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2016 (7) TMI 1322 - ITAT MUMBAI

2016 (7) TMI 1322 - ITAT MUMBAI - TMI - Denial of deduction u/s 80HHC - deduction u/s 80HHC was denied to the main exporter also, to whom the assessee (a supporting manufacturer) had sold its goods - Held that:- As it has been held by Hon’ble Gujarat High Court in the case of Avani Exports & Others [2012 (7) TMI 190 - GUJARAT HIGH COURT] that the amendment made by Taxation Laws (Amendment) Act 2005 in section 80HHC to curtail the benefit of u/s 80HHC on the amount of incentive received by the ma .....

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rcumstances, we find that Ld. CIT(A) has rightly allowed the benefit of deduction u/s 80HHC to the assessee and therefore, we find nothing wrong in the order of Ld. CIT(A) and therefore, the same is upheld. - If the assessee is allowed u/s 80HHC then it cannot be allowed deduction u/s 80IB - Held that:- We send this issue back to the file of the AO who shall examine the facts and allow the deduction to the assessee u/s 80HHC as well as u/s 80IB so long as the aggregate amount of deduction do .....

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(DR) For the Respondent : P. J. Pardiwalla, Vasanti Patel (AR) ORDER These appeals belong to different assessees of same group arising in different assessment years involving identical issues and therefore these were heard together and being disposed by this common order. 2. During the course of hearing, arguments were made by Shri P.J. Pardiwalla & Ms. Vasanti Patel, Authorised Representatives (ARs) on behalf of the Assessee and by Shri G.M. Doss & Shri E. Shreedhar, Departmental Repres .....

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upporting manufacturer) had sold its goods. 3.1. We have heard both the parties on this issue in detail and also gone through the orders of the lower authorities as well as copies of judgment placed before us. The brief background of this case is that assessee is supporting manufacturer, selling its goods to the export house namely M/s. Allana Sons Ltd, who had issued disclaimer certificate in favour of the assessee u/s 80HHC and accordingly, the assessee claimed benefit of deduction u/s 80HHC o .....

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s 80HHC in the case of present assessee also solely on the ground when the main exporter i.e. ASL as itself being denied the benefit of deduction u/s 80HHC, therefore, consequently, the assessee should also be denied the benefit of deduction u/s 80HHC. Accordingly, the claim made by the assessee u/s 80HHC for ₹ 16,87,12,722/- on the turnover of ₹ 97,59,61,941/-(disclaimed by ASL in favour of the assessee) was withdrawn by the AO. 3.2. Being aggrieved, the assessee filed an appeal bef .....

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d therefore, on facts also the assessee is entitled for deduction u/s 80HHC. 3.3. Being aggrieved, the revenue filed an appeal before the Tribunal on the ground that Ld. CIT(A) ought not to have allowed the benefit of deduction u/s 80HHC in the light of judgment of Hon ble Supreme Court in the CIT v. IPCA Laboratories Ltd. 266 ITR 521 (SC) wherein it was held that in case there was loss from export activities, then the export house cannot pass on the benefit of deduction u/s 80HHC by way of issu .....

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gh Court had found that deduction u/s 80HHC was allowable in the hands of ASL as per law and facts. Thus, the whole premise on which the deduction was disallowed in the hands of the assessee ceases to exist and therefore the deduction has to be allowed to the assessee. Second argument made by the assessee was that this controversy has been resolved in the judgment of Hon ble Banglore Bench in the case of Shamanur Kallappa & Sons vs. ACIT 23 DTR (Bang)(Trib) 269 which has been subsequently up .....

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disallowance made u/s 40A(3) has been deleted by the Ld. CIT(A) against which revenue has not filed any appeal. Thus, main issue on which Reasons were recorded has been settled and therefore, no other disallowance would be sustainable as reopening would become bad in law. 3.4. Per contra, Ld. DR relied upon the judgment of Hon ble Supreme Court in the case of IPCA Laboratories Ltd. v. CIT (supra) and relied upon the order of the AO. We have considered the entire matrix and facts of this case and .....

