Sangeeta Jain, New Delhi V. DCIT Circle-24 (1), New Delhi

ITA 3160/DEL/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53041 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 25-10-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 17-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: SUNIL JAIN
• Keywords: Opportunity of being heard; Competent authority
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: G NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER ITA NO: 3160/DEL/2008 A.Y. : 2003-2004 SANGEETA JAIN VS. DCIT,CIRCLE 24(1) 289, CHATTARPUR PAHARI NEW DELHI NEW DELHI PAN: AAGPJ 4535 P (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUNIL JAIN, C.A. RESPONDENT BY : SH. S. MOHANTY, D.R. O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 14.8.2008 OF CIT(A)-XXV, NEW DELHI PERTAINING T O A.Y. 2003-04 ON THE GROUNDS AGITATED BY THE ASSESSEE. THE APPEAL OF T HE ASSESSEE WAS HEARD BY THE CO-ORDINATE BENCH ON 15.9.2009 AND ALLOWED. A PERUSAL OF THE SAID ORDER SHOWS THAT THE GROUND NOS. 1 AND 2 BEFOR E THE TRIBUNAL WERE IN RESPECT OF COMPUTATION OF DEDUCTION U/S 80 HHC IN RESPECT OF DEPB CREDIT WHEREIN THE TRIBUNAL RELIED UPON THE ORDER O F THE SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS VS ITO (IN ITA NO. 5769/ MUM./2006 DECIDED ON 11 TH AUGUST, 2009 AND DIRECTED THE A.O. TO MODIFY THE O RDER. THE SAID ISSUE WAS AGITATED BY THE REVENUE BEFORE THE H ONBLE HIGH COURT OF ITA 316 0/DEL/2008 PAGE 2 OF 3 A. Y. 2003-04 MS.SANGEETA JAIN, N.DELHI DELHI. THE HONBLE HIGH COURT THEREIN WAS PLEASED TO PASS THE FOLLOWING ORDER. 2. THE ORDERS PASSED BY THE TRIBUNAL IN ALL THESE CASES ARE BRIEF BECAUSE OF THE REASON THAT THE TRIBUNAL HAS S IMPLY FOLLOWED (WHICH IT WAS SUPPOSED TO) THE DECISION OF THE ITAT SPECIAL BENCH, MUMBAI IN THE CASE OF TOPMAN EXPORTS VS ITO (IN ITA NO. 5769/MUM./2006 DECIDED ON 11 TH AUGUST, 2009). BY THAT JUDGEMENT, THE SPECIAL BENCH OF THE TRIBUNA L HAS HELD THAT THE FACE VALUE OF DEPB IS CHARGEABLE TO TAX U/ S 28 (III B) AT THE TIME OF ACCRUAL OF INCOME, THAT IS, WHEN THE APPLICATION FOR DEPB IS FILED WITH THE COMPETENT AUTHORITY PURS UANT TO EXPORTS AND PROFIT IN SALE OF DEPB REPRESENTING THE EXCESS OF SALE PROCEEDS OF DEPB OVER ITS FACE VALUE IS LIABLE TO BE CONSIDERED U/S 28 (III D) AT THE TIME OF ITS SALE. 3. THE REVENUE HAD FILED THE APPEAL IN THE HIGH COU RT ADJUDICATE AT BOMBAY AGAINST THE AFORESAID DECISION OF THE SPECIAL BENCH OF THE ITAT. THE BOMBAY HIGH COURT H AS REVERSED THE DECISION OF THE TRIBUNAL AND THE JUDGE MENT OF THE BOMBAY HIGH COURT IS REPORTED AS CIT VS. KALPATARU COLOURS AND CHEMICALS, 328 ITR 451. 4. SINCE THE TRIBUNAL HAD SIMPLY FOLLOWED SPECIAL B ENCH DECISION IN TOPMAN EXPORTS (SUPRA) WHICH STANDS OVE R RULED, WE SET ASIDE THE ORDER PASSED BY THE TRIBUNAL IN AL L THESE CASES AND REMIT THE CASES BACK TO THE TRIBUNAL TO D ECIDE THESE APPEALS ON MERITS AFTER TAKING INTO ACCOUNT FACTUAL POSITION IN ALL THESE CASES. 2. THE LD.A.R. SUBMITTED THAT FACTS NEED VERIFICATI ON AT THE LEVEL OF THE AO AS HEREIN ALSO MERELY THE ORDER OF THE SPECIAL B ENCH HAS BEEN FOLLOWED, AS SUCH A PRAYER WAS MADE THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF A.O. THE LD.D.R. HAD NO OBJECTION TO THE SAID PRAYER. 3. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS ADV ANCED IT IS CONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF A.O. WITH THE DIRECTIONS TO DECIDE THE SAME IN ACCORDANCE WIT H LAW, BY WAY OF A ITA 316 0/DEL/2008 PAGE 3 OF 3 A. Y. 2003-04 MS.SANGEETA JAIN, N.DELHI SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER,2011. SD/- SD/- (B.C.MEENA ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH OCTOBER, 2011 *MANGA COPY OF THE ABOVE ORDER IN ITA 2379/DEL/2010 FORWA RDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR