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TMI Blog2011 (4) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... P. No. 9092 of 2011 can be taken as representing the facts in all the three writ petitions. The petitioner, a company engaged in the business of aqua farms and power generation, filed their return of income for Rs. 2,31,958. They claimed deduction under section 80HHC of the Income-tax Act ("the Act" for short) for Rs. 59,69,067 placing support on the disclaimer certificates issued in their favour by M/s. Adani Exports Ltd., Ahmedabad, M/s. Water Base Ltd., Madras, M/s. Vivil Exports Ltd., Mumbai, and the Silk Base Co. Ltd., Chennai, through whom the petitioner had exported their marine products. The return was accepted under section 143(1) of the Act by the assessing authority by his order dated February 14, 2000. Thereafter, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Supreme Court in IPCA Laboratory Ltd. [2004] 266 ITR 521 (SC) ; AIR 2004 SC 3046, the judgment in IPCA Laboratory Ltd. [2004] 266 ITR 521 (SC) ; AIR 2004 SC 3046, was pronounced after they had filed their return for the assessment year 1999-2000 ; the assessment was completed on December 26, 2006, on the basis of the said decision of the Supreme Court ; a copy of the assessment order was served on them on January 11, 2007 ; and, as such, the interest charged under sections 234B and 234C of the Act for Rs. 23,76,542 should be waived as they were disabled by genuine and reasonable causes from payment of advance tax. 4. In the impugned order, whereby the petitioner's request for waiver of interest was rejected, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner's case falls squarely within the ambit of the Central Board of Direct Taxes order dated June 26, 2006, and the Central Board of Direct Taxes circular dated January 17, 2006 ; the Assessing Officer had considered the case of only one export house, i.e., M/s. Vivil Export House Ltd., and not the other export houses ; and the petitioner was eligible for waiver of interest as the export houses, which had issued disclaimer certificates in their favour had not claimed the benefit of deduction, under section 80HHC of the Act on the exports. 6. Paras. 2(ix), (x) and (xi) of the impugned order dated December 13, 2010, records the submission of the petitioner that their case does not fall within the purview of the Central Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h goods or merchandise to an export house or a trading house for the purposes of export. 8. On section 80HHC of the Act being amended retrospectively the Central Board of Direct Taxes ("the CBDT"), issued Circular dated January 17, 2006. The said circular records that the amended section 80HHC provided that profits on sale of DEPB credits or duty free replenishment certificates would be treated at par with duty drawback for the purposes of proportionate increase of profits derived from exports computed under clauses (a) to (c) of section 80 HHC(3) of the Act. As the amendment relating to DEPB Scheme and DRC was brought into the statute with retrospective effect, the Central Board of Direct Taxes Circular dated January 17, 2006, prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the assessee during such financial year is found to be less than the amount of advance tax payable on his current income, and the assessee is chargeable to interest under section 234B or section 234C, and the Chief Commissioner/Director General is satisfied that this a fit case for reduction or waiver of such interest." 10. To fall within the ambit of clause 2(c) of the Central Board of Direct Taxes order dated June 26, 2006, for being entitled to waiver of interest charged under sections 234B and 234C of the Act, the following conditions must be satisfied : (i) Income of the assessee should not chargeable to income-tax on the basis of an order passed by the High Court within whose jurisdiction he is assessable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short payment of advance tax during the financial year because of such a situation. It is evident, therefore, that the conditions laid down in the Central Board of Direct Taxes order dated June 26, 2006, are not satisfied in the case on hand. The petitioner was charged interest, under sections 234B and 234C of the Act, at the stage of reassessment and failure, if any, by the Assessing Officer in not taking into consideration the factum of export of merchandise through the four export houses, could not have been, and was rightly not, taken into consideration by the respondent, as these are matters for examination only in an appeal preferred against the assessment order and not for the respondent to consider while examining a claim for waive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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