ADNANI ENTERPRISES, MUMBAI V. DCIT 14(2), MUMBAI

ITA 3734/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3622 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-03-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURLIDR
• Keywords: Opportunity of being heard; Question of law
• Section: 143(3); 142(1); 80HHC; 260A; 28; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.3734/MUM/2013 ASSESSMENT YEAR-2002-03 M/S ADNANI ENTERPRISES, 3, DADI MANSION, BEHIND METRO CINEMA, CINEMA ROAD, MUMBAI-400020 / VS. ACIT - 14(2), 3 RD FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400024 PAN N O. AAEFA6895R ( / APPELLANT) ( / RESPONDENT) ! / ASSESSEE BY SHRI NISHIT GANDHI ' / REVENUE BY SHRI M.MURLI-DR # '$ % !& / DATE OF HEARING : 14/03/2016 % !& / DATE OF ORDER: 14/03/2016 ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 2 / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/02/2013 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, ON THE GROUNDS THAT FIRSTLY PROPER/SUFFICIE NT AND ADEQUATE OPPORTUNITY OF BEING HEARD WAS NOT PROVIDE D TO THE ASSESSEE AND SECONDLY NOT CONSIDERING THAT THE INCOME OF ACCRUED DEPB OF RS.11,12,643/- WAS TAXED TWO TIM ES I.E. IN A.Y. 2002-03 AND 2003-04 AND FURTHER WHILE CONSI DERING THE RECTIFICATION APPLICATION MADE U/S 154 OF THE A CT. 2. DURING HEARING, SHRI NISHIT GANDHI, LD. COUNSEL FOR THE ASSESSEE, CONTENDED THAT THE LD. COMMISSIONER OF IN COME TAX (APPEALS) DID NOT PROVIDE ADEQUATE AND SUFFICIE NT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR, SHRI M. MURLI, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE AT THE RELEVANT TIME WAS 100% EXPORTER OF TEXTILE ITEMS. THE ASSESSEE DECLARED I NCOME OF RS.35,27,000/- IN ITS RETURN FILED ON 24/10/2012, W HICH WAS COMPLETED U/S 143(3) OF THE ACT ON 19/03/2005 ASSESSING THE INCOME AT RS.65,67,080/-. WHILE FRAM ING THE ASSESSMENT, THE CLAIMED DEDUCTION U/S 80HHC ON DEPB , AMOUNTING TO RS.42,35,420/- WAS DISALLOWED ON THE G ROUND THAT DEPB DOES NOT FALL UNDER THE PROVISIONS OF SEC TION 28(IA) OR 28(IIIB) OR 28(IIIC) BUT U/S 28(I) AND 28 (V) OF THE ACT. ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 3 THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) AND DIRECTED THE LD. ASSESS ING OFFICER TO ACCEPT THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. THE DEPARTMENT PREFERRED BEFORE THE TRIB UNAL AGAINST THAT ORDER OF THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) WHEREIN, THE ORDER OF THE LD. FIRST APPEL LATE AUTHORITY WAS SET-ASIDE FOR TAXING THE DEPB ON CASH BASIS UPHOLDING THE ASSESSMENT ORDER AND RESTORED THE ISS UE TO THE ASSESSING OFFICER FOR ASCERTAINING THE PURPOSE OF ACCRUAL OF INCOME OF DEPB WITH FURTHER DIRECTION TO SEE WHETHER THE ASSESSEE GETS THE BENEFIT OF DOUBLE DED UCTION U/S 80HHC OF THE ACT ON ACCRUED DEPB I.E. A.Y. 2002 -03 AND 2003-04. 2.2. PURSUANT TO THE DIRECTIONS OF THE TRIBUNAL, N OTICE U/S 142(1) ALONG WITH QUESTIONNAIRE WAS SERVED UPON THE ASSESSEE FOR APPEARANCE ON 17/10/2011 FOR ITS EXPLA NATION, AS TO WHY, THE ACCRUED DEPB OF RS.11,12,643/- SHOUL D NOT BE ADDED TO THE TOTAL INCOME AND FURTHER WHY THE CL AIMED DEDUCTION U/S 80HHC SHOULD NOT BE DISALLOWED ON DEP B. NONE ATTENDED ON THE APPOINTED DATE BUT SOUGHT ADJOURNMENT BY FILING A LETTER. THE MATTER REMAINE D PENDING FOR SOME TIME. FINALLY, THE AUTHORIZED REPRESENTATIVES OF THE ASSESSEE, VIDE LETTER DATED 14/12/2011 CLAIMED THAT THE ACCRUED DEPB AMOUNTING TO RS.11,12,643/- SHOULD NOT BE ADDED TO THE TOTAL INC OME OF THE ASSESSEE AS THE SAME HAS ALREADY BEEN ADDED IN A.Y. 2003-04, BY FURTHER CLAIMING THAT THE DISALLOWANCE OF ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 4 CLAIMED DEDUCTION U/S 80HHC ON DEPB, IT CANNOT BE DISALLOWED IN VIEW OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TOPMAN EXPORTS, HOLDING THAT ONLY P ROFIT OF TRANSFER OF DEPB WILL BE TAKEN FOR CALCULATION OF D EDUCTION U/S 80HHC AND NOT THE ENTIRE SALE PROCEEDS AND THAT TO IN A CASE, WHERE THE EXPORT TURNOVER IS MORE THAN 10 C RORES. THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED ON THE GROUNDS (A) THE ASSESSEE MAINTAINED ITS BOOKS OF ACCOUNTS ON MERCANTILE BASIS (B) SECTION 145A DOES NOT ALLOW MIX SYSTEM OF ACC OUNTING AND THE ASSESSEE COULD HAVE FOLLOWED EITHER TAX OR MERCANTILE SYSTEM. (C) THE METHOD TO BE FOLLOWED IN ACCOUNTING IN DEP B ACCOUNTS IS ESSENTIALLY MERCANTILE AND EMBEDDED IN THE SCHEME ITSELF AS THE AMOUNTS ARE ENTERED ON ACCRUED BASIS IN THE FORMS OF DEBITS AND CREDITS IN THE PASSBOOK ISSUED FOR THE PURPOSES (D) THE PRINCIPLE OF RES-JUDICATA IS NOT APPLICABL E IN INCOME TAX PROCEEDINGS. IN THE LIGHT OF THE ABOVE PLEAS, THE EXPLANATION OF THE ASSESSEE WAS REJECTED AND ADDITION WAS MADE TO THE TOTAL INCOME. 2.3. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE CONTENTION OF THE ASSESSE E WAS CONSIDERED AND THE STAND TAKEN IN THE ASSESSMENT OR DER. THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBU NAL. IT IS NOTED THAT THE DECISION OF THE TRIBUNAL IN TOPMAN E XPORTS ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 5 WAS REVERSED BY HONBLE JURISDICTIONAL HIGH COURT. ON FURTHER APPEAL, THE HONBLE APEX COURT SET-ASIDE TH E ORDER OF THE HONBLE HIGH COURT IN CIVIL APPEAL NO. 1699 OF 2012 (ARISING OUT OF SLP (C) NO. 26558 OF 2010), ET C. THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDE R:- THESE ARE APPEALS BY WAY OF SPECIAL LEAVE UNDER ART ICLE 136 OF THE CONSTITUTION AGAINST THE JUDGMENT AND ORDERS OF THE B OMBAY HIGH COURT HOLDING THAT THE ENTIRE AMOUNT RECEIVED BY AN ASSESSE E ON SALE OF THE DUTY ENTITLEMENT PASS BOOK (FOR SHORT THE DEPB) REPRESEN TS PROFIT ON TRANSFER OF DEPB UNDER SECTION 28(IIID) OF THE INCOME TAX ACT , 1961 (FOR SHORT THE ACT) FOR THE PURPOSE OF