M/S. KISHAN BIHARI KAGZI (HUF), MUMBAI V. THE ACIT 14(1), MUMBAI

ITA 2470/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48615 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 27-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K V SAMPATHKUMAR
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI R,S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. ITA NO. 2470/MUM/2008 ASSESSMENT YEAR: 2004-05 KISHAN BIHARI KAGZI (HUF) APPELLANT 69/71, DHANJI STREET, MUMBAI 400 003. (PAN AABPK 8371 R) VS. ASSTT. COMMISSIONER OF INCOME-TAX, RESPONDENT 14(1), MUMBAI APPELLANT BY : MR. VIJAY MEHTA RESPONDENT BY : MR. K.V. SAMPATHKUMAR . ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- XIV, MUMBAI, PASSED ON 4 TH MARCH, 2008 FOR THE ASSESSMENT YEAR 2004-05. 2. GROUND NO.1 READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES, THE CIT(A) L EGALLY ERRED IN CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN NO T CONSIDERING THE DEPB RECEIVABLE AT THE END OF THE PREVIOUS YEAR WORTH RS. 21,36,802/- AS EXPORT INCENTIVES FOR THE PURPOSE OF ALLOWING DEDUCTION UNDER SECTION 80 HHC TO THE APPELLANT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER NOTICED THAT THE ASSESSEE HAD SHOWN VALUE OF DEPB L ICENCES IN HAND IN AND RECEIVABLE AT RS. 21,36,802/-. THE O WAS OF THE VIEW THAT SINCE THE SAID INCOME WAS NOT COVERED U/S 28(IIID), THE A MOUNT OF RS. 21,36,802/- DESERVED TO BE EXCLUDED FOR THE COMPUTA TION OF DEDUCTION ITA NO. 2470/M/2008 KISHAN BIHARI KGZIL 2 U/S 80 HHC. THEREFORE, THE ASSESSING OFFICER DENIED THE DEDUCTION U/S 80 HHC TO THE ASSESSEE WITH REGARD TO DEPB LINC ENSES IN THE HAND AND RECEIVABLE AT RS. 21,36,802/-. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 4. AFTER HEARING THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSING THE RECORD, WE FIND THAT THE ISSUE UNDER C ONSIDERATION IS COVERED BY THE JUDGMENT OF THE HONBLE JURISDICTION AL HIGH COURT IN THE CASE OF CIT VS. M/S.KALPATARU COLOURS & CHEMICA LS, [2010] 192 TAXMAN 435 (BOM). WE, THEREFORE, SET ASIDE THE IMPU GNED ORDERS ON THIS ISSUE AND DIRECT THE AO TO RE-COMPUTE THE DEDU CTION UNDER SEC.80HHC FOLLOWING THE JUDGMENT OF THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF M/S KALPATARU COLOURS & CHEMIC ALS (SUPRA) AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO IN THE FRESH PROCEEDINGS. 5. GROUND NO. REGARDING DEPB RECEIVABLES IS NOT TAX ABLE IN VIEW OF THE MUMBAI ITAT JUDGMENT IN THE CASE OF VAISHNO TRA DERS VS. ITO IN ITA NO. 5176 & 5186/MUM/2006, HAS NOT PRESSED BY TH E LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEF ORE US. THEREFORE, THIS GROUND IS DISMISSED AS NOT PRESSED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 29 TH APRIL, 2011. SD/- SD/- (R.S.SYAL) (V. DURGA R AO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 29 TH APRIL, 2011 ITA NO. 2470/M/2008 KISHAN BIHARI KGZIL 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV