TMI Blog2016 (4) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDICIAL MEMBER: The assessee and the Revenue are in cross-appeals against the order of the CIT(A)-V, Ahmedabad dated 28.11.2006 passed for the Asstt.Year 2003-2004. 2. Both these appeals were taken up for hearing and disposed of by the Tribunal vide order dated 30.10.2009. The appeal of the Revenue bearing ITA No.652/Ahd/2007 was dismissed on account of low tax effect involved in the appeal. The appeal of the assessee i.e. ITA No.776/Ahd/2007 was allowed for statistical purpose by following the decision of the ITAT, Special Bench decision in the case of Topman Exports Vs. ITO, (2009) 318 ITR (AT) 87 (Mum.SB). Dissatisfied with this order of the Tribunal, the department approached the Hon ble Gujarat High Court and challenged the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52/Ahd/2007 has also been made. The learned counsel for the assessee has informed that the assessee has written letters to the Registry of Hon ble Supreme Court as well as Hon ble Gujarat High Court pointing out that this issue has arisen from the ITA No.776/Ahd/2007 before the Tribunal. The issue involved in the appeal of the Revenue was never taken up before the Hon ble Gujarat High Court or before the Hon ble Supreme Court. The issue in the appeal of the Revenue was whether the CIT(A) has erred in deleting the addition of ₹ 30,678/- which was made by the AO on the ground that the assessee has made payment of employer s contribution towards PF after expiry of limitation. This issue is neither discernible from the order of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, but considering the subsequent decision of the Hon ble Supreme Court passed on 25-10-2013, we are of the view that whole exercise will be an academic one, because, the Hon ble Supreme Court has remitted the issue to the Tribunal with a direction to consider in the light of the decision in the case of Topman Exports Vs. ITO (supra). In other words, finding of ITAT recorded in the order dated 30.10.2009 which were set aside by the Hon ble High Court were restored to a limited extent. 7. As observed earlier that in pursuance of ITAT order dated 30.10.2009, the AO has decided the issue and dispute travelled upto the Tribunal in ITA No.2622/Ahd/2011. The Tribunal has recorded the following finding: 4. We have heard the rival submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction as per the decision of the Special Bench rendered in the case of Topman Exports(supra). The contention of the ld.counsel for the assessee is that the computation of profit of the business as per Explanation(baa) of Section 80HHC, whether made on the basis of the judgment of Topman Exports or on the basis of Kalpataru Colours and Chemicals, will not make any difference because whatever amount is reduced from the profit of the business as per Explanation (baa), the same will be increased by the identical amount as per various provisos of Section 80HHC(3) of the Act. In other words, the overall computation of claim of deduction u/s.80HHC will not materially be different under both the judgments. Thus, the amount of deduction of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing the judgement of Hon ble Supreme Court rendered in the case of CIT vs. Avani Exports, we hereby direct the AO to allow the deduction u/s.80HHC of the Act. Thus, ground Nos.1 to 5 of assessee s appeal are allowed. 8. On merit, this very finding has to be recorded by us in ITA No.776/Ahd/2007 which is original round of appeal and has been restored by the Hon ble Supreme Court. Because, the issue is covered by the decision of the Hon ble Supreme Court in the case of CIT Vs. Avani Export as well as in the case of Topman export (supra). The ld.AO is directed to grant deduction under section 80HHC of the Act. 9. In the result, appeal of the assessee is allowed. 10. So far as the Revenue s appeal is concerned, it did not travel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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