M/s Paramount Exports, MBD, Moradabad V. ACIT, Moradabad

ITA 3366/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2225 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 07-12-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 11-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: VIKRAM GULATI
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI A.K.GARODIA, AM ITA NO.3366/DEL/2008 ASSESSMENT YEAR : 2004-05 M/S PARAMOUNT EXPORTS, RAM LILA GROUND, THANA NAGPHANI, MORADABAD, UP. PAN NO.AAEFP0001E. VS. ASSTT.COMMISSIONER OF INCOME TAX, RANGE-1, MORADABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIKRAM GULATI, ADVOCATE. RESPONDENT BY : SHRI H.K.LAL, SR.DR. ORDER PER A.K.GARODIA, AM : THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LEARNED CIT(A), BAREILLY DATED 18.8.2008 FOR THE AY 2004-05. 2. AS PER GROUNDS OF APPEAL OF THE ASSESSEE, THE ON LY GRIEVANCE OF THE ASSESSEE IS REGARDING CONFIRMING THE EXCLUSION OF DEPB FROM BUSINESS PROFIT FOR COMPUTING DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC. 3. BRIEF FACTS ARE THAT IT IS STATED BY THE AO IN P ARA 3 OF THE ASSESSMENT ORDER THAT SINCE EXPORT TURNOVER OF THE ASSESSEE IS MORE THAN RS.10 CRORES, FOR COMPUTING THE DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC, DEPB CREDIT AMOUNTING TO RS.3,64,679/- WILL NOT BE CONSIDERED AS PART OF BUS INESS PROFIT. ACCORDINGLY, WHILE COMPUTING DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 8 0HHC, THE AO HAS REDUCED 90% OF DEPB OF RS.3,64,679/- I.E. RS.3,28,211/- FRO M THE BUSINESS PROFIT AND DID NOT INCLUDE IT THEREAFTER. BEING AGGRIEVED, THE AS SESSEE CARRIED THE MATTER IN APPEAL ITA-3366/DEL/2008 2 BEFORE THE LEARNED CIT(A) BUT WITHOUT SUCCESS AND N OW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. IT IS SUBMITTED BY THE LEARNED AR OF THE ASSESSE E THAT NOW THIS ISSUE HAS TO BE DECIDED AFRESH AS PER THE DECISION OF THE SPECIA L BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPORTS AS REPORTED IN 318 IT R (AT) 87 (SPECIAL BENCH). LEARNED DR FOR THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT NOW AS PER THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDE RED IN THE CASE OF TOPMAN EXPORTS (SUPRA), ONLY 90% OF PROFIT ON SALE OF DEPB IS TO BE EXCLUDED FROM BUSINESS PROFIT AND NOT 90% OF THE ENTIRE AMOUNT OF DEPB RECEIPTS. THIS ASPECT HAS ALSO BEEN DECIDED BY THE SPECIAL BENCH AS TO HO W PROFIT ON SALE OF DEPB HAS TO BE WORKED OUT. UNDER THESE FACTS, WE ARE IN AGR EEMENT WITH THE LEARNED AR OF THE ASSESSEE THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF THE AO FOR A FRESH DECISION AS PER THE DECISION OF THE SPECIAL BENCH OF THE TRI BUNAL AND HENCE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE AND R ESTORE THE MATTER BACK TO THE FILE OF THE AO FOR A FRESH DECISION IN THE LIGHT OF THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN EXPORTS (SU PRA). THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 7 TH DECEMBER, 2009. SD/- SD/- (C.L.SETHI) (A.K.GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.12.2009. VK. ITA-3366/DEL/2008 3 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR