Olam Exports (India) Limited vs The Commissioner Of Income Tax on 29 May, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

ITA.No. 169 of 2008()


1. OLAM EXPORTS (INDIA) LIMITED,
                      ...  Petitioner

                        Vs



1. THE COMMISSIONER OF INCOME TAX,
                       ...       Respondent

                For Petitioner  :SRI.JOSEPH MARKOSE (SR.)

                For Respondent  :SRI.JOSE JOSEPH, SC, FOR INCOME TAX

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :29/05/2009

 O R D E R
                 C .N. RAMACHANDRAN NAIR &
                       C. K. ABDUL REHIM, JJ.
                 --------------------------------------------
                    I. T. Appeal No. 169 OF 2008
                 --------------------------------------------
                 Dated this the 29th day of May, 2009

                              JUDGMENT

Ramachandran Nair,J.

In the appeal filed by the assessee, the questions raised pertain to

computation of deduction for export profit under Section 80HHC of the

I.T. Act. The assessee having it’s industry in a backward area was

entitled to deduction under Section 80IB of the I.T. Act. However, by

virtue of Section 80 IB (13) read with Section 80IA (9) of the Act the

assessee will not be entitled to claim deductions both under Section

80IB and under Section 80HHC of the Act. Tribunal following their

full bench decision upheld the disallowance under Section 80IB(13) of

the Act, but granted deduction under Section 80HHC of the Act. Even

though senior counsel appearing for the assessee contended that

deduction under Section 80HHC is a full code by itself and no

exclusion would be made while computing eligible deduction, we

notice that Section 80IB and under Section 80HHC come under

Chapter VIA and by virtue of specific exclusion under Section 80IB

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(13) of the Act the assessee is not entitled to simultaneous deduction of

both. In other words, while computing deduction under Section

80HHC deduction granted under Section 80IB cannot be reckoned or

has to be excluded. We find the order of the Tribunal is consistent with

the statutory provisions and therefore appeal on this issue is rejected.

2. So far as computation of relief under Section 80HHC is

concerned, we find that assessment requires reconsideration because by

virtue of the decision of the Supreme Court in JANATHA CASHEW

EXPORTING CO. V. CIT, 309 I.T.R.440 the assessee is entitled to

deduction of export profit arising from export of goods made through

export Houses the assessee acting as supporting manufacturer.

However, it is on condition of availability of disclaimer certificate

issued by the Export Houses. It is for the assessee to produce

disclaimer certificate in revised assessment proceedings before the

officer. So far as assessee’s claim for determination of deduction

before excluding carry forward or set-off loss is concerned, the

decision of the Supreme Court in CIT V. SHIRKE CONSTRUCTION

EQUIPMENT LTD., 291 I.T.R. 380 is against the proposition

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canvassed by the assessee. Therefore assessment on this does not

warrant any modification. Appeal is consequently disposed of partly

allowing the claim and directing the assessing officer to re work relief

under Section 80HHC in terms of the decision above referred after

giving an opportunity of hearing to the assessee,

(C.N.RAMACHANDRAN NAIR)
Judge.

(C. K. ABDUL REHIM)
Judge.

kk

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