SANJAY DINESHCHANDRA AJMERA ( PROP. OF M/S. P.K. INTERNATIONAL), MUMBAI V. ITO WD 14(1)(2), MUMBAI

ITA 3689/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5132 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 12-12-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Keywords: Reasonable cause
• Section: 80HHC; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , , , ! ' BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY AROR A, AM ./ I.T.A. NO.3689/MUM/2012 ( # # # # $ $ $ $ / ASSESSMENT YEAR :2003-04 SANJAY DINESHCHANDRA AJMERA (PROP OF M/S. P.K. INTERNATIONAL), 1, SHREENATH APARTMENT, 259, S.V. ROAD, BORIVALI(W), MUMBAI-400 092 THE ITO, WARD 14(1)(2), MUMBAI % ! ./ & ./PAN/GIR NO. : AABPA 2398A ( %' /APPELLANT ) .. ( ()%' / RESPONDENT ) %' * / APPELLANT BY : ` SHRI ANUJ KISNADWALA ()%' + * /RESPONDENT BY : SHRI ASHOK SURI # + ,-! / DATE OF HEARING :12.12.2013 .$ + ,-! / DATE OF PRONOUNCEMENT : 12.12.2013 / / O R D E R PER I.P BANSAL, JM: THE APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECT ED AGAINST THE ORDER OF THE LD. CIT(A)-25, MUMBAI DT.18.1.2012 FOR A.Y. 2003-04. 2. THE GROUNDS OF APPEAL READ AS UNDER: ITA NO.3689/M/2012 2 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER OF THE AO WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF DEDUCTION U/S. 80HHC OF THE ACT MADE BY THE AO ON INCORRECT INTERPRETATION OF T HE PROVISIONS OF THE ACT. THE LD. CIT(A) OUGHT TO HAV E ALLOWED THE CLAIM FOR DEDUCTION U/S. 80HHC OF THE ACT AMOUN TING TO RS. 6,60,114/- AS MADE BY THE APPELLANT SINCE IT WA S IN ACCORDANCE WITH THE STATUTORY PROVISIONS. 3. THE APPEAL FILED BY THE ASSESSEE IS DELAYED BY 6 2 DAYS. THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF D ELAY WHICH IS SUPPORTED BY AN AFFIDAVIT FILED BY SHRI SNAJAY DINESHCHANDRA AJMERA WHO IS PROPRIETOR OF M/S. P.K. INTERNATIONAL. IT IS THE C ASE OF THE ASSESSEE THAT LD. CIT(A) WHILE GIVING HIS DECISION ON THE DEDUCTI ON U/S. 80HHC RELYING UPON THE DECISION OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS KALPATARU COLOURS AND CHEMICALS 328 ITR 4 51 HAS RENDERED ITS ORDER ON 18.1.2012. SUBSEQUENT TO PASSING THE ORDER OF THE LD. CIT(A) A CONTRARY VIEW WAS TAKEN BY THE HONBLE SUP REME COURT WHICH WAS CONTRARY TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS KALPATARU COLOURS AND CHEMICALS (SUPRA) A ND IT WAS THE DECISION IN THE CASE OF TOPMAN EXPORTS VS CIT WHICH WAS RENDERED ON 8.2.2012. THE ASSESSEE WAS HAVING BELIEF THAT SUBS EQUENT DECISION RENDERED BY THE HONBLE APEX COURT GIVE RISE TO A M ISTAKE IN THE ORDER OF THE LD. CIT(A) AS THE DECISION RENDERED BY LD. CIT( A) WAS CONTRARY TO THE DECISION OF APEX COURT. THEREFORE, ASSESSEE PR EFERRED AN APPLICATION BEFORE THE LD. CIT(A) WHICH WAS FILED U/S. 154 OF T HE ACT REQUESTING TO RECTIFY THE MISTAKE. THE SAID APPLICATION WAS FILE D BEFORE THE COMMISSIONER ON 29.2.2012. COPY OF APPLICATION FIL ED BY THE ASSESSEE IS ENCLOSED WITH THE APPLICATION FILED FOR THE CONDONA TION OF DELAY. AS THE ITA NO.3689/M/2012 3 SAID RECTIFICATION WAS NOT AFFECTED BY LD. CIT(A), THE ASSESSEE WAS ADVISED TO FILE AN APPEAL BEFORE THE TRIBUNAL. 4. IT WAS SUBMITTED BY LD. AR THAT APPLICATION FILE D BEFORE THE LD. CIT(A) IS STILL PENDING. IT WAS FURTHER SUBMITTED THAT AS ASSESSEE HAD AVAILED ALTERNATIVE REMEDY, THE DELAY MAY BE CONDON ED. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE OPPOSED THE CONDONATION OF DELAY. 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. W E ARE SATISFIED THAT ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FOR NOT FILING THE APPEAL BEFORE THE TRIBUNAL WITHIN THE PRESCRIBED TIME. WE CONDONED THE DELAY AND PROCEED TO DECIDE THIS APPEAL ON MERITS. 7. IT WAS SUBMITTED BY LD. AR THAT ACCORDING TO THE AFOREMENTIONED DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F TOPMAN EXPORT VS CIT 342 ITR 49, THE ASSESSEE IS ENTITLED TO GET REL IEF AND IT WILL SERVE THE INTEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF THE AO DIRECTING HIM TO RECOMPUTE THE DEDUCTION U/S. 80HHC AS PER THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORT (SUPRA). 8. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY OBJECTION TO SUCH REQUEST OF THE LD. AR. 9. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE RESTORE THE ISSUE OF DEDUCTION U/S. 80HHC TO THE FI LE OF THE AO WITH A DIRECTION TO RECOMPUTE DEDUCTION U/S. 80HHC IN ACCO RDANCE WITH AFOREMENTIONED DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORT (SUPRA). IT IS NEEDLESS TO OBSERVE T HAT WHILE DOING SO, THE AO WILL GIVE A REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. WE DIRECT ACCORDINGLY. ITA NO.3689/M/2012 4 10. FOR STATISTICAL PURPOSE, APPEAL FILED BY THE AS SESSEE IS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 12.12.2013 . / + $ ! 0 1#2 12.12.2013 + 3 SD/- SD/ (SANJAY ARORA) (I.P. BANSAL ) ! / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 1# DATED 12/12/2013 . # . ./ RJ , SR. PS / / / / + ++ + (,4 (,4 (,4 (,4 5 4$, 5 4$, 5 4$, 5 4$, / COPY OF THE ORDER FORWARDED TO : 1. %' / THE APPELLANT 2. ()%' / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 473 (,# , , / DR, ITAT, MUMBAI 6. 38 9 / GUARD FILE. /# /# /# /# / BY ORDER, )4, (, //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI