TMI Blog2022 (8) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and passing orders afresh. Such an exercise shall be completed by the assessing officer within a period of three months from the date of receipt of a copy of this judgment - T.C.A.Nos.890 to 893 of 2010 - - - Dated:- 27-6-2022 - Honourable Mr. Justice R. Mahadevan And The Honourable Mr. Justice Mohammed Shaffiq For the Appellant : Mrs.R.Hemalatha Standing Counsel For the Respondent : Mr.A.S.Sriraman for Mr.S.Sridhar COMMON JUDGMENT R.MAHADEVAN, J. All the tax case appeals are filed by the Revenue challenging the order of the Income Tax Appellate Tribunal dated 18.12.2009 relating to the assessment years 1999-2000, 2000-01, 2001-02 and 2002-03. 2. By order dated 13.12.2010, the aforesaid tax cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80HHC. 4. Challenging the assessment orders, the assessee preferred appeals before the appellate authority / Commissioner of Income Tax (Appeals)- VIII, who, by separate orders dated 28.01.2008, allowed the appeals filed by the assessee. Aggrieved by the orders of the appellate authority directing the assessing officer to reduce 90% of profit on sale of DEPB, the Revenue preferred appeals before the Tribunal. Following the decision of the Special Bench of Mumbai of the Tribunal in Topman Exports v. Income Tax Officer [(2009) 318 ITR (AT) 87 (Mumbai) (SB), by the common order dated 18.12.2009, the Tribunal partly allowed the appeals filed by the Revenue. Challenging the order of the Tribunal, the Revenue is before this court with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal arising from the aforesaid order of the Mumbai Tribunal was subsequently disposed of by the Mumbai High Court, against which, the assessee preferred SLPs before the Hon'ble Supreme Court and the same were allowed by the decision reported in (2012) 18 taxmann.com 120 (SC). The relevant passage of the said decision is usefully extracted hereunder: 19. Sub-section (1) of Section 80HHC quoted above makes it clear that an assessee engaged in the business of export out of India of any goods or merchandise to which this Section applies shall be allowed, in computing his total income, a deduction to the extent of profits referred to in sub-section (1B) derived by him from the export of such goods or mechandise. Sub-section (1B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is cash assistance against exports and is covered under clause (iiib) of Section 28 will get excluded from the profits of the business of the assessee if such DEPB has accrued to the assessee during the previous year. Similarly, if during the same previous year, the assessee has transferred the DEPB and the sale value of such DEPB is more than the face value of the DEPB, the difference between the sale value of the DEPB and the face value of the DEPB will represent the profit on transfer of DEPB covered under clause (iiid) of section 28 and ninety per cent of such profit on transfer of DEPB certificate will get excluded from profits of the business . But, where the DEPB accrues to the assessee in the first previous year and the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as export turnover bears to the total turnover of the business carried on by the assessee. In this first proviso, there is no addition of any sum referred to in clause (iiid) or clause (iiie). Hence, profit on transfer of DEPB or DFRC are not to be added under the first proviso. Where therefore in the previous year no DEPB or DFRC accrues to the assessee, he would not be entitled to the benefit of the first proviso to sub-section (3) of section 80HHC because he would not have any sum referred to in clause (iiib) of section 28 of the Act. The second proviso to sub-section (3) of section 80HHC states that in case of an assessee having export turnover exceeding Rs.10 crores during the previous year, after giving effect to the first proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all figure from profits of the business will not be available to an assessee having an export turnover exceeding Rs.10 crores. In other words, where the export turnover of an assessee exceeds Rs.10 crores, he does not get the benefit of addition of ninety per cent of export incentive under clause (iiid) of Section 28 of his export profits, but he gets a higher figure of profits of the business, which ultimately results in computation of a bigger export profit. The High Court, therefore, was not right in coming to the conclusion that as the assessee did not have the export turnover exceeding Rs.10 crores and as the assessee did not fulfil the conditions set out in the third proviso to Section 80HHC (iii), the assessee was not entitled to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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