THE COMPUTATION OF DEDUCTIO N IN RESPECT OF PROFITS RETAINED FOR EXPORT BUSINESS UNDER SECTION 80HHC OF THE ACT. 3. FOR APPRECIATING THE CONTROVERSY BETWEEN THE PARTIES, WE WILL STATE THE FACTS OF ONLY THE LEAD CASE OF M/S TOPMAN EXPORTS (HEREINA FTER REFERRED TO AS THE ASSESSEE). THE ASSESSEE IS A MANUFACTURER AND E XPORTER OF FABRICS AND GARMENTS. DURING THE PREVIOUS YEAR RELEVANT TO THE AS SESSMENT YEAR 2002- 2003, THE ASSESSEE SOLD THE DEPB AND DFRC (DUTY FREE RE PLENISHMENT CERTIFICATE) WHICH HAD ACCRUED TO THE ASSESSEE ON EXPOR T OF ITS PRODUCTS. THE ASSESSEE FILED A RETURN FOR THE ASSESSMENT YEAR 2 002-2003 CLAIMING A DEDUCTION OF RS.83,69,303/- UNDER SECTION 80HHC OF THE ACT. THE ASSESSING OFFICER HELD THAT IF THE PROFIT ON TRANSFER OF THE EXPORT INCENTIVES WAS DEDUCTED FROM THE PROFITS OF THE ASSESSEE, THE F IGURE WOULD BE A LOSS AND THERE WILL BE NO POSITIVE INCOME OF THE ASSESSEE FROM ITS EXPORT BUSINESS AND THE ASSESSEE WILL NOT BE ENTITLED TO A NY DEDUCTION UNDER SECTION 80HHC OF THE ACT AS HAS BEEN HELD BY THIS COUR T IN IPCA LABORATORIES LTD. V. DEPUTY C.I.T. (2004) 266 ITR 52 1 (SC). AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND CONTENDED THAT THE PROFITS ON THE TRANSFER OF DEP B AND DFRC WERE NOT THE SALE PROCEEDS OF DEPB AND DFRC AMOUNTING TO R S.2,06,84,841/- AND RS.1,65,616/- RESPECTIVELY, BUT THE DIFFERENCE BETWEEN THE SALE VALUE AND FACE VALUE OF DEPB AND DFRC AMOUNTING TO RS.14,3 5,097/- AND RS.19,902/- RESPECTIVELY AND IF THESE FIGURES OF PRO FITS ON TRANSFER OF DEPB AND DFRC ARE TAKEN, THE INCOME OF ASSESSEE WOULD BE P OSITIVE AND THE ASSESSEE WOULD BE ENTITLED TO THE DEDUCTION UNDER SE CTION 80HHC OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) REJECT ED THIS CONTENTION OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.2,06,84,841/- ON SALE OF DEPB AND AN AMOUNT OF R S.1,65,612/- ON SALE OF DFRC AND THE COSTS OF ACQUISITION OF THE DEPB AND D FRC ARE TO BE ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 6 TAKEN AS NIL AND HENCE THE ENTIRE SALE PROCEEDS OF DE PB AND DFRC REALIZED BY THE ASSESSEE ARE TO BE TREATED AS PROFIT S ON TRANSFER OF DEPB AND DFRC FOR WORKING OUT THE DEDUCTION UNDER SECTION 80HHC OF THE ACT AND DIRECTED THE ASSESSING OFFICER TO WORK OUT THE D EDUCTION UNDER SECTION 80HHC OF THE ACT ACCORDINGLY. 4. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL (FOR SHORT THE TRIBUNAL). A SPECIAL BENCH OF THE TRIBUNAL HEARD THE APPEAL AND HELD THAT THERE WAS A DIRECT RELATION B ETWEEN THE ENTITLEMENT UNDER THE DEPB SCHEME AND THE CUSTOM DUTY COMPONENT IN THE COST OF IMPORTS USED IN THE MANUFACTURE OF THE EX PORT PRODUCT. THE TRIBUNAL FURTHER HELD THAT DEPB ACCRUES TO THE EXPORT ER SOON AFTER EXPORT IS MADE AND APPLICATION IS FILED FOR DEPB AND DEPB IS A CASH ASSISTANCE RECEIVABLE BY THE ASSESSEE AND IS COVERED UNDER CLAU SE (IIIB) OF SECTION 28 OF THE ACT, WHEREAS PROFIT ON THE TRANSFER OF DEPB TAK ES PLACE ON A SUBSEQUENT DATE WHEN THE DEPB IS SOLD BY THE ASSESSEE AND IS COVERED UNDER CLAUSE (IIID) OF SECTION 28 OF THE ACT. THE TR IBUNAL COMPARED THE LANGUAGE OF SECTION 28(IIIB) OF THE ACT IN WHICH THE E XPRESSION CASH ASSISTANCE IS USED, WITH THE LANGUAGE OF SECTION 28 (IIIA), (IIID) AND (IIIE) OF THE ACT IN WHICH THE EXPRESSION PROFIT IS USED AND HELD THAT THE WORDS PROFIT ON TRANSFER IN SECTION 28 (IIID) AND (IIIE ) OF THE ACT WOULD NOT REPRESENT THE ENTIRE SALE VALUE OF DEPB BUT THE SALE VALUE OF DEPB LESS THE FACE VALUE OF THE DEPB. WITH THESE REASONS, THE TRIBUNA L SET ASIDE THE ORDERS OF THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOME TAX (APPEALS) AND DIRECTED THE ASSESSING OFFICER TO COMP UTE THE DEDUCTION UNDER SECTION 80HHC OF THE ACT ACCORDINGLY. 5. THIS JUDGMENT OF THE SPECIAL BENCH OF THE TRIBUNAL W AS FOLLOWED BY THE TRIBUNAL IN ALL THE CASES IN APPEAL BEFORE US. AGAI NST THE JUDGMENT AND ORDERS OF THE TRIBUNAL, THE COMMISSIONER OF INCOME TA X, MUMBAI FILED APPEALS IN ALL THE CASES UNDER SECTION 260A OF THE A CT BEFORE THE HIGH COURT AND BY THE IMPUGNED ORDERS THE HIGH COURT DISPOS ED OF THE APPEALS IN TERMS OF THE JUDGMENT DELIVERED IN COMMISSIONER OF THE INCOME TAX VS. KALPATARU COLOURS AND CHEMICALS (ITA(L) 2887 OF 2009 ). IN COMMISSIONER OF THE INCOME TAX VS. KALPATARU COLOURS AND CHEMICALS (SUPRA), THE HIGH COURT FORMULATED THE FOLLOWING TWO SUBSTANTIAL QUEST IONS OF LAW: (A) WHETHER THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE ENTIRE AMOUNT RECEIVED ON THE SALE OF THE DUTY ENTITLEMENT PASSBOO K DOES NOT REPRESENT PROFITS CHARGEABLE UNDER SECTION 28(IIID) OF THE INC OME TAX ACT, 1961 AND THAT THE FACE VALUE OF THE DUTY ENTITLEMENT PASSBOOK SHALL BE DEDUCTED FROM THE SALE PROCEEDS; ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 7 (B) WHETHER THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE FACE VALUE OF THE DUTY ENTITLEMENT PASSBOOK IS CHARGEABLE TO TAX UNDER SECTION 28(IIIB) AT THE TIME OF ACCRUAL OF INCOME I.E. WHEN THE APPLICATIO N FOR DUTY ENTITLEMENT PASSBOOK IS FILED WITH THE COMPETENT AUTHO RITY PURSUANT TO THE EXPORTS MADE AND THAT THE PROFITS ON THE SALE OF DU TY ENTITLEMENT PASSBOOK REPRESENTING THE EXCESS OF THE SALE PROCEEDS OVER THE FACE VALUE IS LIABLE TO BE CONSIDERED UNDER SECTION 28(IIID) A T THE TIME OF SALE. IN ITS JUDGMENT, ON THE FIRST QUESTION OF LAW FORMUL ATED UNDER (A), THE HIGH COURT HELD THAT THE TRIBUNAL WAS NOT JUSTIFIED IN HOLDING THAT THE ENTIRE AMOUNT RECEIVED ON THE SALE OF THE DEPB DOES N OT REPRESENT PROFITS CHARGEABLE UNDER SECTION 28(IIID) OF THE ACT AND IN HO LDING THAT THE FACE VALUE OF THE DEPB SHALL BE DEDUCTED FROM THE SALE PROC EEDS OF THE DEPB. ON THE SECOND QUESTION OF LAW FORMULATED UNDER (B), THE HIGH COURT IN ITS JUDGMENT DID NOT AGREE WITH THE TRIBUNAL THAT THE FACE VALUE OF DEPB IS CHARGEABLE TO TAX AS INCOME OF THE ASSESSEE UNDER SEC TION 28(IIIB) OF THE ACT AND INSTEAD HELD THAT THE ENTIRETY OF SALE CONSID ERATION FOR TRANSFER OF DEPB WOULD FALL WITHIN THE PURVIEW OF SECTION 28(IIID ) OF THE ACT. IN SOME OF THE CASES, THE APPELLANTS FILED REVIEW PETITIONS B EFORE THE HIGH COURT, BUT THE HIGH COURT DISMISSED THE REVIEW PETITIONS. 