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TMI Blog2011 (9) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... banker‟s certificate confirming margin money has been kept shall be deemed that facts have been fully discussed during the course of Asstt. Proceedings now merely on the change of opinion as decided by Delhi High Court and Supreme Court given above an initiation of proceedings deserves to be withdrawn. - ITA No.466 of 2011 - - - Dated:- 8-9-2011 - MR. JUSTICE A.K. SIKRI, MR. JUSTICE M.L. MEHTA, JJ. For Appellant: Mr. Deepak Aggarwal, Advocate with Mr. R.K. Chauhan, Advocate. For Respondent: Mr. Abhishek Maratha, Sr. Standing Counsel with Ms. Anshul Sharma, Advocate. A.K. SIKRI, J. (ORAL) 1. Admit. 2. The following substantial question of law arises for consideration: Whether under the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the end of F.Y. 2000-01 should not be excluded from the export turnover for calculation of deduction u/s 80 HHC. 2. Please explain why the interest income of ₹ 16.01 lacs should not be deducted from the profit of business for calculation of deduction u/s 80 HHC of the IT Act. 5. The assessee objected to the aforesaid notice, which objection was rejected. Thereafter, assessment was framed on 10.10.2008 re-computing the deduction under Section 80HHC of the Act by including sum of ₹ 8 lacs received in foreign exchange as well as interest income of ₹ 16,00,661/- for the purpose of calculation under Section 80HHC of the Act. 6. The assessee preferred appeal thereagainst before the CIT (A), which was partly allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ‟ recorded by the AO for reopening of the case. These reasons are as follows: Return of income in this case was filed on 30-10-2001 declaring an income of Rs.34,63,640/-. Return of income was processed u/s 143(1) of the IT Act at returned income on 10-09-2002. Assessment u/s 143(3) of the IT Act was made on 25-02-2003 at income of Rs.34,63,640/-. On perusal of the assessment records it is found that out of the total export turnover of Rs.6929.17 lakh convertible foreign exchange of Rs.8 lakh was not received within the stipulated period of six months. It was further noted that 90% of interest income of Rs.19.01 lakh was also not deducted from the profit of business. The omission resulted in excess allowance of deduction of Rs.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that all facts were disclosed fully and truly before the Assessing Officer. 12. We are not in agreement with the aforesaid approach of the Tribunal. 13. That the entire material was placed by the assessee before the AO on specific query put by the AO, which was for the AO to apply his mind on the same. We have to keep in mind that the impugned notice issued after the expiry of four years from the end of relevant assessment year. It was, in fact, done merely because the AO did not inquire from a particular angle and for this assessee cannot be faulted with. It cannot be said that the assessee had not furnished the details of the nexus of interest received and interest paid and on that basis faulting the assessee by alleging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect. However, the photography of such detail and the banker‟s certificate filed during the course of Asstt. Proceedings are also enclosed for your ready reference. However, further again probably on audit objection the notice dated 12/02/2004 u/s 154 was issued by taking the same facts that the receipt of payment in foreign exchange is beyond the Period as the details filed by the assessee company. Again it was brought to the notice that the Ld. A.O. who framed an assessment has considered all the factors and his attention was also invited to the banker‟s certificate by the filing a written submission vide letter dated 23rd February, 2004. The photocopy of the letter is enclosed. It was recorded on the order sheet and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s certificate confirming the facts that margin money has been kept with the banker for the following purpose:- i) As cash collateral for waiver of ECGA Cover. ii) As margin against issue of bank guarantee by us on behalf of the company. iii) As margin against issue of letters of credit by us on behalf of the company. The contents of the certificate evidently proves that such deposits are related to the business requirement. The photocopy of such certificate filed during the course of Asstt. Proceedings is enclosed. As the facts submitted above under these circumstances, where these facts have been fully discussed during the course of Asstt. Proceedings now merely on the change of opinion as decided by Delhi High Court and Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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