DCIT 17(1), MUMBAI V. AMAR INTERNATIONAL, MUMBAI

ITA 354/MUM/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71422 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-03-2013
• Assessment Year: 2000-2001
• Appeal Filed On: 14-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Assessee Lawyers: PARAS S SAVLA
• Keywords: Tax effect
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.354/MUM/2010 (ASSESSMENT YEAR:2000-01) DY. CIT-17(1) 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL MUMBAI-12. VS. AMAR INTERNATIONAL AMAR HOUSE 14/16, NEAR SHARDA TALKIES MMGS MARG, DADAR (E) MUMBAI-400 014. (APPELLANT) (RESPONDENT) P.A. NUMBER : AAAFA 2660 E ASSESSEE BY : SHRI PARAS S. SAVLA REVENUE BY : SHRI S.K. MADHUK DATE OF HEARING : 21/08/2013 DATE OF PRONOUNCEMENT : 18/10/2013 O R D E R PER SANJAY GARG, JM: THIS APPEAL BY THE REVENUE HAS BEEN PREFERRED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) DATED 28.10.20 09 IN RELATION TO THE ASSESSMENT YEAR 2000-01. EARLIER THIS APPEAL OF THE REVENUE AND THE CROSS OBJECTION RAISED BY THE ASSESSEE WERE DISMISSED VID E ORDER OF THE ITAT DATED 28.7.2011 ON THE GROUND THAT THE TAX EFFECT WAS LES S THAN RS. 300000/-. HOWEVER THE SAID ORDER DT.28.7.2011 WAS RECALLED VIDE ORD ER DATED 4.1. 13 PASSED IN M.A. NO. 450/MUM/2012 ON THE APPLICATION OF THE REVENUE THAT THE TAX EFFECT WAS MORE THAN RS. 300000/- HENCE THE MATTER REAFFIXED F OR HEARING ON THE MERITS OF THE CASE, BUT THE CROSS OBJECTION BY THE ASSESSEE W AS NOT RECALLED. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE ALLOWANCE OF DEDUCTION BY THE CIT(A) U/S 80HHC IN RESPECT OF DEPB AND WHICH W AS DISALLOWED BY THE AO. ITA NO.354/M/10 AND CO.NO.150/M/10 A.Y.00-01 2 3. AT THE OUTSET THE LD. REPRESENTATIVE OF THE ASSE SSEE HAS CONTENDED THAT THE ISSUE RAISED IN THIS APPEAL QUA THE DEDUCTION U/S 8 0HHC ON THE AMOUNT OF DEPB IS NO MORE RES INTEGRA IN VIEW OF THE JUDGMENT OF T HE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS V. ITO [(2012) 67 DTR 18 5 (SC): 342 ITR49] IN WHICH IT HAS BEEN HELD THAT WHEN DEPB IS SOLD BY A PERSON, HIS PROFIT ON TRANSFER OF DEPB WILL BE SALES VALUE OF DEPB LESS ITS FACE V ALUE. IT HAS FURTHER BEEN HELD THAT DEPB IS CHARGEABLE AS INCOME U/S 28(IIIB) IN T HE YEAR IN WHICH SUCH PERSON APPLIES FOR DEPB AGAINST THE EXPORTS AND PROFIT ON SALE OF DEPB IS CHARGEABLE U/S 28(IIID) IN THE YEAR IN WHICH HE TRANSFERS DEPB. TH E LD. DR HAS ALSO NOT RAISED ANY CONTENTION AGAINST THE SETTLED LEGAL POSITION ON THE ISSUE. 3.1 RESPECTFULLY FOLLOWING THE LAW LAID DOWN BY THE HONBLE SUPREME COURT ON THE ISSUE, WE SET ASIDE THE ORDER UNDER APPEAL AND REMAND THE CASE BACK TO THE AO WITH A DIRECTION TO RECOMPUTE THE DEDUCTION UNDE R SECTION 80HHC IN ACCORDANCE WITH THE LAW AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS(SUPRA). 4. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH OCTOBER, 2013. SD/- SD/- (SANJAY ARORA ) ACCOUNTANT MEMBER (SANJAY GARG ) JUDICIAL MEMBER MUMBAI, DATED: 18/10/2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.