D.M. EXPORTERS, MUMBAI V. ITO WD 14(1)(2), MUMBAI

ITA 3690/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88090 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-01-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 24-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM ./ I.T.A. NO. 3690/MUM/2012 ( / ASSESSMENT YEAR: 2003-04) D. M. EXPORTERS, 80, KOLBHAT LANE, JAIN BHAVAN, 2 ND FLOOR, KALBADEVI ROAD, MUMBAI-400 002 / VS. ITO, WARD-14(1)(2), MUMBAI ./! ./PAN/GIR NO. AAAFD 1917 F ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : SHRI VIJAY MEHTA #$ ' % & / RESPONDENT BY : SHRI LOVE KUMAR ' ( ) % * + / DATE OF HEARING : 27.01.2015 , -. % * + / DATE OF PRONOUNCEMENT : 30.01.2015 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-25, MUMBAI (CIT(A) FOR SH ORT) DATED 18.01.2012, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2003-04 VIDE ORDER DATED 21.03.2006. 2. OPENING THE ARGUMENT FOR AND ON BEHALF OF THE AS SESSEE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE ASSESSEES APPEAL IS DELAYED BY A PERIOD OF 62 DAYS. HOWEVER, THERE ARE VALID REASONS TO IT, WHICH IN FACT, 2 ITA NO. 3690/MUM/2012 (A.Y. 2003-04) D. M. EXPORTERS VS. ITO STAND ACCEPTED BY THE TRIBUNAL IN THE CASE OF ANOTH ER ASSESSEE, I.E., SANJAY DINESHCHANDRA AJMERA VS. ITO (IN ITA NO. 3689/MUM/2012 DATED 12.12.2013), PLACI NG A COPY OF THE SAME ON RECORD, WITH IN FACT THE SUBJ ECT MATTER OF THE APPEAL BEING ALSO THE SAME, SINCE ALLOWED BY THE BENCH, SO THAT THE MATTE R CAN BE SAID TO BE SQUARELY COVERED BY THE SAID DECISION. AS REGARDS THE REASONS FOR THE DELAY, I.E., AS PER THE CONDONATION APPLICATION FILED ALONG WITH THE APPEAL MEMO (PER ANNEXURES THERETO) AND, FURTHER, DULY AVERRED PER THE AFFIDAVIT DATED 21.05.2012 BY RAVINDRA DINESHCHANDR A AJMERA, THE MANAGING PARTNER OF THE ASSESSEE-FIRM, ARE THAT THE LD. CIT(A) DISALLOW ED THE ASSESSEES CLAIM FOR DEDUCTION U/S.80-HHC ON DUTY ENTITLEMENT PASS BOOK (DEPB) RECEIPT FOLLOWING THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. KALPATARU COLOURS & CHEMICALS [2010] 328 ITR 451 (BOM), WHICH STOOD RENDERED ON 18.01.2012. THE SAID DECISION STOOD DISAPPROVED BY THE HONBLE APEX COUR T VIDE ITS DECISION DATED 08.02.2012 IN THE CASE OF TOPMAN EXPORTS VS. CIT [2012] 342 ITR 49 (SC). THE ASSESSEE, ACCORDINGLY, MOVED AN APPLICATION U/S. 154 OF THE A CT WITH THE LD. CIT(A) ON 29.12.2012 (ANNEXURE A TO THE APPLICATION) IN-AS-MUCH AS THE J UDGMENT OF THE APEX COURT LAYS DOWN THE LAW OF THE LAND, SO THAT ANY DECISION INCONSIST ENT THEREWITH CONSTITUTES, TO THAT EXTENT, A MISTAKE APPARENT FROM RECORD, RECTIFIABLE U/S. 15 4, ALSO ENCLOSING ALONG WITH THE GIST OF THE RELEVANT BOARD CIRCULAR IN THE MATTER (ANN. B). THE LD. CIT(A), HOWEVER, DESPITE REPEATED REMINDERS, CHOSE NOT TO TAKE ANY ACTION IN THE MATTER. THE ASSESSEE, CONSIDERING THAT THE TIME WAS PASSING BY, FILED AN APPEAL, AND HENCE THE DELAY OF NEARLY 2 MONTHS. ON MERITS, THE TRIBUNAL AS IN THE CASE OF SANJAY DINESHCHANDRA AJMERA (SUPRA), RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER (A.O.) TO RECOMPUTE THE DEDUCTION U/S.80-HHC IN ACCORDANCE WITH THE DECISIO N BY THE APEX COURT IN TOPMAN EXPORTS (SUPRA). IN FACT, THE LD. AR WOULD FURTHER CONTINUE , THE TRIBUNAL HAS ITSELF IN SEVERAL DECISIONS RECALLED ITS EARLIER ORDER CONFIR MING THE DENIAL OF DEDUCTION U/S.80-HHC ON DEPB/DDB FOLLOWING THE DECISION IN THE CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA), RESTORING THE MATTER BACK FOR RECONSIDERAT ION. 3 ITA NO. 3690/MUM/2012 (A.Y. 2003-04) D. M. EXPORTERS VS. ITO THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON BEING QUESTIONED IN THE MATTER, COULD NOT REBUT ANY OF THE ASSERTIONS BY THE LD. AR . 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE ASSESSEE WAS, AND IN OUR VIEW NOT INCORRECT LY, PERUSING AN ALTERNATE REMEDY, I.E., U/S.154, BEFORE THE FIRST APPELLATE AUTHORITY , AND WHICH EXPLAINS THE DELAY BY ABOUT TWO MONTHS IN FILING THE INSTANT APPEAL BEFORE THE TRIBUNAL. AN APPEAL BEFORE THE TRIBUNAL ENTAILS COST IN TERMS OF FILING FEES AND COUNSEL FE ES AND, THEREFORE, IF THE MATTER IS IN ITS OPINION DIRECTLY COVERED BY THE DECISION BY THE APE X COURT, RECOURSE TO SECTION 154 CANNOT BE FAULTED WITH. EVEN OTHERWISE, PURSUING AN ALTERN ATE REMEDY ITSELF ESTABLISHES THE ASSESSEES BONA FIDES WITH REGARD TO THE DELAY ATTENDING ITS APPEAL. WE, THEREFORE, ADMIT THE ASSESSEES APPEAL, CONDONING THE DELAY. 3.2 THE FACTS OF THE CASE ARE UNDISPUTED. THE ASSES SEES CLAIM FOR DEDUCTION U/S.80HHC, CLAIMED AT RS.7,79,040/-, STOOD DETERMIN ED AT NIL VIDE THE IMPUGNED ASSESSMENT IN VIEW OF THE AMENDMENT TO THE TAXATION LAWS (AMENDMENT) ACT, 2005. THE SAME STOOD CONFIRMED IN APPEAL FOLLOWING THE DECISI ON BY THE APEX COURT IN LIBERTY INDIA VS. CIT [2009] 317 ITR 218 (SC). THE MATTER HAS SINCE BEEN CONSIDERED BY THE APEX COURT IN TOPMAN EXPORTS (SUPRA). UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSIN G OFFICER TO CONSIDER THE ASSESSEES CLAIM FOR DEDUCTION U/S.80-HHC IN LIGHT OF THE SAID DECISION. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 0. *1 (2 30* % 4% 567 89 : * % * ;< ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 30, 2 015 SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' =) MUMBAI; >( DATED : 30.01.2015 .(../ ROSHANI , SR. PS 4 ITA NO. 3690/MUM/2012 (A.Y. 2003-04) D. M. EXPORTERS VS. ITO ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' ?* ( ) / THE CIT(A) 4. ' ?* / CIT - CONCERNED 5. B C #*(D2 , + D2. , ' =) / DR, ITAT, MUMBAI 6. C 3 E ) / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' =) / ITAT, MUMBAI