ACIT, Circle-42, Kolkata, Kolkata V. Shri Ranjit Kr. Saha, Kolkata

ITA 1629/KOL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1510 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 08-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN CIT DR REVEN
• Section: 80HHC; 28; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE A CCOUNTANT M EMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER ] I.T . A. NO. 1 6 2 9 /KOL/201 4 ASSESSMENT YEAR: 20 01 - 02 A.C.I.T., CIRCLE - 42 , KOLKATA. .... .. ... APPELLANT 18, RABINDRA SARANI PODDER COURT 4 TH FLOOR KOLKATA 700 001 SHRI RANJIT KR. SAHA.. . ... RESPONDENT BD 53, RABINDRA POLLY KRISHNAPUR KOLKATA - 101 [ P AN : ALQPS 1759 K ] APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SALLONG YADEN , ADDL. CIT ,D/R , APPEARING ON BEHALF OF THE REVENUE. DATE OF HEARING : JANUARY 29 TH , 201 8 DATE OF PRONOUNCEMENT : FEBRUARY 14 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE REVENUE DIRECTED AGAINST ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXX , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 2 4 / 0 3 /201 4 . 2. THE ASSESSEE CARRIES ON THE BUSINESS OF EXPORT OF YARN TO BANGALORE. THE ISSUE IS WHETHER THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S 80HHC OF THE ACT ON PROFIT ON SALE OF DEPB. THE HONBLE SUPREME COURT IN THE CASE OF M/S. TOPMAN EXPORTS VS COMM ISSONE R OF INCOME TAX,MUMBAI IN CIVIL APPEAL NO.1699 OF 2012 , JUDGEMENT DT. 8 FEBRUARY, 2012 , HELD THAT THE FACE VALUE OF DEPB WOULD FALL UNDER CLAUSE (IIIB) OF SECTION 28 OF THE ACT AND THE DIFFERENCE BETWEEN THE SALE VALUE AND THE FACE VALUE WILL FALL UNDER CL AUSE (IIID) OF 2 I.T.A. NO. 1629/KOL/2014 ASSESSMENT YEAR: 2001 - 02 SHRI RANJIT KR. SAHA SECTION 28 OF THE ACT. HENCE RELIEF U/S 80HHC OF THE ACT, SHOULD HAVE BEEN GRANTED ACCORDINGLY. THE ASSESSEE MOVED AN APPLICATION FOR RECTIFICATION U/S 154 OF THE ACT, ON 15 TH MARCH, 2012. THE ASSESSING OFFICER REJECTED THE SAME VIDE LETTER DT. 20/03/2012. EARLIER THE ASSESSEE HAD FILED AN APPLICATION FOR RECTIFICATION U/S 154 OF THE ACT, ON THE ISSUE OF DEDUCTION U/S 80G. THIS WAS ACCEPTED VIDE ORDER DT. 28/04/2009. 3. THE ASSESSEE MOVED ONE MORE APPLICATION U/S 154 OF THE ACT ON 02/04/2012, WHEREIN IT WAS SUBMITTED THAT A MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ASSESSMENT ORDER AND IT HAS TO BE RECTIFIED BY BRINGING THE SAME IN LINE WITH THE PROPOSITIONS OF LAW LAID DOWN IN THE CASE OF M/S. TOPMAN EXPORTS VS COMMISSONER OF INCOME TAX,M UMBAI (SUPRA). THIS WAS REJECTED BY THE ASSESSING OFFICER VIDE ORDER DT. 17/05/2012. ON APPEAL, THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE. 3.1. AGGRIEVED THE REVENUE IS BEFORE US. 4. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF ACIT V . SAURASHTRA KUTCH STOCK EXCHANGE LTD., [2008] 305 ITR 227 (SC) , HELD AS FOLLOWS: - (I) A MISTAKE APPARENT FROM THE RECORD IS ONE THAT IS PATENT, MANIFEST AND SELF - EVIDENT AND WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT; (II) THE NON - CONSIDERATION OF A DECISION OF JURISDICTIONAL COURT OR OF THE SUPREME COURT OR OF THE SUPREME COURT IS A MISTAKE APPARENT FROM THE RECORD IRRESPECTIVE OF WHETHER SUCH DECISION WAS RENDERED PRIOR OR SUBSEQUENT TO THE RECTIFICATION; (III) A JUDICIAL DECISION ACTS RETROSPECTIVELY BECAUSE IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A NEW RULE BUT TO MAINTAIN AND EXPOUND THE OLD ONE. JUDGES DO NOT MAKE LAW; THEY ONLY DISCOVER OR FIND THE CORRECT LAW. A SUBSEQUENT DECISION WHICH ALTERS THE EARLIER ONE HAS TO BE APPLIED RETROSPECTIVELY; 3 I.T.A. NO. 1629/KOL/2014 ASSESSMENT YEAR: 2001 - 02 SHRI RANJIT KR. SAHA (IV) RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. 5. THUS, THE LAW MANDATES RECTIFICATION BY THE ASSESSING OFFICER, IN CASE THE ORDER OF ASSESSMENT IS AGAINST THE PROPOSITION OF LAW LAID DOWN BY THE HONBLE SUPREME COURT. THERE IS NO BAR ON THE NUMBER OF RECTIFICATION PETITIONS THAT CAN BE FILED BY THE ASSES SEE ON AN ASSESSMENT ORDER WITHIN THE TIME LIMITS PRESCRIBED BY LAW. THUS, WE UPHOLD THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND DISMISS THIS APPEAL OF THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 14TH DAY OF FEBRU ARY , 201 8 . SD/ - SD/ - [ S.S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 14 . 0 2 .201 8 {SC SPS} 4 I.T.A. NO. 1629/KOL/2014 ASSESSMENT YEAR: 2001 - 02 SHRI RANJIT KR. SAHA COPY OF THE ORDER FORWARDED TO: 1. A.C.I.T., CIRCLE - 42, KOLKATA 18, RABINDRA SARANI PODDER COURT 4 TH FLOOR KOLKATA 700 001 2. SHRI RANJIT KR. SAHA BD 53, RABINDRA POLLY KRISHNAPUR KOLKATA - 101 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES