3 4. ACCORDINGLY THE MISCELLANEOUS APPLICATIONS OF T HE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 8.9.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 8 TH SEPTEMBER 2010 COPY TO 1 ANJANEYA AQUA D.NO.37-1-406(25) 2 ND LANE BHAGYA NAGAR ONGOLE 2 DCIT CIRCLE-2(1) GUNTUR 3 THE CIT GUNTUR 4 THE CIT(A) GUNTUR 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM