M/S. ELVE CORPORATION, MUMBAI V. THE DCIT 12(3),

ITA 1169/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1893 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 23-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L K AGRAWAL
• Assessee Lawyers: RAVINDRA G GUDEKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD( AM) I.T.A. NO.1169/MUM/08 ASSESSMENT YEAR: 2004-05 M/S. ELVE CORPORATION, ELVE CHAMBERS, GREEN STREET, FORT, MUMBAI 400 020. PAN: AAAFE 4847 R VS. DY. COMMISSIONER OF INCOME-TAX- 12(3), AAYAKAR BHAVAN, MUMBAI 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAVINDRA G. GUDEKAR RESPONDENT BY : SHRI L.K. AGRAWAL O R D E R PER T.R. SOOD, AM: IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW 1. THE LEANED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN HOLDING THAT THE APPELLANT IS NOT ENTITLED TO DEDUCTION U/S .80HHC OF THE INCOME-TAX ACT, 1961 ON THE GROUND THAT, IN THE ABS ENCE OF OPTION TO CHOOSE BETWEEN DUTY DRAWBACK AND DUTY ENTITLEMENT P ASS BOOK (DEPB) SCHEME, THE APPELLANT DOES NOT FULFILL THE C ONDITIONS PRESCRIBED UNDER THE 3 RD PROVISO TO SECTION 80HHC(3). 2. THE LEARNED CIT(A) ERRED IN REDUCING THE ENTIRE AMO UNT OF DEPB AND NOT RESTRICTING IT TO REDUCING THE PROFIT ON TRANSF ER OF DEPB AS CONTEMPLATED IN SECTION 28(IIID) WHILE COMPUTING TH E PROFITS OF THE BUSINESS. 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT THE ISSUE RAISED BEFORE US IS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TOPMAN EXPORTS V. ITO (2009) 318 ITR (AT) 87 (MUMBA I)(SB). THE SPECIAL BENCH VIDE ITS ORDER DATED 11.08.2009 HAS RESTORED THE MA TTER BACK TO THE FILE OF THE AO FOR CONSIDERING THE FACE VALUE OF DEPB AS COVERED UNDER SECTION 28(IIIB) AND THE PROFITS ON TRANSFER OF DEPB I.E. EXCESS OF SALE PRICE OVER THE FACE VALUE OF DEPB AS FALLING UNDER SECTION 28(IIID). IT HAS FURTHER BEEN HELD TH AT THERE IS NO SCOPE FOR ALLOWING SEPARATE DEDUCTION FOR INDIVIDUAL EXPENSES CONNECTE D WITH THE SALE OF DEPB DUE TO ITA NO.1169/M/08 M/S ELVE CORPORATION 2 THE SCHEME OF SECTION 80HHC. WE, THEREFORE, SET ASI DE THE IMPUGNED ORDER AND RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER WITH DIRECTION TO RECOMPUTED THE DEDUCTION U/S.80HHC IN ACCORDANCE WI TH THE VIEW TAKEN BY THE SPECIAL BENCH CITED SUPRA. NEEDLESS TO SAY THE ASS ESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO IN THE FRESH P ROCEEDINGS. 27. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF APRIL, 2010. SD. SD. (D.K. AGARWAL) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 30 TH APRIL, 2010. KN/ COPY TO: 1. THE ASSESSEE 2. THE DCIT-2(3), MUMBAI 3. THE CIT-XII, MUMBAI 4. THE CIT(A)-XII, MUMBAI 5. THE DR, J BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUM BAI ITA NO.1169/M/08 M/S ELVE CORPORATION 3