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Income Tax Appellate Tribunal, “ G” BENCH,
Before: HON’BLE S/SHRI SAKTIJIT DEY (JM), & ASHWANI
आदेश / O R D E R
Per ASHWANI TANEJA, AM:
This is an appeal filed by the assessee challenging the appeal order passed by the Commissioner of Income Tax- (Appeals) dated 10.1.2012 for the assessment year 2001-02.
The solitary issue raised by the assessee before us is that while computing the deduction u/s 80HHC, whether the amount of cash assistance received by way of excise refund shall be added back at the rate of 90% or not.
It has been argued by the Ld. Counsel that the assessee is 100% export oriented organization. As per the provisions of section 28(iiib), the cash assistance, by whatever name may be called, shall be assessed as profit and gains of business or profession of the assessee. Further, as per the provisions of section 80HHC(3), the first proviso of the section 28 (iiib) shall be taken into consideration for computation deduction u/s 80 HHC i.e.90% of this amount shall be deducted and added back for computing the amount of profit eligible for deduction u/s 80HHC. In support of his contention, he has placed reliance on the decision of the Delhi Bench of the Tribunal in the case of Hero Honda vs JCIT 103 ITD 0157. He also drew our attention to page four of the said judgment.
On the contrary, the Ld. DR submitted that the word used in section is cash assistance and therefore excise refund should not be included therein. It is also submitted that the excise refund received is not granted for the purpose of export promotion etc and the legislature has not envisaged to provide benefit u/s 80HHC on the amounts of this nature.
We have heard the rival contentions of the parties, gone through the record available before us, the orders of authorities below and case law relied upon by the parties. Section 28(iiib) reads as under : “28. Profits and gains of business or profession.- The following income shall be chargeable to income-tax under the head “Profits and gains of business or profession”,— .... (iiib) cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of the Government of India ;” The perusal of this section suggests that cash assistance by whatever name called has been envisaged to be included under this section. This section has been provided in the manner that it can include amount of any nature which has been received by way of cash assistance. Ld Counsel has placed reliance on the direct judgment of Delhi Bench of the Tribunal in the case of Hero Honda (supra) wherein it has been held that:
“As far as the customs duty benefit received by the assessee under the advance licensing scheme is concerned, as rightly held by the CIT(A), the same would not fall within the ambit of Section 28(iiic) of the Act, but would fall within the parameters of Section 28(iiib)of the Act. This would be a residuary clause as held by the Tribunal and, therefore, any other reliefs given in any form to an exporter will fall within the said clause. The excise duty benefit should form part of the income from business of the assessee while computing deduction under Section 80HHC of the Act. –Pratibha Syntex Ltd. (1999) 63 TTJ (Ahd) 409 relied on”: 5. Thus, this issue is squarely covered in favour of the assessee by the aforesaid decision. No contrary decision was brought to our notice by the other side. Thus respectfully following the same, we allow the ground of appeal taken by the assessee.
Sd/- Sd/- (SAKTIJIT DEY) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER मुंबई Mumbai: 4th Dec, 2015.
व.�न.स./ SRL , Sr. PS