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TMI Blog2010 (1) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming deductions under ss. 80HHC and 80G of the IT Act, 1961 ('the Act' hereinafter) at Rs. 18,26,119 and Rs. 1,06,022 respectively. The AO disallowed the assessee its claim of deduction under s. 80HHC in view of the absence of any positive income, i.e., prior to export benefits, which stood determined by him at (-) Rs. 40,226, in view of the decision of the Hon'ble Supreme Court in the case of IPCA Laboratory Ltd. vs. Dy. CIT (2004) 187 CTR (SC) 513 : (2004) 266 ITR 521 (SC). The assessee's claim for a corresponding deduction in the computation of its income under s. 115JB of the Act also stood, consequently, denied, as the same would be exigible only if the assessee is otherwise eligible for deduction under s. 80HHC, and which it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wrong in reckoning the DEPB income at the sale value accruing to the assessee on the transfer of the DEPB license(s). Sec. 28(iiid), as clarified by the Special Bench of the Tribunal in the case of Topman Exports vs. ITO (2009) 125 TTJ (Mumbai)(SB) 289 : (2009) 29 DTR (Mumbai)(SB)(Trib) 153 : (2009) 318 ITR 87 (Mumbai)(SB)(AT), only refers to the excess of the sale proceeds over the face value of the DEPB credit, which value would be assessable under s. 28(iiib) of the Act in the year in which the DEPB credit accrues to the assessee, i.e., when he acquires the right thereto by making an application therefor after effecting the export. As such, even as the assessee has been admittedly unable to satisfy the condition(s) listed in the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value, which benefit would accrue to the assessee in the year in which it makes an application with the concerned authority in its respect, so that the same, assessable under s. 28(iiib), is independent of the actual grant of the license or its subsequent transfer, which may or may not materialise, as, say, where the assessee utilizes the DEPB license for importing goods for his own purposes. 5. In view of the foregoing, we having delineated broadly the relevant aspects of the decision in the case of Topman Exports (supra), set aside the impugned order and restore the matter back to the file of the AO for working out the assessee's income for the year in light of the amended law, i.e., qua s. 80HHC, following the afore-referred deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure as no benefit or advantage of enduring nature inured to the assessee thereby. The learned CIT(A), however, considered the assessee's claim before him as not maintainable in the absence of any claim before the AO, either per the original return or the revised return, so that it was a fit case for the application of the decision in the case of Goetze (India) Ltd. vs. CIT (2006) 204 CTR (SC) 182 : (2006) 284 ITR 323 (SC) and, accordingly, dismissed the assessee's relevant ground, leading to the instant appeal. 8. The parties were heard, and the cited case law perused. 8.1 Firstly, we observe that there is no dispute as to the deductibility per se of the impugned expenditure as a revenue expenditure under s. 37(1), admissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Tribunal to entertain a legal ground, where the relevant facts are on record and not in dispute, was examined, and held as available within the scope of the power conferred thereon under s. 254 of the Act. However, the preference of the claim for deduction is not to be construed in a pedantic manner but in a purposive manner. It is a trite law that the view of the parties qua a matter of law is not relevant or determinative of the issue. As such, when the assessee, under the mistaken impression that the impugned expenditure is a capital expenditure and, as such, not allowable under the provisions of the Act, disallowed the same in the computation of its income, forming part of its return of income, it cannot be said that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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