TMI Blog2015 (6) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Bharat,JJ. For the Petitioner: Shri Tushar Hemani, AR For the Respondent: Shri M.K. Singh, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-6, Ahmedabad ( CIT(A) in short) dated 04/10/2011 pertaining to Assessment Year (AY) 2004-05. The assessee has raised the following grounds of appeal:- Your appellant being aggrieved by the order passed by the learned Commissioner of Income Tax (Appeals)-VI, Ahmedabad presents this appeal against the same before your Honor on the following grounds: 1. The Ld. Commissioner of Income-tax (Appeals) erred both in law and on facts in holding that Assessing Officer's acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income. The ld.CIT(A) has recorded in para-2.1 of his order the direction of this Tribunal which reads as under:- 2. 1 The A.O. has stated in the assessment order dtd.22/11/2010 which is under: The Hon'ble ITAT vide its order under consideration in ITA No.2940/Ahd/2006 dated-05/10/2009 has set aside and restored back the issue to the file of the Assessing Officer with a direction to decide the issue afresh in accordance with law, after allowing sufficient opportunity to the assessee and keeping in view the decision of the Special Bench in the case of Topman Exports vs. ITO. The relevant part of the order of the Hon'ble ITAT is reproduced hereunder: 5.2 In the light of aforesaid findings of the Special Bench and the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versed the judgement of the Hon ble Mumbai High Court rendered in the case of CIT vs. Kalpataru Colour and Chemicals(supra). 3.1. On the contrary, ld.Sr.DR fairly conceded the submission of the ld.counsel for the assessee. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has decided this issue by observing as under:- 2.3. I have considered the facts of the case; assessment order and appellant s submission. The issue of claim of deduction under section 80HHC on DEPB income was set-aside by ITAT to the file of AO to be decided as per amended provisions and special bench decision in the case of Topman exports. Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a smaller figure from profits of the business under Expln. (baa) to s. 80HHC of the Act and there is nothing in Expln. (baa) to s. 80HHC to show that this benefit of exclusion of a smaller figure from profits of the business will not be available to an assessee having an export turnover exceeding ₹ 10 crores. In other words, where the export turnover of an assessee exceeds ₹ 10 crores, he does not get the benefit of addition of ninety per cent of export incentive under cl. (iiid) of s. 28 to his export profits, but he gets a higher figure of profits of the business, which ultimately results in computation of a bigger export profit. The High Court, therefore, was not right in coming to the conclusion that as the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder:- 26. On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still pending although such benefit will be available to the assessees whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assessee but not in a case where it affects even a fewer section of the assesses. 27. We, according ..... X X X X Extracts X X X X X X X X Extracts X X X X
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