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have considered the rival submission. It is well settled that a notice to reopen the assessment under section 148 of the Act can only be issued if the Assessing Officer has reason to believe that income chargeable to tax has escaped assessment. This reason to believe on the part of the Assessing Officer has not to be on the basis of change of opinion i.e. where Assessing Officer has had occasion to consider an issue during the assessment proceeding under section 143(3) of the Act. In this case, .....

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impugned notice is not sustainable. 3.5. It is further noted by us that, on merits also Hon ble High Court observed that deduction u/s 80HHC was actually allowable to the said export house the observations of the Hon ble High Court are very useful and these are reproduced hereunder for the sake of ready reference: In any view of the matter, the stand of the petitioner on merits with regard to interest income being included while computing the claim for deduction under section 80HHC of the Act ha .....

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nuary 2005 will not be sustainable. In view of all the above reasons, we set aside the impugned notice date 10th January 2005. 3.6. Thus, it is noted by us that the Hon ble High Court has not only quashed the reassessment order but also held that deduction u/s 80HHC is actually allowable to ASL. It is further noted by us that it has been held by Hon ble Gujarat High Court in the case of Avani Exports & Others dated 02.07.2012 that the amendment made by Taxation Laws (Amendment) Act 2005 in s .....

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upon which the deduction was denied to the assessee, ceases to exist. Under these facts and circumstances, we find that Ld. CIT(A) has rightly allowed the benefit of deduction u/s 80HHC to the assessee and therefore, we find nothing wrong in the order of Ld. CIT(A) and therefore, the same is upheld. Since, we have allowed the relief to the assessee on the first argument itself therefore, we treat other arguments as academic in nature and therefore, we are not dealing with the same at this stage. .....

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l as u/s 80IB should not exceed the amount of profits earned. The reliance has been placed in this regard on the judgment of Hon ble Bombay High Court in the case Associated Capsules Pvt Ltd vs. DCIT 322 ITR 42. 4.1. Per contra Ld. DR relied upon the order of the lower authorities. We have gone through the orders passed by the lower authorities as well as judgment of Hon ble Bombay High Court in the case of Associated Capsules Pvt Ltd (supra). In view of judgment of Hon ble Bombay High Court, we .....

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and appeal of the revenue is dismissed. Now we shall take up appeals of the Assessee & Revenue in the case of Frigerio Conserva Allana Ltd in ITA No.4214/Mum/2011 & ITA No. 5529/Mum/2011 for A.Y. 2001-02 5. It is noted that Ground Nos. 1 & 2 of assessee s appeal and Ground No.1 of Revenue s appeal are identical to A.Y. 2000-01 and and since no distinction in facts or legal position has been brought out by either party before us, therefore, AO is directed to follow our order for A.Y. .....

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he Assessee & Revenue in the case of Frigerio Conserva Allana Ltd in ITA No.4225/Mum/2011 & ITA No. 5530/Mum/2011 for A.Y. 2002-03 8. It is noted that grounds raised in those appeals are identical to grounds raised in A.Y. 2000-01. No distinction has been brought out by other party before us. Thus, ground nos. 1 & 2 of assessee s appeal are allowed and ground no.3 of assessee s appeal is sent back to the file of the AO with the direction as given above and solitary ground raised by t .....

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ition by either party before us and therefore ground no.1 as well as additional ground of assessee s appeal are allowed and solitary ground raised by the revenue is dismissed. 11. As a result, assessee s appeal is allowed and revenue s appeal is dismissed. Now we shall take up appeals of the Assessee & Revenue in the case of Frigerio Conserva Allana Ltd in ITA No.4057/Mum/2011 & ITA No. 5516/Mum/2011 for A.Y. 2004-05 12. It is noted that in this year also grounds raised by the assessee i .....

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nd anything wrong in the order of Ld. CIT(A) and therefore, no interference is called for in the order of Ld. CIT(A) and the same is upheld. 13. As a result, assessee s appeal is allowed and revenue s appeal is dismissed. Now we shall take up appeals of the Assessee & Revenue in the case of Frigorifico Allana Limited in ITA No.4078/Mum/2011 & ITA No.5513/Mum/2011 for A.Y. 2002-03: 14. It is noted that in this case the issues raised are absolutely identical. The export house is same i.e. .....

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