ACIT 24(1), MUMBAI V. ANIL LAXMICHAND SHAH, MUMBAI

ITA 3924/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48855 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 14-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K V SAMPATHKUMAR
• Keywords: Set aside
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER. ITA NO.3924/MUM/10 (ASSESSMENT YEAR : 2001-02) ASST. COMMISSIONER OF INCOME TAX 24(1), MUMBAI. VS. MR. ANIL LAXMICHAND SHAH, PROP. M/S. LE-SHARK (INDIA), 307, PREMSONS INDL. ESTATE, 3 RD FLOOR, TAHIRA COMPOOUND, CAVES ROAD, JOGESHWARI (E), MUMBAI-400 060. PAN AADPS7072F APPELLANT. RESPONDENT. APPELLANT BY : SHRI K.V.SAMPATH KUMAR. RESPONDENT BY : NONE. O R D E R PER SHRI R. S. SYAL : THIS APPEAL FILED BY THE REVENUE ARIS ES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) ON 26.2.2010 I N RELATION TO THE ASST. YEAR 2001-02. 2. THE FOLLOWING EFFECTIVE GROUND PROJECTS THE GRIE VANCE OF THE REVENUE AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFF ICER TO ALLOW THE DEDUCTION/S. 80HHC ON THE BASIS OF SPECIAL BENC H ITATS DECISION IN THE CASE OF TOPMAN EXPORTS, WHICH IS NO T ACCEPTED BY THE DEPARTMENT. ITA NO.3924/MUM//10 - 2 - 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANC E FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. IT IS NOTICED THAT THE CI T(A) ACCEPTED THE ASSESSEES CONTENTION ON THE QUESTION OF DEDUCTION U/S. 80HHC ON PROFIT ON SALE OF DEPB BY RELYING ON THE SPECIAL BENCH ORDER PASSED BY THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS IN ITA NO.5651/MUM/2006. IT IS NOTI CED THAT THE SAID SPECIAL BENCH ORDER HAS BEEN REVERSED BY THE HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS (20 10) 328 ITR 451 (BOM). IN VIEW OF THIS POSITION, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR TAKING A FRESH DECISION AS PER THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CAS E OF KALPATARU COLOURS AND CHEMICALS (SUPRA), AFTER ALLOWING A REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY, 2011. SD/- SD/- (VIJAY PAL RAO) (R.S. SYAL) JUDICIAL MEMBER ACCOUNT ANT MEMBER MUMBAI, DT.25.05.2011. *GPR ITA NO.3924/MUM//10 - 3 - COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE, ITAT, MUMBAI. BY ORDER DY./ASST.REGISTRAR, ITAT, MUMBAI