IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH `F' NEW DELHI)
BEFORE SMT DIVA SINGH, JUDICIAL MEMBER
AND
SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
I.T.A. No.3620/Del/2013
Assessment year : 1999-2000
ACIT, M/s Punjab Stainless Steel Ltd.,
Circle-19 (1), A-70, Wazirpur Industrial Area,
New Delhi. V. New Delji.
(Appellant) (Respondent)
/GIR/No.AAAFP-
AAAFP-4223-
PAN /GIR/No.AAAFP 4223-G
Appellant by : Ms. Meenakshi Vohra, Sr. DR.
Respondent by : Adjournment Application.
ORDER
PER TS KAPOOR, AM:
This is an appeal filed by the revenue against the order of Ld CIT(A)
darted 19.2.2013. The grounds of appeals taken by the revenue are as
under:-
1. On the facts and in the circumstances of the case and in law, the
Ld CIT(A) has erred in deleting disallowance made out of
deduction u/s 80HHC claimed by the assessee which was made
by the Assessing Officer u/s 143(3)/148 As a result of
amendment of section 80 HHC(3) with retrospective effect from
1.4.1998.
2. The appellant craves leave to amend or alter all or any of the
aforesaid grounds of appeal and amend, alter or add any other
ground of appeal.
2 ITA No3620/Del/2013
2. At the time of hearing, we found that assessee had moved an
adjournment application. However, while going through the file, we
observe that the issue was squarely covered against the revenue and
therefore appeal could be disposed off even in the absence of assessee
or its counsel.
3. The Ld DR was asked as to whether the issue was covered
against the revenue to which she replied in the positive. Therefore,
after going through the relevant material, the order was pronounced
against revenue and appeal was dismissed.
4. The brief facts of the case are that Assessing Officer had
reopened the case of assessee u/s 148 on the basis of an amendment
in section 80 HHC(3) which was with effect from 1.4.1998 and
restricted the claim of assessee u/s 80HHC. The Ld CIT(A), however,
deleted the disallowance made by the Assessing Officer holding that
the amendment was not applicable retrospectively as held by the
Hon'ble Gujarat High Court in the case of Advani Exports & Others v.
CIT o(2012) 252 CTR 473. The relevant findings of Ld CIT(A) are
contained in para 8.2. & 8.3. which are reproduced as under:-
"8.2. The appellant has also relied upon the decision of the
Hon'ble Gujarat High Court in the case of Advani Exports &
Others v. CIT (2012) 252 CTR (Guj.) 473. It is seen that it has
been specifically mentioned in the First para of this judgment
that "all the writ applications were taken together pursuant to
the order passed by the Supreme Court of India. By the said
order, the apex court had transferred these matters pending
before various High Courts to this Court for considering whether
3 ITA No3620/Del/2013
the severable part of the third and fourth proviso to section
80HHC was ultra vires. After detailed discussion the Hon'ble High
Court quashed the impugned amendment to the extent that the
operation of the amended section could be given effect from the
date of amendment and not in respect of the earlier assessment
years in the case of assessee whose export turnover was more
than `.10 crores.
The conclusion the abovementioned case of Advani Exports was
as under:-
"Amendment of sec. 80HHC(3) by insertion of certain conditions
in the third and fourth proviso thereto with retrospective effect
by Taxation Laws (Second Amendment) Act, 2005 is violative of
Art, 14 of the Constitution as it denies the benefit of deduction
under section 80HHC to the class of assessees having export
turnover of more than `.10 crores whose assessments were still
pending while allowing such benefit to the same class of
assessees whose assessments have already been concluded, it is
also invalid for the reason that its retrospective operation takes
away the benefit from one class of assessee, impugned
amendment is quashed to the extent that the operation of
section could be given effect from the date of amendment and
not in respect of earlier assessment years in the case of
assessee whose export turnover is more than `.10 crores.
8.3. In view of the above, the restriction of deduction u/s 80HHC
made by the order u/s 143(3)/148 dated 29.12.2006 cannot be
sustained and is hereby deleted."
4 ITA No3620/Del/2013
5. We find that the case of the assessee relates to assessment year
1999-00 and in view of the Hon'ble Court's judgment, the amendment
is not applicable to this year. Therefore,, Ld CIT(A) has rightly decided
the case in favour of assessee and we do not find any infirmity in the
same.
6. In the result, the appeal filed by the revenue is dismissed.
7. Order pronounced in the open court on 3rd day of December,
2013.
Sd/- Sd/-
(DIVA SINGH) (T.S. KAPOOR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dt. 03.12.2013.
HMS
Copy forwarded to:-
1. The appellant
2. The respondent
3. The CIT
4. The CIT (A)-, New Delhi.
5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.
True copy.
By Order
(ITAT, New Delhi).
Date of hearing 5.12.2013
Date of Dictation 5.12.2013
Date of Typing 5.12.2013
Date of order signed by 3.10.2013
both the Members &
pronouncement.
Date of order uploaded on net
& sent to the Bench concerned.
5 ITA No3620/Del/2013
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