TMI Blog2016 (4) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has laid down certain guidelines. We find that all such material was not available to the AO/FAA when they had passed the assessment order/appellate order. As they did not have the benefit of important legislation, so in the interest of justice, we are remitting back the file to the AO for fresh adjudication. The AO is directed to decide the issue afresh after affording reasonable opportunity of hearing to the assessee - Decided in favour of assessee in part by way of remand. - ITA/6344/Mum/2013 - - - Dated:- 6-4-2016 - Shri Joginder Singh, Judicial Member And Rajendra, Accountant Member For the Petitioner : Shri M. Murli For the Respondent : Ms. Vasanti Patel ORDER Per Rajendra A. M. Challenging the order, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submitted that it had no objection for netting off of the profit and loss of both the segments. It was further stated that the judgment was not available when the assessee had filed the return of income i. e. on 31/10/2002. After considering the submissions made by the assessee on various occasions, the AO referred to the case of Rohan Dye and Intermediates Ltd. of Hon'ble Bombay High Court, wherein it was held that if the assessee had incurred losses from export activity before incentive no deduction u/s. 80 HHC of the Act was allowable, that receipt on account of DEPB could not be considered for the purpose of determining the deduction under 80HHC. In view of the above, the AO netted off the loss from trading export against profit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be reduced from the cost while computing profit from export of trading goods, that the AO had held that the receipts on account of DEPB could not be considered for purpose of determining deduction u/s. 80HHC. After considering the submission of the assessee and the writ petition filed by the assessee before the Hon'ble Bombay High Court(Writ Petition 7926 of 2006), the FAA held that there was net loss during the year from the export operations of the assessee which had been examined and verified by the AO while passing the assessment, that the assessee had a composite business of export, that bifurcation or segregation of manufacturing or trading activities could not be accepted for deduction u/s. 80HHC of the Act, that it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Hon'ble Supreme Court in the case of Avani Exports and Anr. (2015-TIOL-46-SC-IT, dt. 303. 2015), that by a retrospective amendment netting has been allowed, that at the time of passing of the order the amendment was not part of the Act, that the amendment of 2005 has to be given retrospective effect. She referred to the case of the assessee (Income tax Appeal No. 6837 of 2010 dt. 6/2/2015) of the Hon'ble Bombay High Court wherein the retrospective effect of the amendment was discussed. The Departmental Representative (DR) supported the order of the FAA. 5. We have heard the rival submissions and perused the materials before us. We find that at the time of filing of return there was ambiguity about netting off of profits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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