Calcutta High Court
Commissioner Of Income-Tax vs M/S. J.J. Exporters Ltd on 21 July, 2010
Author: Sengupta
Bench: Sengupta
IN THE HIGH COURT AT CALCUTTA Special Jurisdiction Original Side Present :
The Hon'ble Justice Sengupta And The Hon'ble Justice Kanchan Chakraborty 21.07.2010 ITAT 144 of 2010 GA 1979 of 2010 Commissioner of Income-tax, Kolkata-IV, Kolkata Vs. M/s. J.J. Exporters Ltd.
The Court :- This appeal is sought to be admitted on the following grounds :-
"a) Whether the Learned Income Tax Appellate Tribunal, 'C' Bench, Kolkata has erred in law and in the facts and circumstances of the case in holding that though as per the provisions of the Act there is no such requirement to the effect that the reason for issuing notice under section 263 has to be given according to Learned CIT, the assessee did not file Form No.10CCAB in respect of sales to Expert Oriental unit while claiming deduction u/s.80HHC ?
b) Whether on the facts and in the circumstances of the case the Learned Tribunal was wrong in not holding that the claim under section 80HHC was not in conformity with section 1A and 4A of section 80HHC Act the deduction in respect of sale made to Expert Oriental Unit was allowable only subject to production of certificate ?
c) Whether the Learned Income Tax Appellate Tribunal, 'C' Bench, Kolkata has erred in law and in the facts and circumstances of the case in holding that law is 2 well settled that the Learned CIT cannot travel beyond the notice issued by him while initiating proceeding under section 263 inasmuch as the learned Tribunal ought to have appreciated that there is no such provision in section 263 and all that the Section mandates is that an opportunity should be given to the assessee of being heard ?
d) Whether the Learned Income Tax Appellate Tribunal, 'C' Bench, Kolkata has erred in law and in the facts and circumstances of the case in holding that the AO initiated rectification proceeding u/s 154 in respect of the same issue i.e. deduction u/s 80HHC on the basis of audit report and after getting the reply from the assessee, has dropped those rectification proceeding, and since the AO has taken a possible view in the matter, the Ld. CIT was not justified in invoking provisions of section 263 simply because he had a different opinion on the same facts inasmuch as the learned Tribunal ought to have appreciated that profit from sales to 100% Export Orieinted units are not covered under section 80 HHC 9IA) and the assessee did not produce the required certificate in Form NO>10CCAB along with the return ?
e) Whether the Learned Income Tax Appellate Tribunal, 'C' Bench, Kolkata has erred in law and in the facts and circumstances of the case in holding that the Hon'ble Gauhati High Court in the case of B & A Plantation & Industries Ltd. Vs. CIT 290 ITR 395 has held that audit objection cannot be the basis of invoking the provisions of section 263 inasmuch as the learned Tribunal ought to have appreciated that the judgment is distinguishable from the present case ? 3
f) Whether the Learned Income Tax Appellate Tribunal, 'C' Bench, Kolkata has erred in law and in the facts and circumstances of the case in holding that it is not a fit case in which proceeding u/s 263 should have been initiated by the Learned CIT ?"
We have heard Mr. Bhowmick and we have read carefully the judgment and order of the learned Tribunal. In this matter the CIT wanted to initiate rectification proceedings under Section 263 of the Income-tax Act by issuing notice dated 30th August, 2007. The learned Tribunal found that the Assessing Officer while taking his own view decided the matter in one way or the other i.e. however the views taken by the Assessing Officer did not find favour of the views of the CIT.
It is settled position of law that when the Assessing Officer has taken a possible view in the matter and then dropped the rectification proceedings based on audit report, it was not open for the CIT to invoke provisions of Section 263 of the Act simply he had a different opinion on the same fact. This well settled principles of law has been followed by the learned Tribunal. The learned Tribunal has also followed the decision of the Gauhati High Court in the case of B & A Plantation & Industries Ltd. vs. CIT reported in 290 ITR 395 wherein it has been held that audit objection cannot be the basis of invoking the provisions of Section 263. In this case factually the Assessing Officer wanted to start rectification proceeding basing on the audit report. However, the same was ultimately dropped. Therefore, the decision rendered by the Gauhati High Court has been correctly applied in this case.
We do not find any point of law for decision in the matter not to speak of substantial question of law.
The appeal is thus dismissed without any order as to costs. 4 Let xerox certified copy of this order be given to the parties, if applied for, upon compliance of all formalities.
(Sengupta, J.) (Kanchan Chakraborty, J.) ANC.