Gujarat High Court
Commissioner Of Income Tax-Iv vs Vishal Export Overseas ... on 18 July, 2016
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.R.Udhwani
O/TAXAP/1375/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1375 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI SD/-
and
HONOURABLE MR.JUSTICE G.R.UDHWANI SD/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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COMMISSIONER OF INCOME TAX-IV....Appellant(s)
Versus
VISHAL EXPORT OVERSEAS LTD....Opponent(s)
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 18/07/2016
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O/TAXAP/1375/2011 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this appeal, the appellant - Department has challenged the order dated 13/05/2011 passed by the ITAT in ITA No.2177/Ahd/2005 for the assessment year 20022003, whereby the Tribunal has confirmed the order of the CIT (A) remanding the matter to AO.
2. This appeal is admitted on the following question of law:
"Whether the appellate tribunal is right in law and on facts in deleting the disclaimer amount of Rs.4,76,10,309/ worked out by the Assessing Officer for eligible deduction under Section 80HHC?
3. Though served, none appears for the respondents.
4. Learned Counsel for the appellant - department has invited the attention of this Court to paragraph No.13 of the order passed by the ITAT which reads as under:
"13. We have heard the parties. The ld. DR supported the order of AO whereas the ld. AR pointed out that there is apparent confusion in the mind of the AO. As per explanation (b) below section 80 HHC (4C) the expenses on goods or merchandise beyond the customs point are to be Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Jul 20 02:18:33 IST 2016 O/TAXAP/1375/2011 JUDGMENT excluded from the export turnover and not from the direct cost. The direct cost would include cost attributable to the trading of goods out of India, including the purchase price of such goods as per explanation below section 80HHC(3). Since characteristics of both the sums i.e. Rs.1.89 crores and Rs.32.87 lacs is the same they had to be given the same treatment for working out export turnover and not to be reduced from the the direct cost. The AO seems to be confused as to whether Rs.32.87 lacs is the cost upto customs clearance point or beyond it, which has been clarified by ld. CIT (A) who has given the correct decision by directing to work out necessary relief by holding that this sum is also incurred beyond customs clearance point. The ld. DR has not pointed out as to how the decision of ld CIT (A) is incorrect. We accordingly dismiss this ground of Revenue."
5. Having heard the learned Counsel for the appellant and having gone through the observations made by the Tribunal in its order in paragraph No.12, we are of the opinion that the Tribunal has rightly remanded the matter to AO and the AO will consider the matter in accordance with law. At this stage, we are not answering the question. Accordingly, the appeal stands disposed of.
(K.S.JHAVERI, J.)
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O/TAXAP/1375/2011 JUDGMENT
(G.R.UDHWANI, J.)
sompura
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