6. LEARNED COUNSEL FOR THE APPELLANTS SUBMITTED, REL YING ON THE PROVISIONS OF THE DEPB SCHEME, THAT THE TRIBUNAL WAS RIGHT IN COMIN G TO THE CONCLUSION THAT DEPB WAS CASH 20 HTTP://WWW.ITATONLINE .ORG ASSISTANCE RECEIVABLE BY A PERSON AGAINST EXPORTS AND ACCRUED TO THE EXPORTER AS SOON AS HE FILES AN APPLICATION FOR DEPB. THEY SUBMI TTED THAT DEPB WAS THEREFORE CHARGEABLE TO INCOME TAX UNDER THE HEAD PRO FITS AND GAINS OF BUSINESS OR PROFESSION UNDER CLAUSE (IIIB) OF SECT ION 28 OF THE ACT. THEY SUBMITTED THAT THE CONTENTION OF THE REVENUE THAT DEPB WOULD BE INCOME CHARGEABLE TO TAX ONLY ON TRANSFER AND WOULD BE COVE RED UNDER CLAUSE (IIID) OF SECTION 28 OF THE ACT IS NOT CORRECT. THEY SUBMITTED THAT IT WILL BE CLEAR FROM DIFFERENT PROVISIONS OF THE DEPB SCHEME THA T THE OBJECT OF GRANTING DEPB TO AN EXPORTER IS TO NEUTRALIZE THE IN CIDENCE OF CUSTOM DUTIES WHICH HAS BEEN INCURRED ON THE IMPORT COMPONENT OF THE EXPORT PRODUCT AND THIS NEUTRALIZATION IS ACHIEVED BY GRANT OF DUTY CREDIT OF THE AMOUNT SPECIFIED IN THE DEPB SCHEME. THEY SUBMITTED T HAT THE TRIBUNAL, THEREFORE, WAS RIGHT IN COMING TO THE CONCLUSION THAT THERE WAS A DIRECT RELATION BETWEEN THE DEPB AND THE COST OF INPUTS IMP ORTED FOR MANUFACTURE OF THE EXPORT PRODUCT. 7. LEARNED COUNSEL FOR THE APPELLANTS SUBMITTED THAT SINCE DEPB WAS CASH ASSISTANCE RECEIVABLE BY A PERSON AGAINST EXPORTS A ND WAS COVERED UNDER ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 8 CLAUSE (IIIB) OF SECTION 28 OF THE ACT AND IT HAS A D IRECT RELATION WITH THE COSTS OF THE INPUTS IMPORTED BY AN EXPORTER FROM MAN UFACTURER OF THE EXPORT PRODUCT, THE DEPB CANNOT FORM PART OF THE PROF ITS ON TRANSFER OF DEPB UNDER SECTION 28(IIID) OF THE ACT. THEY ARGUED T HAT AS AND WHEN DEPB IS TRANSFERRED AND THE SALE VALUE REALIZED ON S UCH TRANSFER OF DEPB IS MORE THAN THE FACE VALUE OF THE DEPB, THE DIFFERENCE BETWEEN THE SALE VALUE AND FACE VALUE OF THE DEPB WILL CONSTITUTE PRO FIT ON TRANSFER OF DEPB AND WOULD BE COVERED UNDER CLAUSE (IIID) OF SE CTION 28 OF THE ACT. THEY ARGUED THAT IF THE INTENTION OF THE LEGISLATURE WA S TO COVER THE ENTIRE SALE PROCEEDS ARISING ON TRANSFER OF DEPB UNDER CLA USE (IIID) OF SECTION 28 OF THE ACT THEN THEY WOULD HAVE USED THE EXPRESSION S ALE PROCEEDS INSTEAD OF PROFIT ON TRANSFER OF DEPB IN CLAUSE (II ID) OF SECTION 28 OF THE ACT. 8. LEARNED COUNSEL FOR THE APPELLANTS ARGUED THAT IF THE ENTIRE SALE PROCEEDS OF THE DEPB IS TREATED AS PROFITS ARISING ON TRANSFER OF DEPB FOR THE PURPOSE OF CLAUSE (IIID) OF SECTION 28 AS CONTEN DED BY THE REVENUE, THEN THE ASSESSEE WILL BE TAXED TWICE FOR THE SAME IN COME, ONCE AS CASH ASSISTANCE UNDER CLAUSE (IIIB) OF SECTION 28 EQUIVA LENT TO THE FACE VALUE OF THE DEPB AND FOR THE SECOND TIME AS PROFIT ON TRANSF ER OF DEPB UNDER CLAUSE (IIID) OF SECTION 28, THE FACE VALUE OF THE D EPB BEING PART OF THE SALE PROCEEDS OF THE DEPB ON TRANSFER. THEY SUBMITTE D THAT AS THE LEGISLATURE COULD NOT HAVE INTENDED SUCH DOUBLE TAXA TION OF THE SAME INCOME, THE INTERPRETATION SUGGESTED BY THE REVENUE S HOULD NOT BE ACCEPTED BY THE COURT. THEY SUBMITTED THAT IN THE PRES ENT BATCH OF CASES, DEPB ACCRUED TO THE ASSESSEES IN THE FIRST YEAR WHEN T HE ASSESSEES MADE THE EXPORT AND APPLIED FOR DEPB AND THE ASSESSEE SOLD THE DEPB IN SUBSEQUENT YEAR AND THE REVENUE HAS TAKEN A STAND THAT IN THE SUBSEQUENT YEAR, THE ENTIRE SALE PROCEEDS COMPRISING BOTH THE FACE VALUE OF THE DEPB AND THE PROFITS ON TRANSFER OF DEPB ARE C OVERED UNDER SECTION 28(IIID) OF THE ACT AND THIS STAND OF THE REVENUE HAS B EEN ACCEPTED BY THE HIGH COURT IN THE IMPUGNED ORDERS ON AN INCORRECT INT ERPRETATION OF THE DEPB SCHEME AND THE PROVISIONS OF SECTION 28 OF THE A CT AND 80HHC OF THE ACT. 9. LEARNED COUNSEL FOR THE REVENUE, ON THE OTHER HAND, SUPPORTED THE IMPUGNED JUDGMENT AND ORDERS OF THE HIGH COURT AND SU BMITTED THAT PROFIT ON TRANSFER OF DEPB WOULD REPRESENT THE ENTIR E SALE VALUE REALIZED BY THE ASSESSEE ON TRANSFER OF THE DEPB. HE SUBMITTED THAT THE HIGH COURT HAS RIGHTLY HELD THAT THE ASSESSEE DOES NOT INCUR ANY C OST IN OBTAINING THE DEPB. HE ARGUED THAT DEPB IS AN EXPORT INCENTIVE GRA NTED BY THE GOVERNMENT UNDER DEPB SCHEME AND IT HAS NO DIRECT REL ATION WITH THE ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 9 COST OF PURCHASES MADE BY THE ASSESSEE AND THEREFORE T HE ASSESSEE IS NOT ENTITLED TO DEDUCT THE FACE VALUE OF THE DEPB FROM THE SALE PROCEEDS FOR DETERMINING THE PROFIT ARISING ON TRANSFER OF DEPB A ND THE ENTIRE SALE PROCEEDS OF THE DEPB REPRESENT THE PROFITS EARNED BY THE ASSESSEE ON TRANSFER OF THE DEPB. HE ARGUED THAT THE FINDINGS OF THE TRIBUNAL THAT THERE IS A DIRECT RELATION BETWEEN DEPB AND THE COSTS INCURRED BY THE ASSESSEE FOR IMPORTING INPUTS FOR MANUFACTURE OF EX PORT PRODUCTS IS, THEREFORE, NOT CORRECT AND THE HIGH COURT WAS RIGHT IN SETTING ASIDE THE FINDINGS OF THE TRIBUNAL AND IN COMING TO THE CONCLUS ION THAT THE ENTIRE SALE PROCEEDS OF DEPB REPRESENT THE PROFITS ON TRANS FER OF DEPB WITHIN THE MEANING OF CLAUSE (IIID) OF SECTION 28 OF THE ACT . 10. FOR APPRECIATING THE NATURE OF THE DEPB, PARAGRAP HS 4.37 AND 4.42 OF THE HAND BOOK ON DEPB ISSUED BY THE GOVERNMENT OF IND IA AND PARAGRAPHS 7.14, 7.15, 7.16 AND 7.38 OF THE EXPORT A ND IMPORT POLICY, 1997-2002 AS NOTIFIED BY THE CENTRAL GOVERNMENT IN T HE NOTIFICATION NO.1(RE-99)/ 1997-2202 DATED 31ST MARCH, 2000 ARE EX TRACTED HEREINBELOW: HAND BOOK ON DEPB 4.37 DUTY ENTITLEMENT PASSBOOK SCHEME (DEPB) THE POL ICY RELATING TO DUTY ENTITLEMENT PASSBOOK (DEPB) SCHEME IS GIVEN IN CHAPTE R- 4 OF THE POLICY. THE DUTY CREDIT UNDER THE SCHEME SHALL BE CALCULATED BY TAKING INTO ACCOUNT THE DEEMED IMPORT CONTENT OF THE SAID EXPORT PRODUCT AS PER SIO N AND THE BASIC CUSTOM DUTY PAYABLE ON SUCH DEEMED IMPORTS. THE VALUE ADDITION AC HIEVED BY EXPORT OF SUCH PRODUCT SHALL ALSO BE TAKEN INTO ACCOUNT WHILE DETER MINING THE RATE OF DUTY CREDIT UNDER THE SCHEME. 4.42 UTILIZATION OF DEPB CREDIT. THE CREDIT UNDER DE PB SHALL BE UTILIZED FOR PAYMENT OF CUSTOMS DUTY ON ANY ITEM WHICH IS FREELY I MPORTABLE. EXPORT AND IMPORT POLICY, 1997-2002 7.14 FOR EXPORTERS NOT DESIROUS OF GOING THROUGH TH E LICENSING ROUTE, AN OPTIONAL FACILITY IS GIVEN UNDER DEPB. THE OBJECTIV E OF DUTY ENTITLEMENT PASSBOOK SCHEME IS TO NEUTRALIZE THE INCIDENCE OF C USTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PRODUCT. THE NEUTRALIZATION S HALL BE PROVIDED BY WAY OF GRANT OF DUTY CREDIT AGAINST THE EXPORT PRODUCT. UNDER THE DUTY ENTITLEMENT PASSBOOK SCHEME (DEPB), AN EXPORTER MAY SUPPLY FOR CREDIT, AS A SPECIFIED PERCENTAGE OF FOB VALUE OF EXPORTS, MADE IN FREELY CONVERTIBLE CURRENCY. THE CREDIT SHALL BE AV AILABLE AGAINST SUCH EXPORT ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 10 PRODUCTS AND AT SUCH RATES AS MAY BE SPECIFIED BY T HE DIRECTOR GENERAL OF FOREIGN TRADE BY WAY OF PUBLIC NOTICE ISSUED IN THI S BEHALF, FOR IMPORT OF RAW MATERIALS, INTERMEDIATES, COMPONENTS, PARTS PACKING MATERIAL ETC. THE HOLDER OF DUTY ENTITLEMENT PASSBOOK SCHEME (DEP B) SHALL HAVE THE OPTION TO PAY ADDITIONAL CUSTOMS DUTY, IF ANY, IN C ASH AS WELL. VALIDITY 7.15. THE DEPB SHALL BE VALID FOR A PERIOD OF 12 MO NTHS FROM THE DATE OF ISSUE. 7.16 THE DEPB AND/OR THE ITEMS IMPORTED AGAINST IT ARE FREELY TRANSFERABLE. THE TRANSFER OF DEPB SHALL HOWEVER BE FOR IMPORT AT THE PORT SPECIFIED IN THE DEPB WHICH SHALL BE THE PORT FROM WHERE EXPORTS HAV E BEEN MADE. HOWEVER, IMPORTS FROM A PORT OTHER THAN THE PORT OF EXPORT S HALL BE ALLOWED UNDER TRA FACILITY AS PER THE TERMS AND CONDITIONS OF THE NOT IFICATION ISSUED BY DEPARTMENT OF REVENUE. 7.38 (I) AN APPLICATION FOR GRANT OF CREDIT UNDER D EPB MAY BE MADE TO THE LICENSING AUTHORITY CONCERNED IN THE FORM GIVEN IN APPENDIX-11C ALONGWITH THE DOCUMENTS PRESCRIBED THEREIN. THE PROVISIONS OF PARAGRAPHS 7.2 SHALL BE APPLICABLE FOR DEPB ALSO. THE FOB VALUE IN FREE FOR EIGN EXCHANGE SHALL BE CONVERTED INTO INDIAN RUPEES AS PER THE AUTHORIZED DEALERS T/T BUYING RATE, PREVALENT ON THE DATE OF NEGOTIATION/PURCHASE/COLLE CTION OF DOCUMENT. THE DEPB RATE OF CREDIT SHALL BE APPLIED ON THE FOB VAL UE SO ARRIVED. IN CASE OF ADVANCE PAYMENT, THE FOB VALUE IN FREE FOREIGN EXCH ANGE SHALL BE CONVERTED INTO INDIAN RUPEES AS PER THE AUTHORIZED DEALERS T /T BUYING RATE, PREVALENT ON THE DATE OF RECEIPT OF ADVANCE PAYMENT. (II) THE DEPB SHALL BE INITIALLY ISSUED WITH NON TR ANSFERABLE ENDORSEMENT IN SUCH CASES WHERE REALIZATION HAS NOT TAKEN PLACE TO ENABLE THE EXPORTER TO EFFECT IMPORT FOR HIS OWN USE. HOWEVER, UPON RECEIP T OF REALIZATION, THE DEPB SHALL BE ENDORSED TRANSFERABLE. IN SUCH CASES WHERE THE APPLICANT APPLIES FOR DEPB AFTER REALIZATION, THE DEPB SHALL BE ISSUED WI TH TRANSFERABLE ENDORSEMENT. ON A READING OF THE AFORESAID PARAGRAPHS OF THE HAN D BOOK ON DEPB AND THE EXPORT AND IMPORT POLICY OF THE GOVERNMENT OF I NDIA, 1997-2002, IT IS CLEAR THAT THE OBJECTIVE OF DEPB SCHEME IS TO NEUTR ALIZE THE INCIDENCE OF CUSTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PR ODUCTS. HENCE, IT HAS DIRECT NEXUS WITH THE COST OF THE IMPORTS MADE BY A N EXPORTER FOR MANUFACTURING THE EXPORT PRODUCTS. THE NEUTRALIZATI ON OF THE COST OF CUSTOMS DUTY UNDER THE DEPB SCHEME, HOWEVER, IS BY GRANTING A DUTY CREDIT AGAINST THE EXPORT PRODUCT AND THIS CREDIT CAN BE UTILIZED FOR PAYING CUSTOMS DUTY ON ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 11 ANY ITEM WHICH IS FREELY IMPORTABLE. DEPB IS ISSUED AGAINST THE EXPORTS TO THE EXPORTER AND IS TRANSFERABLE BY THE EXPORTER. 11. WE MAY NOW CONSIDER THE RELEVANT PROVISIONS OF SECTION 28 FOR DETERMINING WHETHER DEPB WILL FALL UNDER CLAUSE (II IB) OR UNDER CLAUSE (IIID) OF SECTION 28. THE RELEVANT PROVISIONS OF SECTION 2 8 OF THE ACT ARE REPRODUCED HEREUNDER: SECTION 28. PROFITS AND GAINS OF BUSINESS OR PROFES SION .THE FOLLOWING INCOME SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION,-- . (IIIA) PROFITS ON SALE OF A LICENCE GRANTED UNDER T HE IMPORTS (CONTROL) ORDER, 1955, MADE UNDER THE IMPORTS AND EXPORTS (CONTROL)A CT, 1947 (18 OF 1947); (IIIB) CASH ASSISTANCE (BY WHATEVER NAME CALLED) RE CEIVED OR RECEIVABLE BY ANY PERSON AGAINST EXPORTS UNDER ANY SCHEME OF THE GOVERNMENT OF INDIA;] (IIIC) (IIID) ANY PROFIT ON THE TRANSFER OF THE DUTY ENTIT LEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME UNDER THE EXPORT AN D IMPORT POLICY FORMULATED AND ANNOUNCED UNDER SECTION 5 OF THE FOR EIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 (22 OF 1992) (IIIE) ANY PROFIT ON THE TRANSFER OF THE DUTY FREE REPLENISHMENT CERTIFICATE, BEING THE DUTY REMISSION SCHEME UNDER THE EXPORT AN D IMPORT POLICY FORMULATED AND ANNOUNCED UNDER SECTION 5 OF THE FOR EIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 (22 OF 1992) . 