2013 (1) TMI 43

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....e completed by accepting the returns under Section 143(1) of the Income Tax Act, 1961 (hereinafter called the Act). Subsequently noticing that the income chargeable to tax has escaped assessment within the meaning of Section 147 of the Act, notice was issued under Section 148. The issue that arose was regarding the deduction claimed while computing the deduction under Section 80 HHC more specifically the deduction claimed with respect to the profit on sale of Duty Entitlement Pass Book (DEPB) (hereinafter referred to as DEPB). The assessing authority found that pursuant to the amendment brought in, in the year 2005, every assessee having turnover exceeding Rs.10 crores, for claiming entitlement of profits on sale of DEPB under Section 80 HH....

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....d considered by the Tribunal was only with respect to the reopening of the assessment under Section 147. Whether the assessing officer was entitled to withdraw the deduction in respect of DEPB incentive on the basis of the subsequent amendment. The Tribunal held that since in a similar situation the jurisdictional High Court has upheld the order of the assessing officer under Section 154; there is no infirmity in the action taken under Section 147. The assessee does not challenge the said finding in the instant appeal.   4. The present appeal has been filed raising the following question of law:- "In the facts and circumstances of the case, ought not the Tribunal have allowed the Appeal filed by the assessee more showing the view of ....

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....face value. The issue based on the Supreme Court decision would be the bifurcation of the face value of DEPB and profits derived from sale of DEPB under sub section (iiib) & (iiid) of Section 28 of the Act. This issue was not raised before the Tribunal or considered by the Tribunal in the order which is appealed herein. 6. The learned counsel for the assessee then would contend that the retrospective amendment made by the Finance Act 2005 classifying exporters into those having turnover less than Rs.10 crores and above Rs.10 crores and also imposing conditions for claim of deduction under Section 80 HHC on the latter; more specifically on the profit derived by sale of DEPB; has been struck down by the High Court of Gujarat at Ahmedabad. &n....

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....ion is confined to the assessment of the income and the tax under the provisions of the Act. Whether the provisions are good or bad is not their concern. But, it is said that s.66 of the Act makes all the difference. Section 66 is in two parts. Under s.66(1), within the prescribed time, on an application made by an assessee or the Commissioner, the Appellate Tribunal shall refer to the High Court any question of law arising out of such order; if the Appellate Tribunal refuses to state a case, on an application filed by either of them, the High Court may require the Appellate Tribunal to state the case and to refer the same to it accordingly. On a reference made by the Appellate Tribunal to the High Court, the High Court shall decide the qu....