2017 (5) TMI 1552

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..... l") in ITA No.100/CHANDI/2017 and ITA No.142/CHANDI/2007, for the assessment year 2003-04, claiming following substantial questions of law:- "I. Whether excise duty rebate/refund, which is given under the Central Excise Act is not an export incentive as it is not given under any Export Promotion Scheme of the Government? II. Whether on the true and correct interpretation of the provision of Section 80HHC the claim be declined in pursuance to retrospective amendment in the Act relatable to option to be made amongst duty draw back and DEPB after the conclusion of an event? III. Whether on the true and correct interpretation of the provision of Section 80IB, the claim of excise Duty rebate/refund, which is given under the Central Excise Act .....

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..... present case relating to deduction under Section 80IB of the Act is to be sent back for fresh decision in accordance with law. Ordered accordingly. 5. Adverting to deduction under Section 80HHC of the Act, it may be noticed that the Assessing Officer while relying upon amendment by Taxation Laws (Second Amendment) Act, 2006 with retrospective effect had held that the assessee was not entitled for deduction under Section 80HHC of the Act as claimed. In view of amended provisions of Section 80HHC and insertion of clause (iiid) and (iiie) to Section 28 of the Act as amended by the Taxation Laws (Amendment) Act, 2005, the assessee had to justify its claim in view of provisions of Section 28(iiid) and to prove that it had necessary and sufficie .....

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..... Paras 3.6 to 3.6.3. The Assessing Officer has referred to the amended provisions of Section 80HHC and insertion of clause (iiid) and (iiie) to Section 28 of the Income Tax Act 1961 as amended by the Taxation Laws (Amendment) Act, 2005. In para 3.6.3, the Assessing Officer has recorded a finding of fact that the assessee has failed to bring the necessary evidence on record for justification of its claim into account the increase of 90% of export incentive on account of Excise Duty Rebate/Refund for the purpose of calculation of deduction under Section 80HHC. The Commissioner of Income Tax(A) has also confirmed the view of the Assessing Officer vide para 5.4 of his order." 6. In view of the above, it is considered appropriate that the matter .....

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