Court In The Case Of Commissioner Of Income Tax v. K.s.jhaveri, J

O/TAXAP/255/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 255 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ A.C.I.T.....Appellant(s)Versus MULTIPLE EXPORTS....Opponent(s) ================================================================ Appearance: MR SUDHIR M MEHTA, ADVOCATE for the Appellant(s) No. 1MR MANISH J SHAH, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 12/11/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. The Revenue has filed this appeal u/s.260A of the Income Tax Act, 1961 (for short, the Act) being aggrieved by and dissatisfied with the order passed by the Income Tax Appellate Tribunal (for short, the ITAT) in I.T.A. No. 4528/Mum/2003 dated 22.10.2003. 2. While admitting the appeal on 28.02.2005, the following substantial question of law came to be formulated; ”Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right directing the Assessing Officer to allow deduction under Section 80HHC of the Income Tax Act, even though the assessee has not earned any profit from the export of goods or mechandise?” 3.Mr. Sudhir Mehta learned Standing Counsel appearing for the Revenue submitted that because of the legislative amendment to Section 80HHC under the Taxation Laws (Amendment) Act, 2005, the issue is now covered against the assessee and therefore, the matter may be remanded to the assessing Officer. 4.Mr. Shah, learned Advocate appearing for the respondent fairly conceded that the matter requires reconsideration. Mr. Shah has relied upon a decision of this Court in the case of Commissioner of Income Tax vs. Ravi Exports Ltd reported in [2014] 41 taxmann.com 489 (Gujarat) wherein this Court has held that for allowance of relief under section 80HHC(3) only profit and not entire sales proceeds arising out of DEPB is required to be reduced/considered for computing quantum of deduction. 5.This Court vide Income Tax Reference No. 3 of 2000 in a similar case where the issue involved had been covered against the assessee because of the legislative amendment to Section 80HHC(3) under the Taxation Laws (Amendment) Act, 2005 remanded the matter so that the case could be considered afresh after considering amendment to Section 80HHC and after hearing the parties. Court in the case of Commissioner of Income Tax vs. Ravi Exports Ltd reported in [2014] 41 taxmann.com 489 (Gujarat) wherein this Court has held that for allowance of relief under section 80HHC(3) only profit and not entire sales proceeds arising out of DEPB is required to be reduced/considered for computing quantum of deduction. 5.This Court vide Income Tax Reference No. 3 of 2000 in a similar case where the issue involved had been covered against the assessee because of the legislative amendment to Section 80HHC(3) under the Taxation Laws (Amendment) Act, 2005 remanded the matter so that the case could be considered afresh after considering amendment to Section 80HHC and after hearing the parties. 6. We have heard learned counsel for both the sides and have perused the record of the case. Considering the amendment to Section 80HHC(3), the matter is remanded to the Assessing Officer, who shall consider the issue afresh in light of the amended provision and shall render its decision, after considering the contentions raised by both the sides. The Assessing Officer shall decide the issue afresh being uninfluenced by the observations made by the Tribunal as also by this Court. The impugned orders passed by the Tribunal as well as CIT(A) are set aside. Appeal is allowed to the aforesaid extent. (K.S.JHAVERI, J.) divya O/TAXAP/255/2004 JUDGMENT (K.J.THAKER, J)