ACIT 20(2), MUMBAI V. MUDRA EXPORTS (INDIA), MUMBAI

ITA 158/MUM/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3973 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-10-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 07-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.V.EASWAR, PRESIDENT AND SHRI R.S.SYAL , AM ITA NO.158/MUM/2010 : ASST. YEAR 2002-2003 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 20(2) MUMBAI. VS. M/S.MUDRA EXPORTS (INDIA) B-5129, OBERAI GARDEN ESTATE CHANDIVALI FARMS ROAD, CHANDIVALI ANDHERI (EAST) MUMBAI 400 072. PA NO.AACFM1065B. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MAHAPATRA RESPONDENT BY : --- NONE --- (WRITTEN SUBMISSION) O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 15.10.2009, IN RELATION TO THE ASSESSMENT YEAR 2002-2003. 2. THE ONLY GRIEVANCE IN THIS APPEAL IS AGAINST TH E DIRECTION OF THE LEARNED CIT(A) TO CONSIDER THE FACE VALUE OF DEPB LICENSE O F RS.1,03,59,894 U/S 28(IIIB) WHILE CALCULATING DEDUCTION U/S.80HHC OF THE ACT. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND GONE THROUGH THE ASSESSEES LETTER DATED 25.10.2010 ADMITTING TH AT THE ISSUE IN THIS APPEAL IS COVERED AGAINST THE ASSESSEE BY THE JUDGEMENT OF TH E HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS. HOWEVER A PRAYER HAS BEEN MADE FOR KEEPING THE ISSUE ALIVE AND AWAITING THE DECISION OF THE HONBLE SUPREME COURT ON THIS ISSUE. 4. THE HONOURABLE JURISDICTIONAL HIGH COU RT IN CIT VS. KALPATARU COLOURS & CHEMICALS (2010) 192 TAXMAN 435 (BOM) HAS HELD TH AT THE ENTIRE AMOUNT OF SALE ITA NO.158/MUM/2010 M/S.MUDRA EXPORTS (INDIA). 2 PROCEEDS OF DEPB IS INCOME U/S 28(IIID), THEREBY R EVERSING THE VIEW OF THE SPECIAL BENCH IN TOPMAN EXPORTS VS. ITO (2009) 318 ITR (AT) 87 (MUM)(SB) TO THE EFFECT THAT THE F ACE VALUE ACCRUES AS INCOME ON MAKING EXPORTS, WHIC H FALLS U/S 28(IIIB) AND PROFIT ON SALE OF DEPB/DFRC/DUTY DRA WBACK U/S 28(IIID) IS ONLY THE AMOUNT WHICH IS IN EXCESS OF SALES PRICE OVER FACE VALUE. 5. CHAPTER XIV-A OF THE INCOME-TAX ACT DEALS WITH THE PROVISION FOR AVOIDING REPETITIVE APPEALS. IT HAS ONLY ONE SECTIO N 158A WHICH CONTAINS A PROCEDURE WHEN ASSESSEE CLAIMS THAT IDENTICAL QUEST ION OF LAW IS PENDING BEFORE HIGH COURT OF SUPREME COURT. IN THE INSTANT CASE THE ASSESSEE WANTS TO KEEP THE MATTER ALIVE TILL THE DECISION OF THE HON BLE SUPREME COURT ON THE SAID ISSUE. WE, THEREFORE, ADMIT, IN TERMS OF SEC. 158A(3), THAT THE QUESTION OF LAW ARISING IN THE INSTANT APPEAL, IS IDENTICAL WI TH THE QUESTION OF LAW STATED TO BE PENDING BEFORE THE HONBLE SUPREME COURT. RESULTAN TLY THE APPEAL OF THE REVENUE IS ALLOWED IN ACCORDANCE WITH THE JUDGMENT IN KALPA TARU COLOURS & CHEMICALS (SUPRA) AS PER SEC. 158A(4). IT IS, HOWEVER, MAD E CLEAR THAT WHEN THIS ISSUE IS DECIDED BY THE HONBLE SUPREME COURT, AMENDMENT, IF NECESSARY, SHALL BE MADE AS PER THE MANDATE OF SEC. 158A(5). 6. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 4 TH DAY OF NOVEMBER, 2010. SD/- SD/- ( R.V.EASWAR ) ( R.S.SYAL ) PRESIDENT ACCO UNTANT MEMBER MUMBAI : 4 TH NOVEMBER, 2010. DEVDAS* ITA NO.158/MUM/2010 M/S.MUDRA EXPORTS (INDIA). 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.