NULUX ENGINEERS, MUMBAI V. DCIT CIR 20(2), MUMBAI

ITA 2073/MUM/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0915 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2001-2002
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Rectification of order; Principle of natural justice
• Section: 143(3); 80HHC; 148; 54; 6; 263; 63; 28; 154

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.2073/ MUM/2017 ( / ASSESSMENT YEAR : 2001 - 02) NULUX ENGINEERS 5 - BEACH QUEEN, 33 - J.P ROAD, VERSOVA, MUMBAI - 400061 / V. DCIT CIR 20(2) MUMBAI ./ PAN : AAA FN1423C ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI. MANISH SHAH REVENUE BY : SHRI. D.G PANSARI , DR / DATE OF HEARING : 28.08.2018 / DATE OF PRONOUNCEMENT : 05 .10 .2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS APPEAL, FILED BY ASSESSEE, BEING ITA NO. 2073/MUM/2017, IS DIRECTED AGAINST APPELLATE ORDER DATE D 02.12.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 39, MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR ASSESSMENT YEAR 2001 - 02 , THE APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM ORDER DATED 30.08.2013 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 154 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) FOR AY 2001 - 02 . 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER: - I.T.A. NO.2073/MUM/2017 2 I. REJECTION OF RECTIFICATION APPLICATION U/S 154 OF THE INCOME TAX ACT ('THE ACT' ) 1.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 39, MUMBAI (HEREINAFTER REFERRED TO AS 'CIT(A)') HAS ERRED IN HOLDING THAT THE DEPB BENEFIT IN THE CASE OF APPELLANT WAS 'FACE VALUE OF DE PB' OR 'PROFIT ON TRANSFER OF DEPB' WAS A DEBATABLE ISSUE. 1.2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A} HAS FAILED TO CONSIDER THE FACT THAT AO HAD NOT REJECTED THE RECTIFICATION PETITION ON THE ABOVE GROUND. THUS, THE ORDER PASSED BY CIT(A) IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND BAD IN LAW. 1.3 THE LEARNED CIT(A) HAS FURTHER ERRED IN STATING THAT THE LEARNED AO WOULD HAVE TO TRAVEL BEYOND THE RECORDS T O ASCERTAIN APPELLANT'S CLAIM. 1.4 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS FAILED TO APPLY THE DECISION OF THE SUPREME COURT IN THE CASE OF 'TOPMAN EXPORTS V. CIT' WHICH HELD THAT DEPB ENTITLEMENT IS 'CASH ASSISTANCE' COVERED BY SECTION 28(IIIB) AND ONLY THE PROFIT ON TRANSFER OF DEPB WOU LD GET COVERED UNDER SECTION 28(IIID). THE APPELLANT RESPECTFULLY CRAVES LEAVE TO ADD, ALTER, MODIFY OR AMPLIFY ANY OF THE ABOVE STATED GROUNDS OF APPEAL. 3. THE ASSESSE E HAD CLAIMED DEDUCTION U/S. 80 H H C OF RS. 1,68,58,026/ - IN THE RETURN OF INCOME ORIGINALLY FILED ON 25 - 10 - 2001 WITH REVENUE , WHICH CLAIM OF DEDUCTION U/S 80HHC OF THE 1961 ACT WAS ALLOWED BY R EVENUE IN AN ASSESSMENT FRAMED U/S 143(3) OF THE 1961 ACT VIDE ASSESSMENT ORDER DATED 29 - 05 - 2003. L ATER , THE LEARNED COMMISSIONER OF INCOME - TAX - 20, MUMBAI INITIATED REVISIONARY PROCEEDING S U/S 2 6 3 OF THE 1961 ACT AND VIDE ORDERS DATED 13 - 03 - 2006 , LEARNED CIT - 20 , MUMBAI SET ASIDE THE ASSESSMENT ORDER DATED 29 - 05 - 2003 FRAMED BY THE AO U/S 143(3) OF THE 1961 ACT . THE FRESH ASSESSMENT WAS FRAMED B Y THE AO U/S 143(3) R.W.S. 254 OF THE 1961 ACT VIDE ASSESSMENT ORDER DATED 27.12.2006 WHEREIN THE INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 61,72,060/ - AGAINST THE RETURN ED INCOME OF RS. 42,03,010/ - . S UBSEQUENTLY , THE ASSESSMENT WAS I.T.A. NO.2073/MUM/2017 3 REOPENED BY REVENUE U/S. 148 OF THE ACT ON 28.03.2008 AND RE - ASSESSMENT WAS COMPLETED ON 26.12.2008 WITHOUT ANY ADDITIONS AND THE TOTAL I NCOME RE - ASSESSED REMAINED UNCHANGED AT RS. 61,7 2 ,060/ - . THE ASSESSEE FILED RECTIFICATION APPLICATION U/S. 154 OF THE ACT ON 11.02 .2013 WITH REVENUE BY RELYING ON DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. CIT (2012) 342 ITR 49(SC) PRAYING FOR GRANT OF DEDUCTION U/S 80HHC WHEREIN THE ASSESSEE POINTED OUT THAT FACE VALUE OF DEPB IS IN THE NATURE OF CASH ASSISTANCE U/S 28(IIIB) OF THE 1961 ACT AND ACCORDINGLY 3 RD PROVISO TO SECTION 80HHC (3) DOES NOT APPLY TO THE CASE OF THE ASSESSEE. THE SAID RECTIFICATION APPLICATION WAS REJECTED BY LD. AO VIDE ORDERS DATED 30.08.2013 PASSED U/S 154 OF THE 1961 ACT CONSIDERING THIS AS A DEBATABLE ISSUE WHICH CANNOT BE RECTIFIED WITHIN LIMITED MANDATE OF SECTION 154 OF THE 1961 ACT AND AS PER AO THERE IS NO MISTAKE A P P ARENT FROM RECORD IN AN ASSESSMENT ORDER DATED 26 - 12 - 2008 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT WHICH CAN BE CORRECTED WITHIN TH E LIMITED MANDATE OF S ECTION 1 54 OF THE ACT. IT WAS ALSO OBSERVED BY THE AO THAT DECISION REFERRED BY THE ASSESSEE IN THE CASE OF TOPMAN EXPORTS(SUPRA) HAS NO APPLICABILITY TO FACTUAL MATRIX OF THE CASE BECAUSE IN AN ASSESSMENT FRAMED VIDE ASSESSMENT ORDER DATED 26 - 12 - 2008 BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT , THE INCOME HAS REMAINED THE SAME AS NO ADDITIONS WERE MADE BY THE AO ON ANY GROUND IN THE SAID ASSESSMENT PROCEEDINGS. THE ASSESSEE FILED FIRST APPEAL WITH LD. CIT(A) AGAINST THE ORDER DATED 30.08.2013 PASSED U/S 154 OF THE 1961 ACT WH ICH ALSO MET WITH THE SAME FATE AS THE CONTENTION S OF THE ASSESSEE STOOD DISMISSED BY LEARNED CIT(A) VIDE APPELLATE ORDER DATED 02 - 12 - 2016 BY HOLDING AS UNDER : - 5. I HAVE CAREFU LLY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS IS NOT A CASE WHERE THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. CIT (SUPRA) COULD BE SAID TO BE SQUARELY APPLICABLE SO AS TO CALL FOR RECTIFICATION OF THE ASSESSMEN T ORDER U/S 154 OF THE ACT. IN FACT AS PER AFORECITED DECISION OF THE HON'BLE SUPREME COURT ONLY FACE VALUE OF DEPB WILL BE CLASSIFIED AS CASH ASSISTANCE AND WILL FALL UNDER CLAUSE (IIIB) OF SECTION 28 OF THE ACT. WHEREAS IN THIS CASE, THE AO HAS CONSIDERE D DEPB BENEFIT AS PROFIT ON TRANSFER OF DEPB AND HENCE FALLING U/S 28 (IIIB) READ WITH I.T.A. NO.2073/MUM/2017 4 THIRD PROVISO TO SECTION 80HHC(3). THUS FINDING THAT WHETHER THE DEPB BENEFIT IN THE CASE OF ASSESSEE HAS TO BE TAKEN AS PROFIT ON TRANSFER OF DEPB OR FACE VALUE OF DEPB IS DEBATABLE ISSUE AND APPLICABILITY OF PROVISION OF HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. CIT (SUPRA) COMES IN PLAY ONLY AFTER THIS ISSUE IS DECIDED. AS POINTED OUT BY THE ID.AO IN THE IMPUGNED ORDER, THE HON'BLE SUPREME COURT IN THE CAS E OF SAURASHTRA KUTCH STOCK EXCHANGE LTD HELD THAT A PATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IF CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF RECORD AND CAN BE CORRECTED U/S 154. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. IN THIS CASE, ORDER IS PASSED U/S 143(3) R.W.S. 147 OF THE ACT. IT WAS ADJUDICATED THAT THE BENE FIT OF DEPB IN THE CASE OF THE ASSESSEE IS IN THE NATURE OF PROFIT ON THE TRANSFER OF DEPB AND HENCE THE CONTENTION OF THE ASSESSEE THAT THE ORDER PASSED U/S 143(3) R.W.S. 147 WAS REQUIRED TO BE RECTIFIED U/S 154 IN VIEW OF THE DECISION OF THE HON'BLE SUPR EME COURT IN T HE CASE OF TOPMAN EXPORTS V. CIT (SUPRA) IS NOT ACCEPTABLE AND, THEREFORE, I DID NOT FIND ANY INFIRMITY IN THE ORDER OF THE ID. AO. THE GROUND IS DISMISSED. 4. AGGRIEVED BY THE APPELLATE ORDER DATED 02 - 12 - 2016 PASSED BY LEARNED CIT(A), THE ASSESSEE FILED AN SECOND APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE SUBMITTED THAT DEDUCTION U/S. 80HH C AS ALLOWED BY HONBLE SUPREME C OURT IN THE CASE OF TOPMAN EXPORTS(SUPRA) TO THE EXTEN T OF FACE VALUE OF DEPB BE ALLOWED AS THE SAME WAS HELD TO BE IN THE NATURE OF CASH ASSISTANCE U/S 28(IIIB) OF THE 1961 ACT WHICH IS INCOME DERIVED FROM EXPORTS READ WITH FIRST PROVISO TO SECTION 80HHC(3) . THE LD COUNSEL SUBMITTED THAT PROFIT ON SALE OF DEPB IS COVERED U/S 28(IIID) AND DEDUCTION U/S 80HHC IN ACCORDANCE WIT H HONBLE SUPREME COURT DECISION IN THE CASE OF TOPMAN EXPORTS(SUPRA) CAN ONLY BE ALLOWED TO THE ASSESSEE PROVIDED CONDITIONS AS ARE STIPULATED IN THIRD PROVISO TO SECTION 80HHC (3) ARE MET AS TURNOVER OF THE ASSESSEE IS MORE THAN RS. TEN CRORES . IT WAS S UBMITTED THAT THE ASSESSEE BE ALLOWED DEDUCTION U/S 80HHC IN LINE WITH DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS(SUPRA) SO FAR AS FACE VALUE OF D EPB IS CONCERNED . 5. THE LD. DR ON THE OTHER HAND RESISTED THE SAID CL AIM AND SUBMITTED THAT DEDUCTION U/S 80HHC CANNOT BE ALLOWED TO THE ASSESSEE EVEN ON THE FACE VALUE OF DEPB AS IT IS A DEBATABLE ISSUE I.T.A. NO.2073/MUM/2017 5 WHICH CAN NOT BE BROUGHT WITHIN THE LIMITED MANDATE OF S ECTION 1 54 OF THE ACT. IT WAS SUBMITTED THAT THE JUDGMENT WAS PASSED BY HONBLE S UPREME COURT IN THE CASE OF TOPMAN EXPORTS(SUPRA) ON 08 - 02 - 2012 WHICH WAS NOT AVAILABLE WHEN THE RE - ASSESSMENT ORDER U/S 143(3) R.W.S. 147 WAS PASSED BY THE AO ON 26 - 12 - 2008 AND HENCE THE SAID RE - ASSESSMENT ORDER CANNOT BE RECTIFIED U/S. 1 54 OF THE ACT. 6. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND IN REJOINDER RELIED UPON CBDT CIRCULAR NO. 68 DATED 17.11 .1971 REPRODUCED HERE UNDER: - SECTION 154 - RECTIFICATION OF MISTAKES MISTAKES APPARENT FROM RECORDS - WHETHER CAN BE TREATED AS SUCH ON THE BASIS OF SUBSEQUENT DECISION OF SUPREME COURT 1. THE BOARD ARE ADVISED THAT A MISTAKE ARISING AS A RESULT OF A SUBSEQUENT INTERPRETATION OF LAW BY THE SUPREME COURT WOULD CONSTITUTE A MISTAKE APPARENT FROM THE RECORDS' AND RECTIFICATORY ACT ION UNDER SECTION 35/154 OF THE 1922 ACT/THE 1961 ACT WOULD BE IN ORDER. IT HAS. THEREFORE, BEEN DECIDED THAT WHERE AN ASSESSEE MOVES AN APPLICATION UNDER SECTION 154 POINTING OUT THAT IN THE LIGHT OF A LATER DECISION OF THE SUPREME COURT PRONOUNCING THE C ORRECT LEGAL POSITION, A MISTAKE HAS OCCURRED IN ANY OF THE COMPLETED ASSESSMENTS IN HIS CASE, THE APPLICATION SHALL BE ACTED UPON, PROVIDED THE SAME HAS BEEN FILED WITHIN TIME AND IS OTHERWISE IN ORDER. WHERE ANY SUCH APPLICATIONS HAVE ALREADY BEEN REJECT ED AND THE ASSESSEE FILES FRESH APPLICATIONS WITHIN THE STATUTORY TIME LIMIT, THE SAME MAY ALSO BE TREATED ON PAR WITH THE APPLICATIONS WHICH MAY EITHER BE PENDING OR RECEIVED AFTER THE ISSUE OF THIS CIRCULAR. 2. THE BOARD DESIRE THAT ANY APPEALS OR REFERE NCES PENDING ON THE POINT AT ISSUE MAY PLEASE BE WITHDRAWN. CIRCULAR : NO. 68 [F.NO. 245/17/7L - A&PAC], DATED 17 - 11 - 1971. JUDICIAL ANALYSIS EXPLAINED IN - IN ITO V. SMT. MANINI NIRANJANBHAI [1992] 41 ITD 324 (AHD - TRIB.) (SMC) IT WAS OBSERVED THAT AS PE R CIRCULAR NO. 68, DATED 17 - 11 - 1971, IT IS NOW A WELL ESTABLISHED POSITION THAT THE SUPREME COURT DOES NOT DECLARE THE LAW WITH EFFECT FROM THE DATE OF ITS ORDER AND THE LAW DECLARED BY THE SUPREME COURT HAS EFFECT NOT ONLY FROM THE DATE OF THE DECISION B UT FROM THE INCEPTION OF THE STATUTORY PROVISION. IT HAS BEEN MENTIONED THEREIN THAT THE BOARD HAVE BEEN ADVISED THAT THE MISTAKE ARISING AS A RESULT OF SUBSEQUENT INTERPRETATION OF LAW BY THE SUPREME COURT WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD A ND RECTIFICATORY ACTION UNDER SECTION 154 WOULD BE JUSTIFIED. I.T.A. NO.2073/MUM/2017 6 THE LEARNED COUNSEL FOR THE ASSESSEE ALSO DREW OUR ATTENTION TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT V. SAURASHTRA KUTCH STOCK EXCHANGE LIMITED REPORTED IN (2008) 173 TAXMA N 322(SC). OUR ATTENTION