TMI Blog2015 (2) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... osses against export incentives. In terms of the first proviso, only profits could be increased by export incentives and therefore the order of assessment dated 30 January 2004 was erroneous and prejudicial to the interest by the Revenue and powers under Section 263 of the Act could legitimately be exercised by the CIT. For the purposes of this appeal even if assume (without having examined the same) that the Revenue is correct and set aside the impugned order and restore the matter to Assessing Officer, yet the Assessing Officer will while recomputing the benefit available under Section 80HHC of the Act will have to extend the benefit of the retrospective amendment resulting to the same result as found in the Assessment Order dated 30 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT and the Respondent is not applicable to this case? 4. The impugned order of the Tribunal allowed the assessee's appeal on the short point that the Commissioner of Income Tax could not have exercised jurisdiction under Section 263 of the Act to revise an order of assessment dated 30 January 2004 when the same has been a subject matter of appeal before the Commissioner of Income Tax (Appeals). 5. Briefly, the facts are that the respondent filed its return of income for the Assessment Year 2001-02 declaring an income ₹ 90,000/-. This was after having claimed a deduction of ₹ 12.53 Crores under Section 80HHC of the Act i.e. without taking into account the trading loss. The Assessing Officer restricted the claim af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt's claim for benefit under Section 80 HHC of the Act yet in appeal the CIT(A) had not applied his mind and considered the issue of export incentive being considered for arriving deduction at Section 80 HHC of the Act. Thus it is submitted even if an appeal was filed by assessee from the order dated 30 January 2004 to the CIT(A), no question of merger into the CIT(A)'s order dated 19 August 2004 can arise. 10. On the other hand, Mr. Jain, learned Counsel appearing for respondent-assessee points that the issue of export incentives was in fact subject of consideration by the CIT(A) while considering the claim for deduction under Section 80HHC of the Act as the Assessing Officer had considered the same in his order dated 30 January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80HHC(3) of the Act only profits could be increased by the export incentives. The first proviso to Section 80HHC(3) at all times read as under: Provided that the profits computed under clause (a) or clause (b) or caluse (c) of this subsection shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause (iiia) (not being profits on sale of a licence acquired from any other person), and clauses (iiib) and (iiic) of section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. 12. In view of the above, when the assessment order was passed, absent the above amendment of 2005, it was not open to the Assessing Officer to set of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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