DCIT 17(3), MUMBAI V. ASIAN IMPEX, MUMBAI

ITA 4186/MUM/2010

• Counselvise Citation: 418619914 RSA 2010
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 24-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA SR
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.K.PANDA, ACCOUNTANT MEMBER ITA. NO. 4186/MUM/2010 ASSESSMENT YEAR 2004-2005 DCIT 17 (3), MUMBAI 12. VS. M/S. ASIAN IMPEX MUMBAI 400 011 PANAAIFA2080L (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI P.C.MOURYA, SR. A.R. FOR RESPONDENT : SHRI RAHUL HAKANI ORDER PER D. MANMOHAN, V.P. 1. THIS APPEAL IS FILED AT THE INSTANCE OF THE REV ENUE AND IT PERTAINS TO THE ASSESSMENT YEAR 2004-2005. THE ONLY GROUND URGED BY THE REVENUE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DIRECTING TO COMPU TE DEDUCTION U/S. 80HHC ON AMOUNT OF DEPB RECEIPT WITHOUT TAKING INTO CONSIDERATION AMENDED PROVISION S OF SECTION 28 R.W.S. 80HHC WHERE ASSESSEES EXPORT TURNOVER IS RS.10 CRORES AND ABOVE. 2. AT THE TIME OF HEARING, LEARNED COUNSEL SUBMITT ED THAT THE LEARNED CIT(A) DECIDED THE ISSUE IN FAVOUR OF T HE ASSESSEE BY FOLLOWING THE DECISION OF THE ITAT, MUMBAI, SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS VS. ITO (2009) 318 ITR (AT) 87 (M UM.) (SB). HOWEVER, WHILE GIVING EFFECT TO THE ORDER OF THE LE ARNED CIT(A), THE ASSESSING OFFICER NOTICED THAT THE DECISION OF THE ITAT, MUMBAI, SPECIAL BENCH WAS REVERSED BY THE HONBLE BOMBAY HI GH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS (2010 ) 328 ITR 451 2 (BOM.) AND BY APPLYING THE DECISION OF THE JURISDIC TIONAL HIGH COURT THE ISSUE WAS DECIDED IN FAVOUR OF THE REVENUE IN W HICH EVENT APPEAL FILED BY THE REVENUE BECOMES INFRUCTUOUS. AT ANY RA TE, THE MATTER HAS NOT REACHED FINALITY AND SO AS TO KEEP A PROVISION FOR FUTURE EVENTUALITY, IN THE EVENT OF APEX COURT DECIDING TH E ISSUE IN FAVOUR OF THE ASSESSEE, THE GROUND RAISED BY THE REVENUE CAN BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO F OLLOW THE DECISION OF THE HONBLE BOMBAY HIGH COURT OR ANY OTHER JUDGMENT OF THIS COURT OR THE APEX COURT AS MAY BE CITED ON BEHALF OF THE PARTIES AT A FUTURE POINT OF TIME. IN THIS REGARD, HE RELIED UPON UNREP ORTED DECISION OF THE HNBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S . VIJAY SILK HOUSE (BANGALORE) LTD. INCOME TAX APPEAL NO. 1908/2 010 DATED 15 TH NOVEMBER, 2010. 3. WE HAVE ALSO HEARD THE LEARNED DR AND CAREFULLY PERUSED THE RECORD. 4. AS THE THINGS STAND TODAY, THE ISSUE IS SQUAREL Y COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT, I N FAVOUR OF THE REVENUE AND IN FACT WHILE GIVING EFFECT TO THE ORDE R OF THE CIT(A), THE ASSESSING OFFICER PREFERRED TO FOLLOW THE DECISION OF THE HONBLE BOMBAY HIGH COURT TO DECIDE THE ISSUE IN FAVOUR OF THE REVENUE. THUS VIRTUALLY THERE IS NO CAUSE OF ACTION BY THE REVENU E TO PREFER AN APPEAL. AT ANY RATE, IN THE LIGHT OF DECISION OF TH E HONBLE BOMBAY HIGH COURT (SUPRA), WE SET ASIDE THE ORDER OF THE L EARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO RECONSIDER THE MATT ER IN ACCORDANCE WITH LAW. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS A LLOWED AS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 20 TH JUNE, 2011 VBP/- 3 COPY TO 1. DCIT 17 (3), ROOM NO. 614, 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 12. 2. M/S. ASIAN IMPEX, 103, VEENA KILEDAR INDUSTRIAL ESTATE, PAIS ROAD, BYCULLA, MUMBAI 400 011 PANAAIFA2080L 3. CIT(A)-29, C-10, 7 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA EAST, MUMBAI 4. CIT-17, MUMBAI. 5. DR A BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.