WAS ALSO DRAWN TO DECISION OF THE MUMBAI - TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2002 - 03 AND 2003 - 04 IN ITA NO. 7341/MUM/2014 AND 2309/MUM/2013 VIDE COMMON ORDER DATED 06 - 09 - 2017 7 . WE HAVE CAREFULLY CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING CITED CASE LAWS. WE HAVE OBSERVED THAT THE ASSESSE E HAD CLAIMED DEDUCTION U/S. 80 H H C OF RS. 1,68,58,026/ - IN THE RETURN OF INCOME ORIGINALLY FILED WITH REVENUE ON 25 - 10 - 2001, WHICH CLAIM OF DEDUCTION U/S 80HHC WAS ALLOWED BY R EVENUE IN AN ASSESSMENT FRAMED U/S 143(3) OF THE 1961 ACT VIDE ASSESSMENT ORDERS DATED 29 - 05 - 2003. L ATER , THE LEARNED COMMISSIONER OF INCOME - TAX - 20, MUMBAI INITIATED REVISIONARY PROCEEDING S U/S 2 6 3 OF THE 196 1 ACT AND VIDE ORDERS DATED 13 - 03 - 2006 THE LEARNED CIT - 20,MUMBAI SET ASIDE THE ASSESSMENT ORDER DATED 29 - 05 - 2003 FRAMED BY THE AO U/S 143(3) . THE FRESH ASSESSMENT WAS FRAMED BY THE AO U/S 143(3) R.W.S. 254 OF THE 1961 ACT VIDE ASSESSMENT ORDER DATED 27.1 2.2006 WHEREIN THE INCOME OF THE ASSESSEE WAS ASSESSEE AT RS. 61,72,060/ - AGAINST THE RETURN ED INCOME OF RS. 42,03,010/ - . S UBSEQUENTLY , THE ASSESSMENT WAS REOPENED U/S. 148 OF THE ACT ON 28.03.2008 AND RE - ASSESSMENT WAS COMPLETED ON 26.12.2008 WITHOUT AN Y ADDITIONS AND THE TOTAL I NCOME REMAINED UNCHANGED AT RS. 61,72 ,060/ - . THE ASSESSEE FILED RECTIFICATION APPLICATION U/S. 154 OF THE ACT ON 11.02 .2013 BY RELYING ON DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. CIT (2012) 342 ITR 49(S C) PRAYING FOR GRANT OF DEDUCTION U/S 80HHC WHEREIN THE ASSESSEE POINTED OUT THAT FACE VALUE OF DEPB IS IN THE NATURE OF CASH ASSISTANCE U/S 28(IIIB) AS HELD BY HONBLE SUPREME COURT AND ACCORDINGLY 3 RD PROVISO TO SECTION 80HHC (3) HAS NO APPLICATION . THE SAID RECTIFICATION APPLICATION WAS REJECTED BY LD. AO CONSIDERING THIS AS A DEBATABLE ISSUE WHICH AS PER AO CANNOT BE RECTIFIED WITHIN LIMITED MANDATE OF SECTION 154 OF THE I.T.A. NO.2073/MUM/2017 7 1961 ACT AND AS PER AO THERE IS NO MISTAKE A P P ARENT FROM RECORD IN AN ASSESSMEN T ORDER DATED 26 - 12 - 2008 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT WHICH CAN BE CORRECTED WITHIN TH E LIMITED MANDATE OF S ECTION 1 54 OF THE ACT. THE LD. CIT(A) ALSO DISMISSED THE AP PEAL OF THE ASSESSEE.THE ORDER OF LEARNED CIT(A) IS REPRODUCE D IN PRECEDING PARAS OF THIS ORDER WHICH IS NOT REPEATED AGAIN . THE MAIN CONTENTION OF REVENUE IS THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS(SUPRA) WAS PRONOUNCED ON 08 - 02 - 2012 WHILE THE ASSESSMENT ORDER WAS PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE 1961 ACT MUCH EARLIER ON 26 - 12 - 2008 AND THE ISSUE BEING DEBATABLE CAN NOT BE RECTIFIED WITHIN LIMITED MANDATE OF SECTION 154 OF THE 1961 ACT. THE CONTENTION OF R EVENUE ARE