NAV BHARAT ENGINEERING INDUSTRIES P LTD, MUMBAI V. DCIT 7(1), MUMBAI

ITA 2427/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2735 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 28-04-2015
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 2427 /MUM/ 20 15 (ASSESSMENT YEAR 200 4 - 0 5 ) M/S. NAV BHARAT ENGINEERING INDUSTRIES P. LTD. 1 ST FLOOR, 37, BARODA STREET CARNAC BUNDER MUMBAI - 400 009. VS. DCIT 7(1) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACN3480G ASSESSEE BY SHRI RAHUL HAKANI DEPARTMENT BY SHRI AJAY DATE OF HEARING 1 2 . 7 . 201 6 DATE OF PRONOUNCEMENT 12 . 7 . 201 6 O R D E R THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 23.3.2015 PASSED BY LEARNED CIT(A) - 13, MUMBAI AND IT RELATES TO A.Y. 2004 - 05 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN CONFIRMING THE REJECTION OF CLAIM FOR DEDUCTION U/S. 80HHC OF THE ACT ON DEPB BENEFIT S. 3. I HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE A PROVISION FOR INCOME OF ` 10,49,758/ - RELATING TO DEPB LICENSE BENEFITS RECEIVABLE BY IT. THE ASSESSEE ALSO CLAIMED DEDUCTION U/S. 80HHC OF THE ACT ON THE ABOVE SAID RECEIVABLE S . THE ASSESSING OFFICER TOOK THE VIEW THAT DEDUCTION U/S. 80HHC SHALL BE ALLOWABLE ONLY ON THE PROFIT RECEIVED ON TRANSFER OF DEPB LICENSE AND NOT ON THE VALUE OF DEPB. ACCORDINGLY, HE DENIED DEDUCTION U/S. 80HHC IN RESPECT OF DEPB A MOUNT OF ` 10,49,758/ - ACCOUNTED FOR BY THE ASSESSEE . LEARNED CIT(A) ALSO CONFIRMED THE SAME AND HENCE THE ASSESSEE HAS FILED THE APPEAL BEFORE THE TRIBUNAL. M/S. NAV BHARAT ENGINEERING INDUSTRIES P. LTD. 2 4. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE FACE VALUE OF DEPB IS ASSESSABLE AS PROFITS AND GAINS OF BUSINESS U/S. 28( III B) OF THE ACT AND THE PROFIT ARISING ON SALE OF DEPB LICENSE IS ASSESSABLE U/S. 28( III D) OF THE ACT. HE FURTHER SUBMITTED THAT BOTH THE ABOVE SAID INCOMES ARE COVERED BY EXPLANATION (BAA) TO SECTION 80HHC OF THE ACT. HE SUBMITTED THAT THIS LEGAL POSITION HAS BEEN EXPLAINED BY HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (2012) 342 ITR 49. ACCORDINGLY, LEARNED AR SUBMITTED THAT THE TAX AUTHORITIES ARE NOT CORRECT IN LAW IN HOLDING THAT THE FACE VALUE OF DEPB BENEFITS IS NOT ELIGIBLE FOR DEDUCTION U/S. 80HHC OF THE ACT. 5. I HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. HAVING GONE THROUGH THE ORDER PASSED BY HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND THE PROVISION S OF SECTION 80HHC AND SECTION 28 OF THE ACT , I AM OF THE VIEW THAT THERE IS MERIT IN THE CONTENTIONS OF ASSESSEE. ACCORDINGLY I SET ASIDE THE ORDER PASSED BY LEARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S. 80HHC OF THE ACT ON THE FACE VALUE OF THE DEPB BENEFITS PROVIDED FOR BY THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1 2 .7.2016 SD/ - (B.R.BASKARAN ) ACCOUNTANT MEMBER MUMBAI ; DATED : 1 2 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS