9911796707
TMI Blog2018 (8) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2003-04. 3.The appeal has been admitted on the following substantial question of law:- Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in applying the decision of the Supreme Court in the case of CIT v. Sterling Foods, 237 ITR 579 (SC), rendered with reference to deduction under Section 80HH of the Income Tax act, to computation of deduction under Section 80HHC of the Act? 4.The Tribunal, by the impugned order, rejected the appeal petition filed by the appellant by following the decision in the case of Commissioner of Income Tax vs. Sterling Foods reported in (1999) 273 ITR 579 (SC). This appeal was entertained primarily on the ground that the decision in the case of Sterling Foods ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions are severable and therefore, these two conditions should be declared as ultra vires and severed. All the writ petitions, which were filed in various States of the Country, were clubbed together and were directed to be heard by the Hon'ble High Court of Gujarat, by the Hon'ble Supreme Court. The Hon'ble High Court of Gujarat, vide judgment in Avani Exports v. Commissioner of Income Tax [(2012) 348 ITR 391(Gujarat)], quashed the impugned amendment only to the extent that the operation of the said section could be given effect from the date of amendment and not in respect of earlier assessment years of the assessees, whose export turnover is above Rs. 10 crores. In other words, the retrospective amendment should not be detr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate the correct legal position. In fact, the assessee while challenging the assessment order before the Commissioner of Income Tax (Appeals), in the memorandum of grounds, has specifically stated that the Assessing Officer erred in not granting proper deduction under Section 80HHC of the Act and in particular, the Assessing Officer is not right in excluding exchange gain of Rs. 2,58,204/- from export turnover and DEPB of Rs. 36,48,697/- in computing Profits of the Business . 11.Thus, this computation necessarily has to be done by the Assessing Officer and not by this Court. 12.One of us (T.S.Sivagnanam, J.), had an occasion to consider similar issue in two writ petitions filed by an assessee, one in W.P.No.13910 of 2008 wherein, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
