TMI Blog2014 (6) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts afresh without pointing out any specific fact which required further investigation - the CIT could not point out how the view adopted by the Assessing Officer was not a possible view the order of the CIT were contrary decisions of the High Court - It is an established position of law that when two views were possible in respect of an issue and the Assessing Officer has adopted one of the possible views, such an order of the Assessing Officer cannot be deemed as erroneous as well as prejudicial to the interest of the Revenue – thus, the order of the CIT is set aside – Decided in favour of Assessee. - ITA No. 1403/Ahd/2011 - - - Dated:- 6-6-2014 - Shri G. C. Gupta And Shri N. S. Saini,JJ. For the Petitioner : Shri Jagdish, Sr. DR For the Respondent : Shri Sunil H. Talati, AR ORDER Per Shri N. S. Saini, Accountant Member: This is an appeal filed by the assessee against the order of the Commissioner of Income Tax, Ahmedabad dated 25.03.2011. 2. The assessee has raised following grounds of appeal: 1. The Appellant submits that the Id. C.I.T. has erred in law and on facts by initiating proceedings u/s. 263 of the I.T. Act, 1961 ignoring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, are applicable from the assessment year 1999-2000, while judgement of Hon'ble Supreme Court on which the Assessing Officer relied is in context of section 80HH 80I, hence apparently appears to be not applicable. He further observed that Hon'ble ITAT, Chennai Bench in the case of ACIT vs. Rogini Garments - 108 ITD 49 - has held in view of the specific restriction provided u/s,80IA(9), relief u/s.80IA should be deducted from the profits gains of business before computing relief u/s.80HHC. In view of this decision, the Commissioner of Income Tax concluded that the Assessing Officer appears to have wrongly computed deduction u/s.80HHC without reducing the profit of undertaking which was allowed as a deduction u/s.80IB and therefore, in the opinion of the Commissioner of Income Tax, the order passed by the Assessing Officer was erroneous and prejudicial to the interest of revenue. 4. Therefore, a show cause notice u/s. 263 was issued to the assessee. In response to the notice, the assessee filed a written submission. After considering the same, the Commissioner of Income Tax held as under: 5. I have carefully considered the oral arguments as well as the written s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of repetitive deductions in section 80IA(9), and is made applicable in respect of deductions under Chapter VIA, then this restriction is to be applied. Since the wordings used are 'any other deduction under Chapter VIA' full effect is to be given to this provision and whenever an assessee wants to claim deduction u/s. 80IA(9) is to be read in every other provision providing for deduction under Chapter VIA. Apropos the arguments that the provision is couched with ambiguities, and therefore, the spirit of the Act is to be seen and justice be done, it is found that the freedom for the search of the spirit of the Act or the mischief at which it is aimed opens the possibility of liberal interpretation. This finer aspect cannot be narrowly watched. It is that delicate and important branch of judicial power, the concession of which is dangerous. Denial is disastrous. The intention of legislature is a very slippery phase. When the language of the statute is transparently planned, it is wrong to give it colour according to the temper of time. When the language employed by the enactment is clear, there is no question of interpreting the provisions in any manner except by giving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by him is apparently erroneous and prejudicial to the interest of revenue. 9. During the course of hearing, the A.R. further produced a copy of Bombay High Court decision in the case of Associated Capsules (P) Ltd vs. DCIT 236 CTR 408 and contended that Hon'ble Bombay High Court has over-ruled the SPL Chennai's decision in the case of Rogini Garments. He has also contended that Court has considered the decision of SPL Benches, Delhi High Court's decision and Kerala High Court's decision and thereafter held that section 801 A(9) does not affect the computability of deduction under various provisions under heading Chapter VIA, but it affects the allowability of deductions computed under various provisions under heading C of Chapter VI-A so that the aggregate deduction u/s. 80IA and other provisions under heading 'C of Chapter VI-A so that the aggregate deduction u/s. 80IA and other provisions under heading C of Chapter VI-A do not exceed 100% of the profits of business of the assessee.......... 10. In view of the above decisions, the facts in the present case are to be re-examined and fresh decision is required to be taken. In the present case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the Revenue by the decision of the Madras Special Bench of the Tribunal in the case of ACIT, Circle-1, Tirupur Vs. Rogini Garments (2007) 108 ITD 49 (Chennai)(SB) and of the Hon ble Delhi High Court in the case of Great Eastern Exports vs. CIT 237 CTR 264(Delhi) and the Hon ble Kerala High Court in the case of Olam Exports (India) Limited Vs. CIT (2011) 332 ITR 40. 8. As against this, the assessee relied upon the decision of Hon ble Bombay High Court in the case of Associated Capsules (P) Ltd. Vs. DCIT (2011) 332 ITR 42 wherein the issue was decided in favour of the assessee and the order of the Assessing Officer was in conformity with the said decision. The Commissioner of Income Tax could not bring any material to controvert the submission of the assessee. He, thereafter, set aside the order of the Assessing Officer and restored the matter back to the file of the Assessing Officer with the direction as under: In view of the above decision, the facts in the present case are to be re-examined and fresh decision is required to be taken. In the present case, the order passed by the Assessing Officer is erroneous and prejudicial to the interest of revenue in view of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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