12. IT WILL BE CLEAR FROM THE AFORESAID PROVISIONS OF SECTION 28 THAT UNDER CLAUSE (IIIB) CASH ASSISTANCE (BY WHATEVER NAME CAL LED) RECEIVED OR RECEIVABLE BY ANY PERSON AGAINST EXPORTS UNDER ANY SCHEME OF THE GOVERNMENT OF INDIA IS BY ITSELF INCOME CHARGEABLE TO INCOME TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. DEPB IS A KIND OF ASSISTANCE GIVEN BY THE GOVERNMENT OF INDIA TO AN E XPORTER TO PAY CUSTOMS DUTY ON ITS IMPORTS AND IT IS RECEIVABLE ONCE EXPOR TS ARE MADE AND AN APPLICATION IS MADE BY THE EXPORTER FOR DEPB. WE HA VE, THEREFORE, NO DOUBT THAT DEPB IS CASH ASSISTANCE RECEIVABLE BY A PERS ON AGAINST EXPORTS UNDER THE SCHEME OF THE GOVERNMENT OF INDIA AND FALLS UND ER CLAUSE (IIIB) OF SECTION 28 AND IS CHARGEABLE TO INCOME TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION EVEN BEFORE IT IS TRANSFERR ED BY THE ASSESSEE. ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 12 13. UNDER CLAUSE (IIID) OF SECTION 28, ANY PROFIT O N TRANSFER OF DEPB IS CHARGEABLE TO INCOME TAX UNDER THE HEAD PROFITS AN D GAINS OF BUSINESS OR PROFESSION AS AN ITEM SEPARATE FROM CASH ASSISTANC E UNDER CLAUSE (IIIB). THE WORD PROFIT MEANS THE GROSS PROCEEDS OF A BUSINES S TRANSACTION LESS THE COSTS OF THE TRANSACTION. TO QUOTE FROM BLACKS LAW DICTIONARY (FIFTH EDITION): PROFIT . MOST COMMONLY, THE GROSS PROCEEDS OF A BUSINESS T RANSACTION LESS THE COSTS OF THE TRANSACTION, I.E. NET PROCEEDS. EXCESS OF REVENUES OVER EXPENSES FOR A TRANSACTION; SOMETIMES USED SYNONYMOUSLY WITH NET INCOME FOR THE PERIOD. GAIN REALIZED FROM BUSINESS OR INVESTMENT O VER AND ABOVE EXPENDITURES. THIS COURT IN E.D. SASSOON & COMPANY LTD. AND OTHER S V. COMMISSIONER OF INCOME-TAX, BOMBAY CITY (1954) 26 ITR 27 (SC) HAS Q UOTED THE FOLLOWING OBSERVATIONS OF LORD JUSTICE FLETCHER MOULTON IN TH E SPANISH PROSPECTING COMPANY LIMITED [(1911) I CH. 92] ON THE MEANING OF THE WORD PROFITS: . PROFITS IMPLIES A COMPARISON BETWEEN THE STA TE OF A BUSINESS AT TWO SPECIFIC DATES USUALLY SEPARATED BY AN INTERVAL OF A YEAR. THE FUNDAMENTAL MEANING IS THE AMOUNT OF GAIN MADE BY THE BUSINESS DURING THE YEAR. THIS CAN ONLY BE ASCERTAINED BY A COMPARISON OF THE ASSETS O F THE BUSINESS AT THE TWO DATES. PROFITS, THEREFORE, IMPLY A COMPARISON OF THE VAL UE OF AN ASSET WHEN THE ASSET IS ACQUIRED WITH THE VALUE OF THE ASSET WHEN THE ASSET IS TRANSFERRED AND THE DIFFERENCE BETWEEN THE TWO VALUES IS THE AMOUNT OF PROFIT OR GAIN MADE BY A PERSON. AS DEPB HAS DIRECT NEXUS WITH THE COST OF IMPORTS FOR MANUFACTURING AN EXPORT PRODUCT, ANY AMOUNT REALIZE D BY THE ASSESSEES OVER AND ABOVE THE DEPB ON TRANSFER OF THE DEPB WOULD RE PRESENT PROFIT ON THE TRANSFER OF DEPB. 14. WE ARE, THUS, OF THE CONSIDERED OPINION THAT WH ILE THE FACE VALUE OF THE DEPB WILL FALL UNDER CLAUSE (IIIB) OF SECTION 28 OF THE ACT, THE DIFFERENCE BETWEEN THE SALE VALUE AND THE FACE VALUE OF THE DE PB WILL FALL UNDER CLAUSE (IIID) OF SECTION 28 OF THE ACT AND THE HIGH COURT WAS NOT RIGHT IN TAKING THE VIEW IN THE IMPUGNED JUDGMENT THAT THE ENTIRE SALE PROCEEDS OF THE DEPB REALIZED ON TRANSFER OF THE DEPB AND NOT JUST THE D IFFERENCE BETWEEN THE SALE VALUE AND THE FACE VALUE OF THE DEPB REPRESENT PROF IT ON TRANSFER OF THE DEPB. 15. WE MAY NOW POINT OUT THE ERRORS IN THE IMPUGNED JUDGMENT OF THE HIGH COURT. THE FIRST REASON GIVEN BY THE HIGH COURT IS THAT CLAUSE (IIIA) OF SECTION 28 TREATS PROFITS ON THE SALE OF AN IMPORT LICENSE AS INCOME CHARGEABLE TO TAX ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 13 AND WHEN THE LICENSE IS SOLD, THE ENTIRE AMOUNT IS TREATED AS PROFITS OF BUSINESS UNDER CLAUSE (IIIA) OF SECTION 28 AND THUS THERE IS NO JUSTIFICATION TO TREAT THE AMOUNT WHICH IS RECEIVED BY AN EXPORTER O N THE TRANSFER OF THE DEPB ANY DIFFERENTLY THAN THE PROFITS WHICH ARE MAD E ON THE SALE OF AN IMPORT LICENSE UNDER CLAUSE (IIIA) OF SECTION 28 OF THE ACT. IN TAKING THE VIEW THAT WHEN THE IMPORT LICENSE IS SOLD THE ENTIRE AMO UNT IS TREATED AS PROFITS OF BUSINESS, THE HIGH COURT HAS VISUALIZED A SITUATION WHERE THE COST OF ACQUIRING THE IMPORT LICENSE IS NIL. THE COST OF AC QUIRING DEPB, ON THE OTHER HAND, IS NOT NIL BECAUSE THE PERSON ACQUIRES IT BY PAYING CUSTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PRODUCT AND THE DEPB W HICH ACCRUES TO A PERSON AGAINST EXPORTS HAS A COST ELEMENT IN IT. AC CORDINGLY, WHEN DEPB IS SOLD BY A PERSON, HIS PROFIT ON TRANSFER OF DEPB WO ULD BE THE SALE VALUE OF THE DEPB LESS THE FACE VALUE OF DEPB WHICH REPRESEN TS THE COST OF THE DEPB. THE SECOND REASON GIVEN BY THE HIGH COURT IN THE IMPUGNED JUDGMENT IS THAT UNDER THE DEPB SCHEME, DEPB IS GIVEN AT A P ERCENTAGE OF THE FOB VALUE OF THE EXPORTS SO AS TO NEUTRALIZE THE INCIDE NCE OF CUSTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PRODUCTS, BUT THE EXPO RTER MAY NOT HIMSELF UTILIZE THE DEPB FOR PAYING CUSTOMS DUTY BUT MAY TRANSFER I T TO SOMEONE ELSE AND THEREFORE THE ENTIRE SUM RECEIVED ON TRANSFER OF DE PB WOULD BE COVERED UNDER CLAUSE (IIID) OF SECTION 28. THE HIGH COURT H AS FAILED TO APPRECIATE THAT DEPB REPRESENTS PART OF THE COST INCURRED BY A PERS ON FOR MANUFACTURE OF THE EXPORT PRODUCT AND HENCE EVEN WHERE THE DEPB IS NOT UTILIZED BY THE EXPORTER BUT IS TRANSFERRED TO ANOTHER PERSON, THE DEPB CONT INUES TO REMAIN AS A COST TO THE EXPORTER. WHEN, THEREFORE, DEPB IS TRANSFERR ED BY A PERSON, THE ENTIRE SUM RECEIVED BY HIM ON SUCH TRANSFER DOES NOT BECOM E HIS PROFITS. IT IS ONLY THE AMOUNT THAT HE RECEIVES IN EXCESS OF THE DEPB W HICH REPRESENTS HIS PROFITS ON TRANSFER OF THE DEPB. 16. THE HIGH COURT HAS SOUGHT TO MEET THE ARGUMENT OF DOUBLE TAXATION MADE ON BEHALF OF THE ASSESSEES BY HOLDING THAT WHERE TH E FACE VALUE OF THE DEPB WAS OFFERED TO TAX IN THE YEAR IN WHICH THE CREDIT ACCRUED TO THE ASSESSEE AS BUSINESS PROFITS, THEN ANY FURTHER PROFIT ARISING O N TRANSFER OF DEPB WOULD BE TAXED AS PROFITS OF BUSINESS UNDER SECTION 28(IIID) IN THE YEAR IN WHICH THE TRANSFER OF DEPB TOOK PLACE. THIS VIEW OF THE HIGH COURT, IN OUR CONSIDERED OPINION, IS CONTRARY TO THE LANGUAGE OF SECTION 28 OF THE ACT UNDER WHICH CASH ASSISTANCE RECEIVED OR RECEIVABLE BY ANY PER SON AGAINST EXPORTS SUCH AS THE DEPB AND PROFIT ON TRANSFER OF THE DEPB AR E TREATED AS TWO SEPARATE ITEMS OF INCOME UNDER CLAUSES (IIIB) AND ( IIID) OF SECTION 28. IF ACCRUAL OF DEPB AND PROFIT ON TRANSFER OF DEPB ARE TREATED AS TWO SEPARATE ITEMS OF INCOME CHARGEABLE TO TAX UNDER CLAUSES (II IB) AND (IIID) OF SECTION 28 OF THE ACT, THEN DEPB WILL BE CHARGEABLE AS INCOME UNDER CLAUSE (IIIB) OF SECTION 28 IN THE YEAR IN WHICH THE PERSON APPLIES FOR DEPB CREDIT AGAINST ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 14 THE EXPORTS AND THE PROFIT ON TRANSFER OF THE DEPB BY THAT PERSON WILL BE CHARGEABLE AS INCOME UNDER CLAUSE (IIID) OF SECTION 28 IN HIS HANDS IN THE YEAR IN WHICH HE MAKES THE TRANSFER. ACCORDINGLY, I F IN THE SAME PREVIOUS YEAR THE DEPB ACCRUES TO A PERSON AND HE ALSO EARNS PROF IT ON TRANSFER OF THE DEPB, THE DEPB WILL BE BUSINESS PROFITS UNDER CLAUS E (IIIB) AND THE DIFFERENCE BETWEEN THE SALE VALUE AND THE DEPB (FAC E VALUE) WOULD BE THE PROFITS ON THE TRANSFER OF DEPB UNDER CLAUSE (IIID) FOR THE SAME ASSESSMENT YEAR. WHERE, HOWEVER, THE DEPB ACCRUES TO A PERSON IN ONE PREVIOUS YEAR AND THE TRANSFER OF DEPB TAKES PLACE IN A SUBSEQUEN T PREVIOUS YEAR, THEN THE DEPB WILL BE CHARGEABLE AS INCOME OF THE PERSON FOR THE FIRST ASSESSMENT YEAR CHARGEABLE UNDER CLAUSE (IIIB) OF SECTION 28 A ND THE DIFFERENCE BETWEEN THE DEPB CREDIT AND THE SALE VALUE OF THE DEPB CRED IT WOULD BE INCOME IN HIS HANDS FOR THE SUBSEQUENT ASSESSMENT YEAR CHARGE ABLE UNDER CLAUSE (IIID) OF SECTION 28. THE INTERPRETATION SUGGESTED BY US, THEREFORE, DOES NOT LEAD TO DOUBLE TAXATION OF THE SAME INCOME, WHICH THE LEGIS LATURE MUST BE PRESUMED TO HAVE AVOIDED. 17. THE HIGH COURT HAS HELD THAT AS THE ASSESSEES H AD AN EXPORT TURNOVER EXCEEDING RS.10 CRORES AND DID NOT FULFILL THE COND ITIONS SET OUT IN THE THIRD PROVISO TO SECTION 80HHC(3) OF THE ACT, THE ASSESSE ES WERE NOT ENTITLED TO A DEDUCTION UNDER SECTION 80HHC ON THE AMOUNT RECEIVE D ON TRANSFER OF DEPB AND TO GET OVER THIS DIFFICULTY THE ASSESSEES HAVE CONTENDED THAT THE PROFITS ON TRANSFER OF DEPB IN SECTION 28(IIID) WOULD NOT INCL UDE THE FACE VALUE OF THE DEPB SO THAT THE ASSESSEES GET A DEDUCTION UNDER SE CTION 80HHC ON THE FACE VALUE OF THE DEPB. THIS FINDING OF THE HIGH COURT I S NOT BASED ON AN ACCURATE UNDERSTANDING SCHEME OF SECTION 80HHC OF T HE ACT. 18. THE RELEVANT PROVISIONS OF SECTION 80HHC ARE QU OTED HEREINBELOW: SECTION 80HHC- DEDUCTION IN RESPECT OF PROFITS RET AINED FOR EXPORT BUSINESS.-- [(1) WHERE AN ASSESSEE, BEING AN INDIAN COMPANY OR A PERSON (OTHER THAN A COMPANY) RESIDENT IN INDIA, IS ENGAGE D IN THE BUSINESS OF EXPORT OUT OF INDIA OF ANY GOODS OR MERCHANDISE TO WHICH T HIS SECTION APPLIES, THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVIS IONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSES SEE, [A DEDUCTION TO THE EXTENT OF PROFITS, REFERRED TO IN SUB-SECTION (1B), ] DERIVED BY THE ASSESSEE FROM THE EXPORT OF SUCH GOODS OR MERCHANDISE: . (1B) FOR THE PURPOSES OF SUB-SECTIONS (1) AND (1A), THE EXTENT OF DEDUCTION OF THE PROFITS SHALL BE AN AMOUNT EQUAL TO ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 15 (I) EIGHTY PER CENT THEREOF FOR AN ASSESSMENT YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2001; (II) SEVENTY PER CENT THEREOF FOR AN ASSESSMENT YEA R BEGINNING ON THE 1ST DAY OF APRIL, 2002; (III) FIFTY PER CENT THEREOF FOR AN ASSESSMENT YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2003; (IV) THIRTY PER CENT THEREOF FOR AN ASSESSMENT YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2004,] AND NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF THE ASSESSMENT YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2005 AND ANY SUB SEQUENT ASSESSMENT YEAR.] . (3) FOR THE PURPOSES OF SUB-SECTION (1), (A) WHERE THE EXPORT OUT OF INDIA IS OF GOODS OR ME RCHANDISE MANUFACTURED [OR PROCESSED] BY THE ASSESSEE, THE PROFITS DERIVED FROM SUCH EXPORT SHALL BE THE AMOUNT WHICH BEARS TO THE PROFITS OF THE BUSINE SS, THE SAME PROPORTION AS THE EXPORT TURNOVER IN RESPECT OF SUCH GOODS BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE; . PROVIDED THAT THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF THIS SUB-SECTION SHALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINETY PER CENT OF ANY SUM REFERRED TO IN CLAUSE (I IIA) (NOT BEING PROFITS ON SALE OF A LICENCE ACQUIRED FROM ANY OTHER PERSON), AND CLAUSES (IIIB) AND (IIIC) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TU RNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE : PROVIDED FURTHER THAT IN THE CASE OF AN ASSEESEE HA VING EXPORT TURNOVER NOT EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEA R, THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF THI S SUB-SECTION OR AFTER GIVING EFFECT TO THE FIRST PROVISO, AS THE CASE MAY BE, SH ALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINETY PER CENT OF ANY SUM RE FERRED TO IN CLAUSE (IIID) OR CLAUSE (IIIE), AS THE CASE MAY BE, OF SECTION 28 , THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE; PROVIDED ALSO THAT IN THE CASE OF AN ASSESSEE HAVIN G EXPORT TURNOVER EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEA R, THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF THI S SUB-SECTION OR AFTER GIVING ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 16 EFFECT TO THE FIRST PROVISO, AS THE CASE MAY BE, SH ALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINETY PER CENT OF ANY SUM RE FERRED TO IN CLAUSE (IIID) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TU RNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE , IF THE ASSESSEE HAS NECESSARY AND SUFFICIENT EVIDENCE TO PROVE THAT, ( A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAWBACK OR THE DUTY ENTITLE MENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME; AND (B) THE RATE O F DRAWBACK CREDIT ATTRIBUTABLE TO THE CUSTOMS DUTY WAS HIGHER THAN TH E RATE OF CREDIT ALLOWABLE UNDER THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME. PROVIDED ALSO THAT IN THE CASE OF AN ASSESSEE HAVIN G EXPORT TURNOVER EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEA R, THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF THI S SUB-SECTION OR AFTER GIVING EFFECT TO THE FIRST PROVISO, AS THE CASE MAY BE, SH ALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINETY PER CENT OF ANY SUM RE FERRED TO IN CLAUSE (IIIE) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TU RNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE , IF THE ASSESSEE HAS NECESSARY AND SUFFICIENT EVIDENCE TO PROVE THAT (A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAW BACK OR THE DUTY FREE REPLENISHMENT CERTIFICATE, BEING THE DUTY REMISSION SCHEME; AND (B) THE RATE OF DRAWBACK CREDIT ATTRIBUTABLE TO THE CUSTOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWABLE UNDER THE DUTY FR EE REPLENISHMENT CERTIFICATE, BEING THE DUTY REMISSION SCHEME. EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, RATE OF CREDIT ALLOWABLE MEANS THE RATE OF CREDIT ALLOWABLE UNDER THE DUTY F REE REPLENISHMENT CERTIFICATE, BEING THE DUTY REMISSION SCHEME CALCUL ATED IN THE MANNER AS MAY BE NOTIFIED BY THE CENTRAL GOVERNMENT:] . EXPLANATION:- FOR THE PURPOSES OF THIS SECTION,- (B AA) PROFITS OF THE BUSINESS MEANS THE PROFITS OF THE BUSINESS AS COMPUTED UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION AS REDUCED BY- (1) NINETY PER CENT OF ANY SUM REFERRED TO IN CLAUSES (IIIA), (IIIB), (IIIC), (III D) AND (IIIE) OF SECTION 28 OR OF ANY RECEIPTS BY WAY OF BROKERAGE, COMMISSION, INTER EST, RENT, CHARGES OR ANY OTHER RECEIPT OF A SIMILAR NATURE INCLUDED IN SUCH PROFITS; AND (2) THE PROFITS OF ANY BRANCH, OFFICE, WAREHOUSE OR ANY OTHER ESTAB LISHMENT OF THE ASSESSEE SITUATE OUTSIDE INDIA 19. SUB-SECTION (1) OF SECTION 80HHC QUOTED ABOVE M AKES IT CLEAR THAT AN ASSESSEE ENGAGED IN THE BUSINESS OF EXPORT OUT OF I NDIA OF ANY GOODS OR ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 17 MERCHANDISE TO WHICH THIS SECTION APPLIES SHALL BE ALLOWED, IN COMPUTING HIS TOTAL INCOME, A DEDUCTION TO THE EXTENT OF PROFITS REFERRED TO IN SUB-SECTION (1B), DERIVED BY HIM FROM THE EXPORT OF SUCH GOODS OR MERCHANDISE. SUB- SECTION (1B) OF SECTION 80HHC GIVES THE PERCENTAGES OF DEDUCTION OF THE PROFITS ALLOWABLE FOR THE DIFFERENT ASSESSMENT YEAR S FROM THE ASSESSMENT YEARS 2001-2002 TO 2004-2005. SUB-SECTION (3)(A) OF SECTI ON 80HHC PROVIDES THAT WHERE THE EXPORT OUT OF INDIA IS OF GOODS OR MERCHA NDISE MANUFACTURED OR PROCESSED BY THE ASSESSEE, THE PROFITS DERIVED FROM SUCH EXPORTS SHALL BE THE AMOUNT WHICH BEARS TO THE PROFITS OF THE BUSINESS, THE SAME PROPORTION AS THE EXPORT TURNOVER IN RESPECT OF SUCH GOODS BEARS TO T HE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE. IN COMMISSIONE R OF INCOME-TAX V. K. RAVINDRANATHAN NAIR (2007) 295 ITR 228 (SC), THE FO RMULA IN SUB-SECTION (3)(A) OF SECTION 80HHC WAS STATED BY THIS COURT TO BE AS FOLLOWS: PROFITS DERIVED = PROFITS OF THE BUSIN ESS X EXPORT TURNOVER FROM EXPORTS FROM EXPORT TOTAL TURNOVER 20. EXPLANATION (BAA) UNDER SECTION 80HHC STATES THA T PROFITS OF THE BUSINESS IN THE AFORESAID FORMULA MEANS THE PROFITS OF THE BUSINESS AS COMPUTED UNDER THE HEAD PROFITS AND GAINS OF BUSINE SS OR PROFESSION AS REDUCED BY (1) NINETY PER CENT OF ANY SUM REFERRED TO IN CLAUSES (IIIA), (IIIB), (IIIC), (IIID) AND (IIIE) OF SECTION 28 OR OF ANY RECEIPTS BY WAY OF BROKERAGE, COMMISSION, INTEREST, RENT, CHARGES OR AN Y OTHER RECEIPT OF SIMILAR NATURE INCLUDING ANY SUCH RECEIPTS AND (2) T HE PROFITS OF ANY BRANCH, OFFICE, WAREHOUSE OR ANY OTHER ESTABLISHMENT O F THE ASSESSEE SITUATED OUTSIDE INDIA. THUS, NINETY PER CENT OF THE DEPB WHICH IS CASH ASSISTANCE AGAINST EXPORTS AND IS COVERED UNDER CL AUSE (IIIB) OF SECTION 28 WILL GET EXCLUDED FROM THE PROFITS OF THE BUSINES S OF THE ASSESSEE IF SUCH DEPB HAS ACCRUED TO THE ASSESSEE DURING THE PREVI OUS YEAR. SIMILARLY, IF DURING THE SAME PREVIOUS YEAR, THE ASSESSEE HAS TRA NSFERRED THE DEPB AND THE SALE VALUE OF SUCH DEPB IS MORE THAN THE FACE VALUE OF THE DEPB, THE DIFFERENCE BETWEEN THE SALE VALUE OF THE DEPB AND THE FACE VALUE OF THE DEPB WILL REPRESENT THE PROFIT ON TRANSFER OF DEP B COVERED UNDER CLAUSE (IIID) OF SECTION 28 AND NINETY PER CENT OF SUCH PROFIT ON TRANSFER OF DEPB CERTIFICATE WILL GET EXCLUDED FROM PROFITS OF THE BUSINESS. BUT, WHERE THE DEPB ACCRUES TO THE ASSESSEE IN THE FIRST PR EVIOUS YEAR AND THE ASSESSEE TRANSFERS THE DEPB CERTIFICATE IN THE SECOND PREVIOUS YEAR, AS APPEARS TO HAVE HAPPENED IN THE PRESENT BATCH OF CASES , ONLY NINETY PER CENT OF THE PROFITS ON TRANSFER OF DEPB COVERED UNDE R CLAUSE (IIID) AND NOT NINETY PER CENT OF THE ENTIRE SALE VALUE INCLUDING THE FACE VALUE OF THE DEPB WILL GET EXCLUDED FROM THE PROFITS OF THE BUSI NESS. THUS, WHERE THE NINETY PER CENT OF THE FACE VALUE OF THE DEPB DOES N OT GET EXCLUDED FROM ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 18 PROFITS OF THE BUSINESS UNDER EXPLANATION (BAA) AN D ONLY NINETY PER CENT OF THE DIFFERENCE BETWEEN THE FACE VALUE OF THE DEPB AND THE SALE VALUE OF THE DEPB GETS EXCLUDED FROM PROFITS OF THE BUSINESS , THE ASSESSEE GETS A BIGGER FIGURE OF PROFITS OF THE BUSINESS AND THIS I S POSSIBLE WHEN THE DEPB ACCRUES TO THE ASSESSEE IN ONE PREVIOUS YEAR A ND TRANSFER OF THE DEPB TAKES PLACE IN THE SUBSEQUENT PREVIOUS YEAR. THE RESULT IN SUCH CASE IS THAT A HIGHER FIGURE OF PROFITS OF THE BUSINESS B ECOMES THE MULTIPLIER IN THE AFORESAID FORMULA UNDER SUBSECTION (3)(A) OF SECTION 80HHC FOR ARRIVING AT THE FIGURE OF PROFITS DERIVED FROM EXPO RTS. 21. TO THE FIGURE OF PROFITS DERIVED FROM EXPORTS WO RKED OUT AS PER THE AFORESAID FORMULA UNDER SUB-SECTION (3)(A) OF SECTI ON 80HHC, THE ADDITIONS AS MENTIONED IN FIRST, SECOND, THIRD AND F OURTH PROVISO UNDER SUB-SECTION (3) ARE MADE TO PROFITS DERIVED FROM EX PORTS. UNDER THE FIRST PROVISO, NINETY PER CENT OF THE SUM REFERRED TO IN C LAUSES (IIIA), (IIIB) AND (IIIC) OF SECTION 28 ARE ADDED IN THE SAME PROPORTIO N AS EXPORT TURNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE. IN THIS FIRST PROVISO, THERE IS NO ADDITION OF ANY SUM R EFERRED TO IN CLAUSE (IIID) OR CLAUSE (IIIE). HENCE, PROFIT ON TRANSFER OF DEPB OR DFRC ARE NOT TO BE ADDED UNDER THE FIRST PROVISO. WHERE THEREFORE IN THE PREVIOUS YEAR NO DEPB OR DFRC ACCRUES TO THE ASSESSEE, HE WOULD NOT BE ENTITLED TO THE BENEFIT OF THE FIRST PROVISO TO SUB-SECTION (3) OF SECTION 80HHC BECAUSE HE WOULD NOT HAVE ANY SUM REFERRED TO IN CLAUSE (IIIB) OF SECTION 28 OF THE ACT. THE SECOND PROVISO TO SUB-SECTION (3) OF SECTIO N 80HHC STATES THAT IN CASE OF AN ASSESSEE HAVING EXPORT TURNOVER NOT EXCEE DING RS.10 CRORES DURING THE PREVIOUS YEAR, AFTER GIVING EFFECT TO THE FIRST PROVISO, THE EXPORT PROFITS ARE TO BE INCREASED FURTHER BY THE AMOUNT WHIC H BEARS TO NINETY PER CENT OF ANY SUM REFERRED TO IN CLAUSES (IIID) A ND (IIIE) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE T OTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE. THE THIRD PROVISO TO SUB-SECTION (3) STATES THAT IN CASE OF AN ASSESSEE HAVING EXPORT TUR NOVER EXCEEDING RS.10 CRORES, SIMILAR ADDITION OF NINETY PER CENT OF THE SUMS REFERRED TO IN CLAUSE (IIID) OF SECTION 28 ONLY IF THE ASSESSEE HAS THE NECE SSARY AND SUFFICIENT EVIDENCE TO PROVE THAT (A) HE HAD AN OPTION TO CHOOSE E ITHER THE DUTY DRAWBACK OR THE DUTY ENTITLEMENT PASS BOOK SCHEME, BE ING THE DUTY REMISSION SCHEME; AND (B) THE RATE OF DRAWBACK CREDIT ATTRIBUTABLE TO THE CUSTOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWAB LE UNDER THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME. THEREFORE, IF THE ASSESSEE HAVING EXPORT TURNOVER OF M ORE THAN RS.10 CRORES DOES NOT SATISFY THESE TWO CONDITIONS, HE WILL NOT BE ENTITLED TO THE ADDITION OF PROFIT ON TRANSFER OF DEPB UNDER THE THIR D PROVISO TO SUB- SECTION (3) OF SECTION 80HHC. ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 19 22. THE AFORESAID DISCUSSION WOULD SHOW THAT WHERE AN ASSESSEE HAS AN EXPORT TURNOVER EXCEEDING RS.10 CRORES AND HAS MADE PROFITS ON TRANSFER OF DEPB UNDER CLAUSE (D) OF SECTION 28, HE WOULD NOT GET THE BENEFIT OF ADDITION TO EXPORT PROFITS UNDER THIRD OR FOURTH PROV ISO TO SUB-SECTION (3) OF SECTION 80HHC, BUT HE WOULD GET THE BENEFIT OF EX CLUSION OF A SMALLER FIGURE FROM PROFITS OF THE BUSINESS UNDER EXPLANA TION (BAA) TO SECTION 80HHC OF THE ACT AND THERE IS NOTHING IN EXPLANATION ( BAA) TO SECTION 80HHC TO SHOW THAT THIS BENEFIT OF EXCLUSION OF A SMA LLER FIGURE FROM PROFITS OF THE BUSINESS WILL NOT BE AVAILABLE TO A N ASSESSEE HAVING AN EXPORT TURNOVER EXCEEDING RS.10 CRORES. IN OTHER WOR DS, WHERE THE EXPORT TURNOVER OF AN ASSESSEE EXCEEDS RS.10 CRORES, HE DOE S NOT GET THE BENEFIT OF ADDITION OF NINETY PER CENT OF EXPORT INCENTIVE UND ER CLAUSE (IIID) OF SECTION 28 TO HIS EXPORT PROFITS, BUT HE GETS A HIGHER FIGURE OF PROFITS OF THE BUSINESS, WHICH ULTIMATELY RESULTS IN COMPUTATION OF A BIGGER EXPORT PROFIT. THE HIGH COURT, THEREFORE, WAS NOT RIGHT IN COM ING TO THE CONCLUSION THAT AS THE ASSESSEE DID NOT HAVE THE EXPOR T TURNOVER EXCEEDING RS.10 CRORES AND AS THE ASSESSEE DID NOT FULFILL THE CONDITIONS SET OUT IN THE THIRD PROVISO TO SECTION 80HHC (III), THE ASSESSEE W AS NOT ENTITLED TO A DEDUCTION UNDER SECTION 80HHC ON THE AMOUNT RECEIVED ON TRANSFER OF DEPB AND WITH A VIEW TO GET OVER THIS DIFFICULTY THE A SSESSEE WAS CONTENDING THAT THE PROFITS ON TRANSFER OF DEPB UNDER SECTION 28 (IIID) WOULD NOT INCLUDE THE FACE VALUE OF THE DEPB. IT IS A WELL-SETTLED PRINCIPLE OF STATUTORY INTERPRETATION OF A TAXING STATUTE THAT A SUBJECT WILL BE LIABLE TO TAX AND WILL BE ENTITLED TO EXEMPTION FROM TAX A CCORDING TO THE STRICT LANGUAGE OF THE TAXING STATUTE AND IF AS PER THE WOR DS USED IN EXPLANATION (BAA) TO SECTION 80HHC READ WITH THE WORDS USED IN CL AUSES (IIID) AND (IIIE) OF SECTION 28, THE ASSESSEE WAS ENTITLED TO A DEDUCTION UNDER SECTION 80HHC ON EXPORT PROFITS, THE BENEFIT OF SUCH DEDUCTIO N CANNOT BE DENIED TO THE ASSESSEE. 23. THE IMPUGNED JUDGMENT AND ORDERS OF THE BOMBAY HI GH COURT ARE ACCORDINGLY SET-ASIDE. THE APPEALS ARE ALLOWED TO THE EXTENT INDICATED IN THIS JUDGMENT. THE ASSESSING OFFICER IS DIRECTED TO C OMPUTE THE DEDUCTION UNDER SECTION 80HHC IN THE CASE OF THE APPELLANTS IN ACCORDANCE WITH THIS JUDGMENT. THERE SHALL BE NO ORDER AS TO COSTS. IN THE LIGHT OF THE ABOVE DECISION, THE LD. ASSESSI NG OFFICER IS DIRECTED TO EXAMINE THE FACTUAL MATRIX AND AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE DECIDE IN ACCORDANCE WITH LAW IN THE LIGHT OF THE A FORESAID ITA NO.3734/MUM/2013 M/S ADNANI ENTERPRISES 20 DECISION FROM HONBLE APEX COURT IN TOPMAN EXPORTS LTD. THE ASSESSEE IS AT LIBERTY TO FURNISH NECESSARY EVI DENCE IN SUPPORT OF ITS CLAIM. THE APPEAL OF THE ASSESSEE, I S, THUS, ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 14/03/2016. SD/- SD/- (RAJENDRA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ) DATED : 14/03/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. / THE RESPONDENT. 3. + + # ,! ( ) / THE CIT, MUMBAI. 4. + + # ,! / CIT(A)- , MUMBAI, 5. /'01 !2 , + & 23 , # $ / DR, ITAT, MUMBAI 6. 14 5$ / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI