D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur DATE :
24. 05/2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE MAHENDRA MAHESHWARI Mr. M.S. Singhvi, Senior Advocate assisted by Mr. Mr. Anjay Kothari, for appellant. Mr. K.K. Bissa, for respondent. Heard learned counsel for the parties.
2. This Court admitted this appeal on the following substantial question of law on 7th August, 2009:- Whether the learned Tribunal was in error in taking view as taken in the impugned order despite having taken contrary view in the case of this assessee itself during earlier year? 3. Learned counsel for appellant submitted that present case relates to Assessment Year 2004-05. In the case of present assessee/appellant for the Assessment Year 2003-04, the Income Tax Appellate Tribunal took a view that assessee is entitled for deduction under Section 80HHC of the Income Tax Act for export of marble blocks, which are cut and polished, whereas in the present case, the Tribunal D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 2 took a contrary view and declined deduction, therefore, this appeal was admitted on the above mentioned question of law. He further submitted that the Department preferred D.B. Income Tax Appeal No. 39/2008, Commissioner of Income Tax, Udaipur vs. M/s. Galaxy Exports, against order of Income Tax Appellate Tribunal, in respect of Assessment Year 2003-04, wherein same question of fact and law is involved. He submitted that this Court has dismissed the D.B. Income Tax Appeal No.39/2008 filed against assessee/appellant in respect of Assessment Year 2003-04 and affirmed the finding of the Income Tax Appellate Tribunal, meaning thereby, it has been held by this Court that assessee is entitled for deduction under Section 80HHC of the Act, for Export of Marble Blocks, which are cut and polished. He submitted that present matter relates to the Assessment Year 2004- 05, wherein Tribunal had taken a contrary view. He submitted that the question involved in the present case has already been considered and answered in favour of assessee and it has been that in the facts and circumstances of the present case, the assessee is entitled for deduction under Section 80HHC of the Act.
4. Learned counsel for respondent/Revenue submitted that although this Court has considered the point involved in the present appeal in D.B. Income D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 3 Tax Appeal No.39/2008, but the Income Tax Appellate Tribunal only already remanded the matter to Assessing Officer, therefore, instead of deciding the case on merits by this Court, it will be appropriate that assessing officer may be directed to decide the matter in the light of decision rendered by this Court in D.B. Income Tax Appeal NO.39/2008.
5. We have considered the submissions of learned counsel for the parties. The dispute in the present case is in respect of deduction under Section 80HHC of the Act for Export of Marble Blocks, which are cut and polished. So far as facts of the case are concerned, there is no dispute between parties that there was export of Marble Blocks, which are cut and polished in the Assessment Years 2003-04 and 2004-05. The Income Tax Appellate Tribunal in the case of assessee itself relating to the Assessment Year 2003- 04 took a view that assessee is entitled for deduction under Section 80HHC of the Act, whereas in the Assessment Year 2004-05 took a contrary view and held that assessee is not entitled for deduction under Section 80HHC. The decision of Tribunal rendered in the Assessment Year 2003-04 was challenged before this Court by Revenue and Income Tax Appeal No.39/2008 filed by Revenue has been dismissed by this Court along with D.B. Income Tax Appeal No.29/2008, Commissioner of Income Tax, D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 4 Udaipur vs. M/s.Arihant Tiles & Marbles Pvt. Ltd. and other connected 10 matters vide order dated 20 th February, 2013, reported in (2013) 257 CTR (Raj) 169. Since question involved in both the orders is one and same, therefore, we are of the view that no useful purpose will be served in remitting the matter to the Assessing Officer for re-examination as per direction of the Income Tax Appellate Tribunal.
6. It is relevant to mention that this Court had already stayed the further proceedings of the Assessing Officer vide order dated 7th February, 2011 in pursuance of direction passed by Income Tax Appellate Tribunal vide impugned order dated 6th March, 2009.
7. Since facts and question of law, both are one and same in earlier appeal of assessee, which has been decided and in the present appeal, therefore, we are of the view that present appeal is fully covered by decision of the Division Bench of this Court in D.B. Income Tax Appeal No.29/2008, Commissioner of Income Tax, Udaipur vs. M/s.Arihant Tiles & Marbles Pvt. Ltd. and other connected 10 matters vide order dated 20th February, 2013, reported in (2013) 257 CTR (Raj) 169, wherein D.B. Income Tax Appeal NO.39/2008 relating to present assessee/appellant was also included. This Court has already taken a view that assessee is entitled to deduction under Section 80HHC D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 5 of the Act. Para 22 to 2 of the above referred judgment dated 20th February, 2013 are reproduced, as under :- 22. In the present case, finding of the learned Tribunal is in favour of assessee-respondents and it has been categorically held that the assessee- respondents are eligible for deduction under s.80HHC of the Act for export of marble blocks, which were cut and polished. These findings are, indisputably, binding on this Court in view of law laid down by Hon'ble Supreme Court in the case of Sudarshan Silks & Sarees (supra). The appellant-Revenue has also not controverted that the findings arrived at by the learned Tribunal on facts are not correct or are perverse. Therefore, the findings of facts arrived at by the learned Tribunal need not be gone into by us.
23. Therefore, we are of considered opinion that the learned Tribunal was justified in allowing the deduction under s.80HHC of the Act regarding export of cut and polished marble blocks during relevant years by the assessee- respondents. The appeals of the Revenue, therefore, are liable to be dismissed and the substantial question of law framed above is accordingly answered in favour of assessee-respondents and against the appellant-Revenue.
24. It is also pertinent to note that since the Circular No.693, dt. 17th Nov.,1994 has already been referred to and discussed along with the substantial question of law framed in these appeals for the second substantial question of law framed in Appeal No.29 of 2008 regarding legal effect of Circular No. 693, it is also held that said circular does not adversely affect claims of the assessee-respondents and the assessees are entitled to benefit of deduction under s.80HHC of the Act. Thus, the second substantial question of law framed in Appeal No. 29 of 2008 is accordingly answered in favour of the assessee- D.B. Income Tax Appeal No.53/2009 M/s. Galaxy Exports vs. The Commissioner of Income Tax(Appeals), Udaipur 6 respondent and against the appellant- Revenue.
25. In view of the above, these appeals of the Revenue are hereby dismissed. No order as to costs.
8. In view of above discussion, the present appeal deserves to be allowed and the same is hereby allowed. Impugned order passed by Income Tax Appellate Tribunal is set aside and it is held that assessee/appellant is entitled for deduction under Section 80HHC of the Act. The question framed in the present case is answered in favour of assessee/appellant and against revenue/respondent.
9. Parties are directed to bear their own costs.
10. Stay application No.10162/2009 also stands disposed of. (MAHENDRA MAHESHWARI),J.
(NARENDRA KUMAR JAIN),J.
Sanjay , Jrpa All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Sanjay Solanki JUNIOR PERSONAL ASSISTANT.