TMI Blog2010 (12) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... r. ITA No.1683/Ahd/2004 : A.Y.1999-2000 (Revenue s appeal) 2. The Ground No.1 of the Revenue s appeal reads as under: 1. Ld.CIT(A) has erred in law and on facts in holding that the loss at the first limb of section 80HHC(3) should be ignored and taken as Nil and computation of deduction u/s.80HHC be done on the incentives. 3. At the time of hearing before us, both the parties fairly admitted this issue should be set aside to the file of the Assessing Officer for re-computation of deduction under Section 80HHC in view of 5th proviso inserted by the Taxation Laws Amendment Act, 2005 with retrospective effect from 1-4-1992. 4. We have heard the learned DR and perused the material placed before us. We find that the Taxatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be ascertained with certainty. In support of this contention, he relied upon the following decisions: i) Synco Industries Ltd. Vs Assessing Officer (Income-tax) (SC) 299 ITR 444; ii) A. M. Moosa Vs Commissioner of Income-tax (SC) 294 ITR 1 iii) Income-tax Officer Vs Induflex Products P. Ltd. (SC) 280 ITR 1 iv) IPCA Laboratory Ltd. Vs Deputy Commissioner of Income-tax (SC), 266 ITR 521 7. The learned counsel for the assessee, on the other hand, stated that various decisions relied upon by the learned DR were on different issues and none of the decisions is on the issue of allowability of deduction under Section 80HHC on division-wise profit. He has stated that this issue is considered by various Benches of the ITAT, Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt years. 9. We have carefully considered the arguments of both the sides and perused the material placed before us. Admittedly, the assessee was entitled to deduction under Section 80HHC in the preceding as well as subsequent years. However, whether in those years, the deduction was claimed/allowed on division-wise turnover/profit or it was allowed on the total turnover/profit of all the division is not clear. Neither, the assessee nor the Revenue can take different stand in different years, if the facts remain the same. While taking this view, we derive support from the decision of the Hon ble Apex Court in the case of Radhasoami Satsang Vs. CIT, (1992) 193 ITR 0321. In view of the above, we deem it proper to set aside the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel. 12. We find that the Revenue s appeal for A.Y.2000-2001 (i.e. the year under appeal) was already adjudicated by the ITAT vide order dated 7-8-2009 (supra) and the ITAT set aside the matter relating to computation of deduction under Section 80HHC back to the file of the Assessing Officer. When the matter is already pending before the Assessing Officer, we set aside the issue raised before us vide Ground No.1 of the assessee s appeal and restore the matter back to the file of the Assessing Officer. The assessee may make appropriate claim with regard to the determination of the total turnover and export turnover before the Assessing Officer. 13. Ground No.2 of the assessee s appeal reads as under: 2. The ld.CIT(A) e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides and perused the material placed before us. Rule 6DD(b) reads as under: 6DD. Cases and circumstances in which a payment or aggregate of payments exceeding twenty thousand rupees may be made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft.-No disallowance under sub-section (3) of section 40A shall be made and no payment shall be deemed to be the profits and gains of business or profession under sub-section (3A) of section 40A where a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees in the cases and circumstances specified hereunder, namely :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (2) the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India ; From the above, it is evident that the profit of the business means the profit of the business as computed under the head profit and gains of the business or profession . Therefore, if while computing any income under the head Profit and Gains of the Business or Profession any disallowance is made then the profit and gains which is determined after making such disallowance would be the profit and gains for the purpose of section 80HHC. We therefore accept the alternate claim of the assessee and direct the Assessing Officer to adopt the profit of the business as determined by him under the head Profit and Gains of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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