9911796707
TMI Blog2012 (9) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... The CIT(A) ought to have noted that the assessee has failed to prove that the assessee had only one option i.e. DEPB for the relevant period before the Assessing Officer as stated by the CIT(A). 2. Despite issue of notice, none appeared on behalf of the assessee on the date of hearing of these appeals. Therefore, we proceed to decide these appeals after hearing Departmental Representative. 3. At the time of hearing, the ld. Departmental Representative fairly conceded that the issue is decided against the Revenue by the decision of Hon'ble Gujarat High Court and submitted that validity of insertion of 3rd and 4th proviso to sec.80HHC were challenged before various High Courts and the Hon'ble Gujarat High Court in the case of Avani Exports v. CIT in Special Civil Application No.7926 of 2006 dated 2.7.2012 held that the amendment inserting 3rd and 4th proviso to sec.80HHC by the Taxation Laws (Second Amendment) Act, 2005 with retrospective effect from 01.4.1998 is violative of Article 14 of the Constitution of India. We have gone through the Order of Hon'ble Gujarat High Court in the case of Avani Exports v. CIT (supra). The Hon'ble High Court held that retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted would get the benefit; (iv) Although in taxing statute laxity is permissible and a benefit given to the assessee can be curtailed, the same must be effective from a future date and not from an earlier point of time. If after inducing a citizen to arrange his businesses in a manner with a clear stipulation that if the existing statutory conditions are satisfied, in that event, he would get the benefit of taxation and thereafter, the Revenue withdraws such benefit and imposes a new condition which the citizen at that stage is incapable of complying whereas if such promise was not there, the citizen could arrange his affairs in a different way to get similar or at least some benefit, such amendment must be held to be arbitrary and if not, an ingenious artifice opposed to law. Consequently, the amendment is quashed to the extent it is retrospective." Following this decision of the Hon'ble Gujarat High Court, Hon'ble Bombay High Court recently, in the case of Vijaya Silk House (Bangalore) Ltd. v. Union of India and Another in WP Nos.2446 to 2010 dated 16.8.2012, while disposing off batch of appeals, took similar view. The Hon'ble Bombay High Court in its judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, in any event, stand disposed of by the order and judgment of the Gujarat High Court. No order as to costs." Respectfully following the decisions of Hon'ble Gujarat High Court and Hon'ble Bombay High Court (supra), we dismiss the grounds of appeal taken by the Revenue on the applicability of 3rd proviso to sub sec.(3) of sec.80HHC of the Act. 4. The other common issue in the appeals filed by the Revenue for the Asst. Years 2002-03 to 2004-05 is as under :- 1. The CIT(A) erred in holding that the deduction u/s.80HHC is to be computed separately for Unit-A and Unit-B and while doing so, the profit/loss and the turnover relating to ginning and pressing factories shall not take into account since the assessee has maintained separate books of account for all the five units. 2. The CIT(A) ought to have followed the decision of the Hon'ble Apex Court in the case of IPCA Laboratory Ltd. v. DCIT (2004)(266 ITR 521) & A.M.Moosa v. CIT (2007) (294 ITR 1), wherein it held that "sub section (3)(c) of section 80HHC deals with cases where the export is of both selfmanufactured goods as well as trading goods. The opening part of sub section (3)(c) states "profits derived fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ITA No.654(Mds)/2003:-The solitary issue raised in this appeal by the assessee relates to the computation of deduction under section 80HHC of the Act. We have heard the rival submissions. The main plank of the submissions of the learned counsel for the assessee is that the deduction under section 80HHC should be worked out by taking each unit separately and treating such businesses carried on by each unit as separate businesses We find absolutely no such prescription in law. The precedent relied upon by the learned counsel for the assessee in CIT vs. Rathore Brothers, 254 ITR 656(Mad) refers to a different set of circumstances. The Hon'ble jurisdictional High Court ill that case was concerned with the question whether section 80HHC(3)(b) can be invoked to compute the relief in respect of the entire export net profit In this case the assessee maintained separate accounts. Its trading receipts and profit and loss accounts were also maintained separately for export sales and domestic sales. On this factual background it was held that there was no warrant for disallowing any portion of the export earnings pro rata by invoking clause(b) of sub-section(3) of section 80HHC of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, find no infirmity in the order of the Commissioner (Appeals) on this count. Accordingly we uphold the same. 13. In the result the appeal of the assessee in ITA No.654(Mds)/2003 stands dismissed." Similarly the Hon'ble Calcutta High Court in the case of Duncans Industries Ltd. v. CIT (245 CTR 77), (202 Taxman 677), held that though the assessee was maintaining separate books of accounts for different businesses, different businesses of the assessee cannot be considered separately for the purpose of calculating deduction under sec.80HHC. The High Court held that the Tribunal was justified in holding that the deduction under sec.80HHC was required to be computed by aggregating the profits, export turnover and total turnover of all the businesses and not separately with reference to the profits, export turnover and total turnover for each businesses. In coming to this conclusion, the High Court relied on the decision of Hon'ble Supreme Court in the case of IPCA Laboratory Ltd. v. DCIT (supra). Respectfully following the above order of this Tribunal, we allow the grounds of the Revenue on this issue and reverse the order of the Commissioner of Income Tax(Appeals). ITA N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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