2009 (1) TMI 927

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....n filed after a delay of 322 days. The assessee has filed an application for condonation of delay in filing the present appeal against the order passed under Section 263 of the Act by the learned Commissioner. In the application for condonation of delay, the assessee has submitted that assessee was under the bona fide belief that the matter with regard to the working of deduction under Section 80HHC vis-à-vis Section 80-IA/80-IB shall be made by the assessing officer freshly as the learned Commissioner has set aside the assessing officers original order and remanded the matter back to him for his fresh consideration But, later on, it was realized by the assessee that the learned Commissioner in his order under Section 263 has made an observation that the deduction under Section 80HHC is to be reduced by the deduction already allowed under Section 80-IA/80-IB of the Act, and the thus, the assessing officer would decide the issue only order passed under Section 263 of the Act. The assessee was then advised by his counsel that an appeal against the order under Section 263 of the Act should have been filed. Therefore the assessee without any further delay has filed this appeal. ....

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....w and after giving reasonable opportunity to the assessee. 7. The learned Commissioner in his order has also mentioned certain decisions of learned Commissioner (Appeals) in some other cases deciding the issue in favour of the assessee but learned Commissioner with due regards to his colleagues was unable to agree with the view taken by them. This itself makes it clear that the issue involved in this appeal was a debatable one. In the order passed by the Tribunal, Delhi Bench D, Delhi, in the assessees own case for the assessment year 2001-02, the Tribunal has made a reference to the various orders, which are in favour of the assessee including the decision of Hon'ble Madras High Court in the case of SCM Creations v. Asstt. CIT (2008) 218 CTR (Mad) 126. The contrary decision referred to in the order is the decision of Tribunal, Delhi Bench, in the case of Nodi Exports us. Asstt. CIT, order dated 25-7-2008. This issue is thus, fully covered by the Tribunals decision dated 12-9-2008 in assessees own case for the assessment year 2001-02, and therefore, the present order passed by the learned Commissioner (Appeals) under Section 263 deserves to be set aside for the similar reasons....

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....rments and Ors. (2007) 108 ITD 49 (Chen)(SB), where the question was whether relief under Section 80-IA should be deducted from profits and gains of business before computing relief under Section 80HHC of the Act. 9. We therefore, have to see that on 17-3-2006, when the learned Commissioner passed the order under Section 263 of the Act whether there were two different views on the aforesaid issue. In this connection, the following decisions decided in favour of the assessee holding that deduction under Section 80HHC is available on profits without reducing it by the deduction already allowed under Section 80-IB may be referred to: Decisions on Section 80-IA(9) available as on 17-3-2006, i.e., the date of the order under Section 263 passed by the Commissioner: Name of the decision Date Infavour/against the assessee Paper book page Nos. Decision of the Bangalore Bench of the Tribunal in the case of Mittal Clothing Co. v. Dy. CIT (2005) 4 SOT 626 (Bang) 20-6-2005 Favour 195-198 Decision of the Jaipur Bench of the Tribunal in the case of Toshica Creation v. ITO (2005) 96 TTJ (Jp-Trib) 651 (ITA No. 613/Jp/2005) 19-7-2005 Favour 199-201 Decision of the Bangalore....

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....time. 11. In this connection, we may rely upon the decision of Tribunal, Delhi Bench E New Delhi, in the case of Anil Kumar Rastogi v. CIT, order dated 8-2-2008 in ITA Nos. 2627 and 2628/Del/2005 pertaining to the assessment years 2001-02 and 2002-03 where the Tribunal has held as under: 8. We have heard both the parties. In these cases the assessee filed entire information before assessing officer. The assessing officer allowed deduction under Sections 80HHC and 80-IB on the same profits without giving effect to the provisions of Section 80-IA(9) of the Act. In other words, the assessing officer allowed deduction under Section 80HHC without reducing the profits of business by the amount of deduction allowed under Section 80-IB. While determining the profits of business, the assessing officer has not reduced the DEPB receipts, rebates and discounts. This view taken by assessing officer, according to the learned Commissioner, is not correct. On the other hand, according to learned Authorised Representative of the assessee, in a case where two views are possible, one of the views adopted by the assessing officer cannot be taken as erroneous insofar as prejudicial to the interest ....