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TMI Blog2022 (6) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in SMW(A) No.3 of 2020, the period of limitation for filing the appeals under general laws and all special laws falling between 15/3/2020 and 28/02/2022 shall be excluded for calculating the delay. Considering the same, we hereby condone the delay of 111 days in filing the present appeals before the Tribunal and proceed to adjudicate the cases on merits. 3. The brief facts of the case are that the assessee is a limited company engaged in the business of export of frozen shrimp and other sea foods filed its return of income for the AY 2017-18 declaring a total income of Rs. 52,30,54,010/-. After processing the return of income U/s. 143(1), the case was selected for complete scrutiny under CASS and accordingly statutory notices U/s. 143(2) and 142(1) were issued in electronic format to the assessee calling for the information. The assessee's representative filed its reply on line through e-filing portal. The AO on examination of the information furnished by the assessee made a disallowance U/s. 14A r.w.r 8D for Rs.28,57,443/-. Thereafter, the Ld. Pr. CIT invoking the powers vested U/s. 263 of the Act noticed that the assessment order passed is prima facie erroneous and prejudici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Pr. CIT ought to have appreciated that the aforesaid issue on which the Hon'ble Pr. CIT had sought to revise the assessment order is a conscious view adopted by the Ld. AO, which is not shown to be erroneous and consequently, the jurisdiction under section 263 of the Act stands ousted and accordingly the impugned order passed deserves to be cancelled, under the facts and circumstances of the appellant's case. 6. The Hon'ble Pr. CIT is justified in passing the order U/s 263 of the Act, without giving proper opportunity to the appellant, under the facts and circumstances of the case. 7. The Hon'ble Pr. CIT ought to have appreciated the fact that appellant's case, will not fall under sub-section(1), explanation 2(b) of section 263 of the Act, under the facts and circumstances of the case. 8. The Hon'ble Pr. CIT is not justified to conclude that the deduction U/s. 80IB(11A) of the Act, of an amount being Rs. 22,82,85,812/- was allowed by the Ld. AO without properly examining the issue, under the facts and circumstances of the case. 9. The Hon'ble Pr. CIT, is not justified in directing the Ld. AO to re-do the assessment by taking into consideration the judgment of Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 and hence the ratio laid down in Liberty India (supra) should not be valid. The Ld. AR also submitted that if there is no export sales, the assessee is not entitled for these incentives and hence it has direct link and nexus with the activities of the assessee industrial undertaking entitling deduction U/s. 80IB(11A) of the Act. The Ld. AR also relied on the following judgments: 1. CIT vs. Amit Corporation [2012] 21 taxmann.com 64 (Guj.) 2. CIT vs. Sun Beam Auto Limited - 332 ITR 167 3. CIT vs. Bariel India Ltd - 203 ITR 108 4. CIT vs. Vikas Polymers - 194 Taxman 57 5. Sarvana Developers vs. CIT - ITA No. 620/Bang/2011 & 48/Bang/2013 6. Malabar Industrial Co., Ltd vs. CIT - 243 ITR 83 7. CIT vs. MAX India Limited - (2013) 354 ITR 501 8. CIT & Anr. Vs. DG Gopala Gowda [2013] 354 ITR 501 9. CIT vs. Ashish Rajpal - [2010] 320 ITR 674 10. CIT vs. Contimeters Electricals (P) Ltd - 317 ITR 249. 6.1. Further, relying on the aforesaid judgments, the Ld. AR submitted that the claim of deduction U/s. 80IB(11A) be allowed by refraining the order of the Ld. Pr. CIT. 6.2 Per contra, the Ld. DR submitted that the Ld. Pr. CIT has rightly considered the decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment years as specified in this section. 80IB(11A) The amount of deduction in a case of an undertaking deriving profit from the business of processing, preservation and packaging of fruits or vegetables or meat and meat products or poultry or marine or dairy products or from the integrated business of handling, storage and transportation of foodgrains, shall be hundred per cent of the profits and gains derived from such undertaking for five assessment years beginning with the initial assessment year and thereafter, twenty-five per cent (or thirty per cent where the assessee is a company) of the profits and gains derived from the operation of such business in a manner that the total period of deduction does not exceed ten consecutive assessment years and subject to fulfilment of the condition that it begins to operate such business on or after the 1st day of April, 2001 : Provided that the provisions of this section shall not apply to an undertaking engaged in the business of processing, preservation and packaging of meat or meat products or poultry or marine or dairy products if it begins to operate such business before the 1st day of April, 2009." We also find it appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st in the production of goods of a particular business would also have to be included under the head "profits and gains of business or profession", and not under the head "income from other sources". 29. For the reasons given by us, we are of the view that the Gauhati, Calcutta and Delhi High Courts have correctly construed Sections 80-IB and 80-IC. The Himachal Pradesh High Court, having wrongly interpreted the judgments in Sterling Foods and Liberty India to arrive at the opposite conclusion, is held to be wrongly decided for the reasons given by us hereinabove." 10. Therefore, in view of the subsequent decision of the Hon'ble Supreme Court in the case of Meghalaya Steel Ltd (supra), the findings recorded by the authorities below based on the decision of the Hon'ble Supreme Court in the case of Liberty India (supra) cannot be held as sustainable as the Hon'ble Supreme Court in para 29 of its decision in Meghalaya Steel Ltd (supra) held that the Hon'ble Himachal Pradesh High Court having wrongly interpreted the judgment in the case of CIT vs. Sterling Foods [1999] 104 Taxman 204 and Liberty India (supra) to arrive at the opposite conclusion has held to be wrongly decided. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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