ITO 8(1)(3), MUMBAI V. DIVYA EXPORTS P. LTD, MUMBAI

ITA 2584/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8206 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 05-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N DEVADASAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI D.K.AGARWAL, JM ITA NO.2584/MUM/2010 : ASST.YEAR 2004-2005 THE INCOME TAX OFFICER WARD 8(1)(3) MUMBAI. VS. M/S.DIVA EXPORTS PRIVATE LIMITED 34-D LAXMI INDUSTRIAL ESTATE NEW LINK ROAD, ANDHERI (WEST) MUMBAI 400 058. PA NO.AABCD2491E. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.N.DEVADASAN RESPONDENT BY : --- NONE --- O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 07.01.2010 IN RELATION TO ASSESSMENT YEAR 2004-2005 . 2. THE ONLY ISSUE IS AGAINST THE ALLOWING OF DEDUCT ION U/S.80HHC ON DEPB OF RS.93,53,646. THE LEARNED CIT(A) ACCEPTED THE ASSES SEES CLAIM BY RELYING ON THE SPECIAL BENCH ORDER PASSED BY THE TRIBUNAL IN M/S.TOPMAN EXPORTS VS. ITO [(2009) 318 ITR (AT) 87 (MUMBAI) (SB)] . 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. IT IS SEEN THAT THE SPECIAL BENCH ORDER PASSED IN THE CASE OF TOPMAN EXPORTS (SUPRA) HAS BEEN REVERSED BY THE HONBLE JURISDICTIONAL H IGH COURT IN CIT VS. KALPATARU COLOURS & CHEMICALS [(2010)192 TAXMAN 435 (BOM)]. WE, THEREFORE, OVERTURN THE IMPUGNED ORDER ON THIS ISSU E AND REMIT THE MATTER TO THE FILE OF A.O. FOR TAKING A FRESH DECISION IN ACCORDANCE W ITH THE HONBLE JURISDICTIONAL HIGH COURTS JUDGEMENT AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.2584/MUM/2010 M/S.DIVA EXPORTS PRIVATE LIMITED. 2 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 25 TH DAY OF FEBRUARY, 2011 . SD/- SD/- (D.K.AGARWAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 25 TH FEBRUARY, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) -XVI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.