TaxTMI 
TaxTMI 
2019 (5) TMI 1263
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.... of the Income Tax Act, 1961 ("the Act"), vide order dated 16.03.2004 on total income of Rs. 1,57,37,189/- on account of disallowance of deduction u/s 80HHC of the said Act amounting to Rs. 1,56,83,432/- and certain ad-hoc disallowance of Vehicle running & maintenance, telephone expense etc. 4. The appeal preferred by the assessee was dismissed by the CIT(A) by order dated 15/09/2004 upholding the findings of the Ld. Assessing Officer and disallowing the claim of deduction u/s 80HHC. Such an order was carried by the assessee in appeal to the Tribunal and a Coordinate Bench of this Tribunal while order dated 28/02/2005 in ITA No. 2479/Del/2004 set aside the order ofthe Ld. CIT (A) regarding the issue of allowability of deduction u/s 80HHC to the assessee and directed the Ld. A.O to recompute the deduction u/s 80HHC of the Act in accordance with the findings given in such order. 5. Being aggrieved by the order of the Tribunal, the assessee preferred appeal to the Hon'ble High Court and the Hon'ble High Court vide order dated 31/1/2012 in ITA No. 959/2005 remitted the issue to the file of the ITAT by observing that : "2. After the present appeal was admitted, th....
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....ow that where an assessee has an export turnover exceeding Rs. 10 crores and has made profits on transfer of DEPB under clause (d) of Section 28, he would not get the benefit of addition to export profits under third or fourth proviso to sub-section (3) of Section 80HHC, but he would get the benefit of exclusion of a smaller figure from "profits of the business" under Explanation (baa) to Section 80HHC of the Act and there is nothing in Explanation (iiid) to Section 80HHC to show that this benefit of exclusion of a smaller 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 to 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 fulfill the conditions set out ....
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.... and the decision of the Apex Court in the case of M/s Topman Exports (supra) and the ITAT relied upon the decision of the Apex Court in the case of Topman Exports (supra) wherein it was held that the assessee was entitled only for the face value of the DEPB despite having export turnover in excess of Rs. 10 Crores and not the profit on sale of DEPB as the assessee's turnover was in access of Rs. 10 crores and quoted the specific para of the decision given by the Hon'ble Apex Court in Topman Exports (supra) wherein profit on sale of DAPB u/s 28(iiid) would not be eligible because of the Export turnover in excess of 10 crores. Ld.CIT(A)did not discuss the impact of decision of the Hon'ble Apex Court in the case of Avani Export and confirmed the findings of the Ld. A.O. 9. The assessee is, therefore, in this appeal before us contending that the authorities below committed an error in not considering the decision of the Hon'ble Apex Court in the case of Avani Export(Supra) and as a matter of fact such a decision covers the facts of this case and holds the fields. 10. Per contra, it is the submission of the Ld. DR that in so far as the orders of the Hon'ble High Court and the....
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.... the matter and by order dated 16/3/2012 recorded that as under:- "3. We have heard both the parties and gone through the material available on record. In this case the AO passed assessment order on 16.03.2004. The learned CIT(A) upheld the order of the AO vide her order dated 15.09.2004.ITAT disposed of assessee's appeal vide order dated 28th February, 2005. Taxation laws (Amendment) Act, 2005 inserted clause(iiid) to sec.28 with retrospective effect from 01.04.1998. As per clause (iiid), any profit on transfer of the Duty Entitlement Pass Book (DEPB) is taxable as business profit. The Taxation Laws (Amendment) Act, 2005 also inserted third and fourth provisos to sec. 80HHC(3) with retrospective effect from 01.04.1992. Since amended provisions of sec.28(iiid) and second to fifth Provisos were not available on Statute when the Assessing Officer, CIT(A) and ITAT passed the orders and since the provisions to sec. 80HHC(3) and clause (Hid) to sec. 28 have been inserted with retrospective effect, we feel it proper to set aside the issue to the file of the Assessing Officer with the directions to examine the claim of the assessee for deduction under sec.80HHC in respec....
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....the issue to the file of the Assessing officer and direct him to compute deduction u/s 80HHC of the Act accordingly." 15. The Tribunal, thereby, remanded the matter to the file of the Ld. Assessing Officer with a direction to compute the direction u/s 80HHC of the Act. In the light of the amended provisions of law and the decision of the Hon'ble Apex Court in the case of Topman Export (Supra). Subsequently, on March, 30, 2015, the Hon'ble Apex Court in the case of Avani Export (Supra) held that having seen the twin conditions and Section 80HHC benefit is not available after 1/4/2005, the cases of exporters having turnover below and above 10 crores should be treated similarly. This order was brought to the notice of the authorities below, but they have not given any consideration to this aspect and on the other hand they have stated that the mandate of the Hon'ble High Court and the Tribunal while remanding the matter to the Tribunal and the Ld. A.O is only to the exemption the claim of the assessee for a deduction u/s 80HHC, in respect of DEPB receipts in the light of the amending provisions of law and the decision of the Apex Court in the case of M/s Topman Exports (supra).....