TMI Blog2014 (12) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... G. C. Gupta And Shri Anil Chaturvedi, A.M.,JJ. For the Appellant : Shri Vijay Ranjan, A.R. For the Respondent : Shri Vimalendu Verma, CIT/DR ORDER Per Shri Anil Chaturvedi,A.M. 1. These two appeals filed by the Assessee are against the order of CIT(A)-III, Ahmedabad dated 19.08.2010 for A.Ys. 2003-04 2004-05 respectively. 2. Before us, both the parties submitted that the facts and circumstances of both the cases are similar except for the amounts and the submissions are also common for both the appeals and therefore both the appeals can be heard together. We therefore proceed to dispose of both the appeals together for the sake of convenience and thus proceed with the facts in IT(SS)A. No. 765/AHD/2010 for 3. The facts as culled out from the material on record are as under. 4. Assessee is a partnership firm stated to be engaged in the business of manufacturing of Dyes and Intermediates. A search action u/s 132 of the Act was carried out in the group cases of Jindal Group on 30.08.2007. A search warrated of authorization u/s 132 was issued in the name of Assessee. Thereafter in accordance with provisions of Section 153A of the Act, a notice was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment and assessment order u/s. 153A. If the law is different at different points of time then the AO is duty bound to apply such law. In this case also the law at the time of passing original assessment was different than the law prevailing at the time of search as the provisions of section 80HHC and section 28(iiia), 28(iiib) etc. were amended with retrospective effect. The ratio of the above mentioned decisions of ITAT would not be applicable in such cases of retrospective amendment. 5.2. Further in all the decisions relied upon by the appellant i.e. decision of a) Anil P. Khimani vs. DCIT, 14 (Mum) b) Helios Food Additiva P. Ltd. vs. DCIT CC-40(Mumbai) c) Meghmani Organics Ltd (Ahd) d) Anilkumar Bhatia vs. ACIT C.C.17, Delhi. It has been held that the initiation of 153A/153C proceedings are invalid in respect of those years for which no incriminating documents is found during searcn. That means 153A proceedings can be initiated only in those years for which incriminating documents is seized. In other words, the assessment u/s. 153A/153C can be made only in respect of seized material. Only in respect of pending assessments other issues can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the appellant of different ITATs are distinguishable on the facts that in neither of such cases the AO has made the addition of the same amount in original assessment nor there was any retrospective amendment. In fact, in the case of Shri Anil K. Bhatia Others, the ITAT Delhi at para 9.2 of the order while referring to the decision of ITAT, Ahmedabad in the case of Meghmani Organics Ltd. has mentioned as under : 10. The decisions relied on by the learned DR are distinguishable en facts. In the said cases the Tribunal have given a finding that it is not the complaint of the assessee that any income, which is already subjected to assessment under s. 143(3) or under s. 148 of the Act completed prior to the search in respect of six assessment years referred to in s. 153A, has also been included in the assessment framed under s. 153A of the Act. However, in the present case the Assessing Officer has recomputed deduction u/s. 80HHC and 801A of the Act by reducing the claim thereof. The Assessing Officer was not competent to do so in assessment u/s. 153A of the Act. We, therefore, cancel the assessment framed u/s. 153A of the Act for all the years. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It is not permissible to bifurcate the proceeds of the DEPB into face value and excess of face value . The approach of the Tribunal is misconceived and unsustainable. As the assessee had an export turnover exceeding ₹ 10 crores and did not fulfill the conditions set out in the third proviso to s. 80HHC (3), it was not entitled to a deduction u/s 80HHC on the amount received on transfer of DEPB. Respectfully following the decision of Mumbai High Court in the case of Kalpatara Colours and Chemicals as mentioned above, the action of AO in disallowing deduction u/s. 80HHC on DEPB license is upheld. This ground is decided against the appellant. 7. Aggrieved by the order of CIT(A), Assessee is now in appeal before us. 8. Before us ld. A.R. submitted that Assessee had originally filed its return of income on 21.11.2003 and the return was accepted u/s 143(1) on 10.12.2003. Subsequently, on 30th August, 2007 search and seizure proceedings u/s 132 were carried out and pursuant to which the assessment was framed u/s 143(3) r.w.s. 153A on 11.12.2009 wherein the reduction on account of deduction u/s 80HHC was made by A.O. ld. A.R. further submitted that in case of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