FALLACIOUS AS THE HONBLE SUPREME COURT INTERPRET PROVI SION OF LAW AND DECLARES THE LAW WITHIN A RTICLE 141 OF THE CONSTITUTION OF INDIA WHICH THEN RELATE BACKS TO THE DATE OF ENACTMENT OF THE PROVISION UNLESS OTHERWISE SPECIFIED BY THE HONBLE SUPREME COURT IN ITS JUDGMENT . THE HONBLE SUPREME COURT DO NOT EN ACT LAW AS IT IS THE FUNCTION OF THE P ARLIAMENT TO ENACT LAW BUT THE FUNCTION OF COURTS IS ONLY TO INTERPRET THE LAW WHICH EXISTED IN THE STATUTE ENACTED BY PARLIAMENT . O NCE HONBLE SU PREME COURT DECLARES THE LAWS BY INTERPRET ING THE PROVISION S OF STATUTE , THEN THE LAW AS INTERPRETED BY HONBLE SUPREME COURT IS TO BE READ FROM THE DATE WHEN THE PRO VISION WAS BROUGHT INTO STATUTE UNLESS OTHERWISE SPECIFIED BY THE HONBLE SUPREME COURT IN ITS JUDGEMENT. THUS NON CONSIDERATION OF THE DECISION OF HONBLE SU PREME COURT AS WELL AS SUBSEQUENT INTERPRETATION OF LAW BY HONBLE SUPREME COUR T AND ITS NON - CONSIDERATION BY R EVENUE IN ITS ORDER CONSTITUTE MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S. 154 OF THE ACT. THE DECISION OF HONBLE S UPREME COURT IN THE CASE ACIT V . SAURASHTRA KUTCH STOCK EXCHANGE LTD. REPOR TED IN (2008) 173 TAXMAN 322 (SC) AS WELL AS CIRCULAR OF THE DEPARTMENT VIDE CIRCULAR NO. 68 DATED 17.11.1971 BINDS THE REVENUE AND SUPPORT S THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE WILL BE ENTITLED FOR DEDUCTION U/S. 80HH C WITH RESPECT TO THE FACE VALUE OF DEPB AS CONTEMPLATED BY HONBLE I.T.A. NO.2073/MUM/2017 8 SU PREME COURT IN THE CASE OF TOPMA N EXPORTS (SUPRA) AS FACE VALUE OF DEPB IS COVERED U/S 28(IIIB) OF THE 1961 ACT AS CASH ASSISTANCE AND THE ASSESSEE S HALL BE ENTITLED FOR DEDUCTION U/S 80HHC READ WITH FIRST PROVISO TO SECTION 80HHC(3) . HOWEVER, THE ASSESSEE WILL BE ENT ITLED FOR DEDUCTION U/S 80HHC ON PROFITS ON SALE OF DEPB WHICH IS COVERED U/S 28(IIID) OF THE 1961 ACT PROVIDED CONDITIONS AS STIPULATED IN THIRD PROVISO TO SECTION 80HHC(3) ARE MET AS IT IS ADMITTED BY THE ASSESSEE THAT ITS TURNOVER IS MORE THAN RS TEN CRORES . OUR DECISION IS IN LINE WITH DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS(SUPRA) READ IN CONJUNCTION WITH PRO VISIONS OF SECTION 28(IIIB), 28(IIID) AND SECTION 80HHC OF THE 1961 ACT . THE AO SHALL ALLOW RELIEF TO THE ASSESSEE STRICTLY IN ACCORDANCE WITH DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AFTER CONSIDERING ASSESSEES FACTUAL MAT RIX . WE ORDER ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONO UNCED IN THE OPEN COURT ON 0 5 .10 .2018. 0 5 .10 .2018 S D / - S D / - (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 0 5 .10 .2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPEL LANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// I.T.A. NO.2073/MUM/2017 9 BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI