Kapoor Industries, New Delhi V. ACIT Circle-24 (1), New Delhi

ITA 3245/DEL/2008

• Counselvise Citation: 324520114 RSA 2008
• Duration Of Justice: 3 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 13-01-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 29-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: R K MEHRA
• Keywords: Opportunity of being heard
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA ITA NO. 3245/DEL/2008 & 66/DEL/09 ASSTT. YRS: 2003-04 & 2000-01 KAPOOR INDUSTRIES VS. ACIT CIR. 24(1), 29A-2/1, DESU ROAD, MEHRAULI, NEW DELHI. NEW DELHI. PAN/GIR NO. AAAFK2669P (APPELLANT) ( RESPONDENT ) APPELLANT BY : SHRI R.K. MEHRA CA RESPONDENT BY : MS. Y. KAKKAR DR O R D E R PER R.P. TOLANI, J.M : THESE ARE ASSESSEES APPEALS AGAINST SEPARATE ORDE RS OF CIT(A), RELATING TO A.Y. 2003-04 & 2000-01 RESPECTIVELY, CH ALLENGING CALCULATION OF DEDUCTION U/S 80-HHC IN RESPECT OF FOLLOWING ITEMS: (I) INTEREST INCOME. (II) HOLDING THAT AS PER SECTION 28(IIID) OF THE ACT IT IS ONLY THE GROSS FIGURE OF PROFITS ARISING ON TRANSFER OF DEPB WHICH ARE REQUIRED TO BE REDUCED UNDER CLAUSE (BAA) OF THE EXPLANATION OF SECTION 80HHC INSTEAD OF NETTING OFF SUCH GROSS AMOUNT BY T HE AMOUNT OF LOSS ARISING ON TRANSFER OF CERTAIN DEPB AT DISCOUN T. BOTH THE APPEALS ARE HEARD TOGETHER AND DISPOSED OF F BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 2. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT T HE ISSUE IN QUESTION WAS EARLIER DECIDED IN FAVOUR OF THE ASSESSEE AND O N REVENUES APPEAL HONBLE DELHI HIGH COURT VIDE CONSOLIDATED ORDER DA TED 18-2-2011, IN GROUP CASES, REMITTED THE ISSUE TO THE FILE OF ITAT BY FO LLOWING OBSERVATIONS: 3. THE REVENUE HAD FILED THE APPEAL IN THE HIGH C OURT 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 JUDGM ENT OF THE BOMBAY HIGH COURT IS REPORTED AS COMMISSIONER OF IN COME TAX VS. KALPATARU COLOURS AND CHEMICALS, 328 ITR 45 1. 4. SINCE THE TRIBUNAL HAD SIMPLY FOLLOWED SPECIAL B ENCH DECISION IN TOMPAN 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 DECIDE THESE APPEALS ON MERITS AFTER TAKING INTO ACCOUNT FACTUAL POSITIO N IN ALL THESE CASES. 3.1. LD. COUNSEL AT THE TIME OF HEARING CONTENDED T HAT ONE OF THE SIMILAR CASE, IN THE CASE OF SANGEETA JAIN, WHICH WAS REMIT TED BACK TO ITAT BY WAY OF ABOVE GROUP ORDER BY THE HONBLE DELHI HIGH COUR T CAME UP FOR HEARING BEFORE ITAT. VIDE ORDER DATED 25-10-2011 RENDERED I N ITA NO. 3160/DEL/08 IN THE CASE OF SANGEETA JAIN, THE ITAT RESTORED THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION, OBSERVING AS UNDER: 2. THE LD. AR SUBMITTED THAT FACTS NEED VERIFICATI ON AT THE LEVEL OF THE AO AS HEREIN ALSO MERELY THE ORDER OF THE SPECIAL BENCH HAS BEEN FOLLOWED, AS SUCH A PRAYER WAS MADE THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF AO. THE L D. DR HAD NO OBJECTION TO THE SAID PRAYER. 3. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS ADVA NCED IT IS CONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF AO WITH THE DIRECTIONS TO DECIDE THE SAME IN ACCORD ANCE WITH 3 LAW, BY WAY OF A SPEAKING ORDER AFTER GIVING THE AS SESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 4. LEARNED DR IS HEARD ON THE ISSUE. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. FOLLOWING THE ABOVE ORDER OF THE ITAT IN THE CASE OF SANGEETA JAIN, THE ISSUES HAVE TO GO BACK T O THE FILE OF AO. BESIDES WE HAVE BEEN INFORMED THAT HONBLE SUPREME COURT BY A LATEST DECISION IN THE CASE OF TOPMAN EXPORTS [CIVIL APPEAL NO. 7699 O F 2012 (SLP NO. 26558/2010)], DEALT WITH THE ISSUE AS DECIDED BY TH E HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICA LS (SUPRA). CONSEQUENTLY, IN BOTH THE ASSESSMENT YEARS THE ISSU ES ARE RESTORED BACK TO THE FILE OF AO, WHO IS DIRECTED TO ADJUDICATE THE I SSUE AFRESH IN ACCORDANCE WITH LAW, KEEPING IN VIEW THE ABOVE JUDICIAL AUTHOR ITIES. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 17-02-2012. SD/- SD/- ( B.C. MEENA ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17-02-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4