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2016 (9) TMI 109

the view that income is to be taxed in accordance with the statutory provisions and not on the basis of the impression or the views which the assessee is supposed to have taken in the matter. On facts the Tribunal found that the assessee had advanced such a plea before the Assessing Officer also and was further of the view that the mere fact that the assessee had shown such amount as taxable receipt is not material and that the issue has to be examined as per the statutory provisions. Accordingly, it has remitted the matter to the Assessing Officer to reexamine the claim of the assessee under section 80HHC of the Act. In the opinion of this court, the approach adopted by the Tribunal in sending the matter back to the Assessing Officer for determination of the question as to whether benefit or privilege in the form of advance licence allotted to the assessee is taxable or not is a practical approach having regard to the facts and circumstances of the case. In these circumstances, it is not possible to state that the impugned order passed by the Tribunal suffers from any legal infirmity so as to warrant interference. - The Appellate Tribunal has not erred in remanding the matter .....

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export of goods which is in the nature of cash assistance (by whatever name called) received or receivable against the export under the scheme of the Government of India. It was contended that the duty benefit falls under section 28(iiia) of the Act. 4. Before the Tribunal, the learned counsel for the assessee admitted that the plea raised by the assessee before the Assessing Officer that ₹ 1,10,56,774/- was cash incentive was factually incorrect and that even if it is held that the assessee received licence under the export scheme, the licence was a capital receipt and could be taxed only under section 28(iiia) of the Act when the licence is sold. No licence was sold in the year under consideration and profit from licence was duly shown in the next year. The plea that a sum of ₹ 1,10,56,774/- was not taxable income was sought to be raised as an additional ground of appeal as no such plea was taken in the memorandum of appeal. The learned counsel for the assessee, accordingly, did not contend that the assessee was entitled to deduction under section 80HHC on the sum of ₹ 1,10,56,774/- as alleged export incentive. 5. It was the case of the revenue that the income .....

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a receipt. The question has to be determined in accordance with law. Therefore, the mere fact assessee showed this amount of ₹ 1,10,56,774/- as taxable receipt is not material. The issue has to be examined as per the statutory provisions. In the above circumstances and for advancing cause of justice, we permit the assessee to raise the ground that sum of ₹ 1,10,56,774/- or a lesser amount shown as import incentive is not a taxable receipt. 6. The Tribunal, for the detailed reasons recorded in paragraphs 6.3, 6.6 and 6.7 of the impugned order, thought it appropriate to ask the Assessing Officer to re-examine the claim of the assessee under section 80HHC of the Act in case there is a positive total income and allow relief in accordance with law. 7. Mr. Sudhir Mehta, learned senior standing counsel for the appellant assailed the impugned order by submitting that the Assessing Officer was wholly justified in holding that the duty benefit derived by the assessee on the duty free import falls within the ambit of section 28(iiib) of the Act under the head cash assistance as business receipts and as such, the Tribunal was not justified in not upholding the order passed by the A .....

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ot on the basis of impression or views which the assessee is supposed to have taken in the matter. The Tribunal observed that it is settled law that entries made by the assessee in the books of account are not conclusive on the question of taxability of a receipt and that such question has to be determined in accordance with law. Therefore, the mere fact that the assessee showed the amount of ₹ 1,10,56,774/- as taxable receipt is not material and that such issue has to be examined as per the statutory provisions. The Tribunal, accordingly, permitted the assessee to raise the ground that the sum of ₹ 1,10,56,774/- or a lesser amount shown as import incentive is not a taxable receipt. Before the Tribunal, it was contended on behalf of the revenue that the assessee was given a licence to import dyes and that licence was freely transferrable and it had a commercial value which was fixed by the assessee at ₹ 1,10,56,774/-. The amount was also shown as income and this had been the stand of the assessee throughout. The Tribunal noted that it was true that the assessee did show ₹ 1,10,56,774/- as its income but having regard to its working which the Assessing Office .....

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or privilege in the shape of licence is taxable or not has not been examined. The Tribunal was, accordingly, of the view that the question was required to be examined and that for that purpose the matter was required to be restored to the file of the Assessing Officer to let him determine as to whether on the allotment of licence any taxable income accrued to the assessee or not in accordance with law. 11. Thus, the assessee had initially not raised any contention to the effect that the amount of ₹ 1,10,56,774/- was not taxable. However, before the Tribunal a plea was raised in that regard. The Tribunal noted that such plea was also raised before the Assessing Officer but had not been examined and for the reasons referred to hereinabove, the Tribunal remitted the matter to the Assessing Officer to examine the issue in accordance with law. 12. From the facts as emerging from the record, the assessee had been allotted advance licence under the export scheme in the year under consideration the value whereof as stated by the assessee was ₹ 1,10,56,774/-. While before the Assessing Officer as well as the Commissioner (Appeals), the assessee claimed deduction under section 8 .....

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