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GUJARAT APOLLO EQUIPMENTS LTD Versus DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-4

2016 (8) TMI 770 - GUJARAT HIGH COURT

Deduction u/s 80HHC - excluding the hiring charges and operating charges from the profits of the business of the Company - Held that:- This appeal is already settled by the judgment of this Court in the case of CIT v. Nirma Ltd., [2014 (10) TMI 388 - GUJARAT HIGH COURT ] . Learned Standing Counsel for the Revenue was not in a position to point out any distiguishing feature, which may warrant a different view. Consequently, Question is answered in favour of the assessee and against the Revenue .....

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for the Revenue was not in a position to point out any distiguishing feature, which may warrant a different view. See M/s ACG Associated Capsules Pvt. Ltd. (Formerly M/s Associated Capsules Pvt. Ltd.) [2012 (2) TMI 101 - SUPREME COURT OF INDIA] - Decided in favour of the assessee and against the Revenue. - Levy of Section 234A, 234B and 234C - Held that:- Apex Court in the case of CIT v. Bhagat Construction Co. P. Ltd. & Anr., [2015 (8) TMI 621 - SUPREME COURT ] wherein, it has been held tha .....

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eature, which may warrant a different view. Consequently, Question is answered in favour of the Revenue and against the assessee. - Levy of interest under Section 234D - Held that:- Addition of explanation (2) to section 234D of the Act by Finance Act, 2012, with retrospective effect from June 01, 2003, is made applicable even to the period under assessment year 2004-2005. In respect of excess refund granted to the assessee under section 143(1) of the Act, the interest was payable by the ass .....

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s answered in favour of the Revenue and against the assessee. - TAX APPEAL NO. 825 of 2009 - Dated:- 12-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR RK PATEL, ADVOCATE FOR THE OPPONENT : MRS MAUNA M BHATT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. This Tax Appeal u/s.260A of the Income-tax Act, 1961 is filed against the order dated 16.01.2009 passed by the Income Tax Appellate Tribunal, Ahmedabad in ITA No.1343/Ahd/2006 raising the following substantial .....

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on of interest receipts as income assessable under the Head Income from other sources? (3) Whether on the facts and on interpretation of Section 80HHC of the Act only the net amount of interest for the purpose of working out the deduction under Section 80HHC of the Act is to be considered for computation of the claim of the appellant company? (4) Whether on the facts and in the circumstances of the case, the Tribunal has substantially erred in law in interpreting the provisions of Section 234A, .....

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ale of road construction and maintenance machineries and spares thereof. On 28.11.2003 the assessee filed its return of income for the A.Y. 2003-04 declaring total income at ₹ 8,64,37,864/. The return was processed and ultimately, the assessment order came to be passed on 30.03.2005 declaring total income at ₹ 8,97,96,482/- after making certain additions / disallowances. Against the said order, the assessee preferred appeal before the CIT(A). The said appeal was partly allowed by ord .....

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t Question No.(1) raised in this appeal is already settled by the judgment of this Court in the case of CIT v. Nirma Ltd., [2012] 367 ITR 12. Learned Standing Counsel for the Revenue was not in a position to point out any distiguishing feature, which may warrant a different view. Consequently, Question No.(1) is answered in favour of the assessee and against the Revenue. 5. Insofar as Question Nos.(2) & (3) are concerned, learned counsel for the assessee submitted that the same are also sett .....

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d Standing Counsel for the Revenue was not in a position to point out any distiguishing feature, which may warrant a different view. Consequently, both Question Nos. (2) & (3) are answered in favour of the assessee and against the Revenue. 6. As regards Question No.(4), the same is already settled by the judgment of Apex Court in the case of CIT v. Bhagat Construction Co. P. Ltd. & Anr., [2016] 383 ITR 09 (SC) wherein, it has been held that under the provisions of Section 234B, the momen .....

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quently, Question No.(4) is answered in favour of the Revenue and against the assessee. 7. Insofar as Question No.(5) is concerned, the same is already settled by the judgment of this Court in the case of CITII v. Gujarat State Financial Services Ltd., [2014] 49 taxmann.com 221 (Gujarat) wherein, the following observations have been made in Para5.6 of the said decision: 5.6 This very issue came up for scrutiny before the Bombay High Court in the case of Commissioner of Income-tax v. Indian Oil C .....

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essment year for which the refund was granted was completed after June 01, 2003. The Bombay High Court held the explanation 2 to section 234D of the Act as declaratory/ clarificatory in nature. The same being declaratory/ clarificatory, the same was held to be applied with retrospective effect. In the words of the Bombay High Court : (21) The question therefore is whether the words in section 234D has a past signification. We think it does. Explanation 2 in fact supports this view. In view of th .....

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efund under section 143(1) is in the nature of a provisional refund and is subject to the final determination under section 143(3). This grant of refund is pending the conclusion of the final assessment under section 143(3) in respect of the year for which the refund is granted. The classification done in section 234D is on the basis of the date of the completion of assessment proceedings prior to 1/06/2003 on the one hand and post 1/06/2003 on the other. The classification is not on the basis o .....

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s granted under section 143(1) of the Act to an assessee is qua an assessment proceeding for a particular assessment year. The refund granted is qua an assessment year. The refund emanates from assessment proceedings for a particular assessment year. The refund granted cannot be divorced from the assessment year or the assessment proceeding. Consequently to hold that interest on such refund would only run from 1/06/2003 would be to curtail the plain meaning of Explanation 2 to Section 234D. (23) .....

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mount so refunded shall be deemed to be tax payable by the assessee and the provisions of this Act shall apply accordingly. It is clear therefore, that excess refund determined under section 143(3) of the Act is deemed to be tax payable by the assessee. However, as there was no provision of interest on the grant of refund under Section 143(1) of the Act it became necessary to provide for the same by having a charging provision. This was done by section 234D of the Act in respect of all pending a .....

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roceedings for assessment are completed after 1/06/2003. The respondent has not contended that the Explanation 2 to section 234D of the Act is not retrospective. Their only contention is that it would not apply to refunds granted prior to 1/06/2003 even in respect of assessments completed after the cutoff date of 1/06/2003. This submission ignores the fact that Explanation 2 which is declaratory in nature clarifies that the section would apply to an assessment year even before 1/06/2003 provided .....

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