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TMI Blog2015 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. - Decided in favour of assessee. - I.T.A. No.2622/Ahd/2011 - - - Dated:- 10-7-2015 - Shri G.D. Agarwal and Shri Kul Bharat, JJ. For the Petitioner : Ms.Urvashi Shodhan, A.R. For the Respondent : Shri Santosh Karnani, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-6, Ahmedabad ( CIT(A) in short) dated 17/08/2011 pertaining to Assessment Year (AY) 2003-04. The Assessee has raised the following grounds of appeal:- 1. Ld.CIT(A) erred in law and in facts in confirming the erroneous order of the ld.AO holding that the deduction under s.80HHC was to be computed at NIL and not granting deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of interest u/s.234A, 234B, 234C and 234D of the act is unjustified, since the disallowances are based on retrospective amendments. 8. Initiation of penalty proceedings u/s.271(1)(c) of the act are unjustified. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal. 2. Briefly stated facts are that this is second round of litigation. In the earlier round, the Tribunal (ITAT C Bench Ahmedabad) vide its order dated 30/10/2009 was pleased to direct the AO to compute deduction u/s.80HHC of the Income Tax Act, 1961 (hereinafter referred to as the Act ) in accordance with the decision of ITAT, Special Bench, Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Avani Exports vs. CIT reported at 348 ITR 391(Guj.) has quashed the amendment to the extent that the operation of the impugned provision should be given effect from the date of amendment and not in respect of earlier assessment years of the assessee whose export turnover is above ₹ 10 crores. She submitted that this judgment of the Hon ble High Court of Gujarat has been further affirmed by the Hon ble Supreme Court in the case of CIT vs. Avani Exports reported at (2015) 58 taxmann.com 100(SC) by holding that the cases of exporters having a turnover below ₹ 10 crores and those above ₹ 10 crores would be treated similarly during period prior to amendment. 3.1. On the contrary, ld.Sr.DR supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of M/s.Topman Exports (supra), we restore the matter to the file of Assessing Officer. 4.1. There is no dispute with regard to the fact that the decision of the Special Bench rendered in the case of Topman Exports vs. ITO(supra) has been upheld by the Hon ble Supreme Court. Therefore, the issue remains to be examined whether the AO has computed the deduction as per the decision of the Special Bench rendered in the case of Topman Exports(supra). The contention of the ld.counsel for the assessee is that the computation of profit of the business as per Explanation(baa) of Section 80HHC, whether made on the basis of the judgment of Topman Exports or on the basis of Kalpataru Colours and Chemicals, will not make any difference becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions and since 80HHC benefit is not available after 1.4.05, the cases of exporters having a turnover below and those above 10 crores should be treated similarly. 4.2. In view of the above judgement of Hon ble Supreme Court, we are of the considered view that the ld.CIT(A) was not justified in confirming the action of the AO. Therefore, respectfully following the judgement of Hon ble Supreme Court rendered in the case of CIT vs. Avani Exports, we hereby direct the AO to allow the deduction u/s.80HHC of the Act. Thus, ground Nos.1 to 5 of assessee s appeal are allowed. 5. Ground No.6 is general in nature which requires no independent adjudication. 6. Ground No.7 is against levy of interest u/s.234A, 234B, 234C and 234D of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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