IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1407 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= COMMISSIONER OF INCOME TAX-I - Appellant(s) Versus ARVIND MILLS LTD - Opponent(s) ========================================================= Appearance :
MRS MAUNA M BHATT for Appellant(s) : 1, None for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 05/07/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) In this Tax Appeal by the Revenue, which is directed against order dated 30.06.2011 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench `D' in Income Tax Appeal No.472 of 2011, following question is raised by the appellant proposing it to be a substantial question of law:-
“Whether the Appellate Tribunal is right in law and on facts in directing the Assessing Officer to recomputed the book profit u/s.115JB by reducing eligible profit u/s. 80HHC instead of deductible profit?”
2. We have heard learned advocate Mrs. Mauna Bhatt for the Revenue.
3. The issue is in a narrow compass and relates to the deduction claimed by the assessee under Section 80HHC(1B) of the Income Tax Act, 1961. The benefit was claimed by the respondent by addressing a letter dated 23.05.2005 after the Assessing Officer had already passed the assessment order. It was submitted by the assessee in the letter that in the assessment order entire export profit was required to be reduced from the book profit and the deduction could not have been restricted to the extent of 30% as provided in sub-section (1B) of section 80HHC of the Act. The Assessing Officer was of the opinion that the claim of the assessee could not be considered as there was no provision under the Income Tax Act to make any amendment in the return of income, unless a revised return was filed by the assessee even as he held that the claim of the assessee was genuine. In not entertaining the claim of the assessee the Assessing Officer relied on the decision of the Apex Court in Goetze (India) Ltd. v. CIT (284 ITR 323).
3.1. The aggrieved assessee carried the matter in appeal before the CIT(A), who allowed the appeal directing the Assessing Officer to recompute the book profit in light of the Apex Court judgement rendered in Ajanta Pharma Ltd. [327 ITR 305 (SC)].
3.2. The Department filed appeal before the Income Tax Appellate Tribunal, which came to be dismissed as per the impugned order. While dismissing the appeal of the Revenue, the Tribunal inter alia observed as under:
“A.O. Himself has stated in the assessment order that although the claim of the assessee is genuine but the same is not entertained because of the judgment of Hon'ble Apex Court rendered in the case of Goetze (supra). Hence there is no dispute that the claim of the assessee is genuine and is in accordance with the judgment of Hon'ble Apex Court rendered n the case of Ajanta Pharma Ltd.”
4. As the facts on record show that the Assessing Officer himself had found the claim of the assessee to be genuine. He did not grant relief on the basis that the claim could have been considered only on filing of a revised return. The Appellate Commissioner on the basis of the Supreme Court decision in Ajanta (supra) allowed the claim which was admittedly a genuine one and the Tribunal ultimately upheld the same.
5. As such in Goetze (supra) the Supreme Court while dismissing the appeal clarified that its decision was restricted to the power of Assessing Officer to entertain a claim for deduction otherwise than by a revised return, and did not impinge on the powers of the assessing authority under section 254 of the Act.
6. When the claim of the assessee was genuine and acceptable on merits, the Appellate Commissioner acted within its powers and rightly allowed the same. That was confirmed by the Tribunal. In that view, the impugned order of the Tribunal warrant no interference. No substantial question of law arises for consideration.
7. Accordingly, the appeal is dismissed.
(V.M. SAHAI, J.) (N.V. ANJARIA, J.)
(SN DEVU PPS)