SUPREFINE LAB P.LTD ( NOW KNOWN AS MEGA FINE PHARMA P.LTD) AFTER AMALGAMATION, MUMBAI V. DCIT CIR 4(3), MUMBAI

ITA 109/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1660 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 05-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR SINHA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTAT MEMBER I.T.A. NO. 109/M/2012 ASSESSMENT YEAR: 2004-2005 M/S. MEGA FINE PHARMA PVT. LTD., SETHNA BLDG., 4 TH FLOOR, 55, M.K. ROAD, MARINE LINES, MUMBAI-400002. PAN: AAACM7472M VS. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-4(3), AAYAKAR BHAVAN, MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.V. JAIN, AR RESPONDENT BY : SHRI PRADEEP KUMAR SINHA, DR DATE OF HEARING: 31.12.12 DATE OF ORDER: 4.1.2013 O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 5.1.2012 IS AG AINST THE ORDER OF CIT (A)- 8, MUMBAI DATED 17.10.2011 FOR THE ASSESSMENT YEAR 2004-2005. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GRO UNDS WHICH READ AS UNDER: 1. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT (A) HAS ERRED IN UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S 254 WITHOUT CONSIDERING TH E FACT THAT THE AO HAD FAILED TO FOLLOW THE DIRECTIONS GIVEN BY HONBL E ITAT MUMBAI BENCH AND FURTHER FAILED TO GIVE EFFECT IN ACCORDANCE WIT H THE SPECIFIC FINDINGS AND DIRECTIONS OF HONBLE ITAT. 2. THE CIT (A) HAS ALSO ERRED IN NOT APPRECIATING T HE FACT THAT THE AO HAD GROSSLY DISREGARDED THE DIRECTIONS ISSUED BY THE HONBLE ITAT, MUMBAI BY ERRONEOUSLY FOLLOWING THE DECISION OF HON BLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE IT ACT AND AO DETERMINED THE TOTAL TAXABLE INCOME OF THE ASSESSEE AT RS. 59,78,570/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO DISALLOWED THE DEDUCTION U/S 80-HHC OF THE ACT ON THE RECEIPTS ON SALE OF THE DEPB LICENSE. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE CIT (A). DURING THE PROCEEDINGS, CIT (A) CONFIRMED THE ADDIT ION MADE BY THE AO. THE ASSESSEE, FURTHER WENT IN APPEAL BEFORE THE ITAT. V IDE ORDER DATED 20.10.2010, THE 2 ITAT HELD THAT THE ISSUE WAS COVERED BY THE DECISIO N OF THE SPECIAL BENCH IN THE CASE OF M/S. TOPMAN EXPORTS VS. ITO (OSD) 14 (32), MUMBAI IN ITA NO.5769, 2006 AND SET ASIDE THE ISSUE TO THE FILES OF AO WITH THE DIRECTION TO APPLY THE PRINCIPLE LAID DOWN IN THE SPECIAL BENCH DECISION AND ACCORDINGLY TO RE-COMPUTE THE DEDUCTION U/S 80-HHC. AS THE DECISION IN THE CASE OF TOPMAN EXPO RTS HAS BEEN OVERRULED BY THE JUDGMENT IN THE CASE OF KALPATARU COLOURS & CHEMICA LS VIDE ITA NO. 2887 OF 2009, DATED 2010, AO ASSESSED THE INCOME OF THE ASSESSEE AS RS. 59,78,570/-. ON APPEAL OF THE ASSESSEE AGAINST THE DECISION OF AO, CIT (A) CONFIRMED THE DECISION OF AO. AGGRIEVED WITH THE DECISION OF CIT (A), AGAIN ASSES SEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE SAME ISSUE. 4. BEFORE US, SHRI C.V. JAIN, LD COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA) WAS SET ASIDE BY THE HONBLE SUPR EME COURT IN THE CASE OF TOPMAN EXOPORTS VS. CIT [2012] 205 TAXMAN 119/18. T HEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION ON THE DEPB RECEIPTS. 5. ON THE OTHER HAND LD DR RELIED ON THE ORDER OF T HE REVENUE AUTHORITIES. 6. WE HAVE HEARD BOTH THE PARTIES, AND PERUSED THE MATERIAL PLACED BEFORE US AND ALSO THE JUDGMENT OF HONBLE SUPREME COURT IN T HE CASE OF TOPMAN EXPORTS VS. CIT (SURPA). IN VIEW OF THE BINDING JUDGMENT OF HO NBLE SUPREME COURT IN TOPMAN EXPORTS (SUPRA), WHEREBY THE JUDGMENT IN THE CASE O F KALPATARU COLOURS & CHEMICALS (SUPRA) IS NO LONGER A GOOD LAW, WE ARE OF THE CONS IDERED OPINION THAT THE ASSESSEE IS ENTITLED TO GET THE RELIEF AND THE ORDER OF THE CIT (A) ON THIS ISSUE REQUIRED TO BE REVERSED. ACCORDINGLY, THE GROUNDS RAISED BY THE A SSESSEE ARE ALLOWED . 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF JANUARY, 2013. SD/- SD/- (D.K. AGARWAL) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER 3 DATE : 4.1.2013 AT :MUMBAI OKK COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR E, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI