ANAND INTERNATIONAL, NAVI MUMBAI V. ACIT CIR 25(3), MUMBAI

ITA 4976/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1435 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 31-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U ANJANEYULU
• Assessee Lawyers: I P RATHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI. J.SUDHAKAR REDDY (A.M.) AND SHRI. V.D. RAO (J.M.) ITA NO.4976/MUM/2009 ASSESSMENT YEAR : 2001-2002 ANAND INTERNATIONAL 76A & B, GOVT. INDS. ESTATE, CHARKOP, KANDIVALI (W), MUMBAI 400 067. PAN : AAAFA2526K VS. ASST. COMM. OF INCOME TAX CIRCLE 25(3) PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI I.P. RATHI DEPARTMENT BY : SHRI U. ANJANEYULU. O R D E R PER J. SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE, DIRECTED A GAINST THE ORDER OF THE LEARNED CIT (A)-XXVI, MUMBAI DATED 29.06.2009 F OR THE ASSESSMENT YEAR 2001-2002 ON THE FOLLOWING GROUNDS: 1. THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING T HE DEDUCTION U/S.80HHC AT RS.2,40,07,590/- AS AGAINST THE CLAIM OF RS.2,85,17,930/- . 2. THAT THE LEARNED CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ENTIRE DEPB BENEFIT OF RS.72,44,592/- AS I NCOME U/S.28(IIID), AS AGAINST ACTUAL PROFIT ON TRANSFER OF DEPB ENTITLEMENT OF RS.7,44,848/-. AND HAS FURTHER ERRED IN GIVING EFFECT OF THE SAME WHILE CALCULATING THE PROFITS OF TH E BUSINESS UNDER EXPLANATION BAA TO SECTION 80HHC. 3. FURTHER WITHOUT PREJUDICE TO THE ABOVE, THE FACE V ALUE OF DEPB ENTITLEMENTS ACCRUED ON EXPORT PERFORMANCE SH OULD HAVE BEEN CONSIDERED AS EXPORT INCENTIVES U/S.28(IIIB) WHILE CALCULATING THE DEDUCTION U/S.80HHC. 4. YOUR APPELLANT CRAVES LEAVE TO CONSIDER EACH OF THE ABOVE GROUND OF APPEAL WITHOUT PREJUDICE TO EACH OTHER AND TO ADD, ALTER, AMEND OR FURNISH FRESH AND DETAILED GROUNDS OF APPEALS. ITA NO.4976/MUM/2009 A.Y.: 2001-2002 2 2. WE HAVE HEARD MR. I.P. RATHI , LEARNED COUNSEL FOR THE ASSESSEE AND MR. U. ANJANEYULU, LEARNED DR. BOTH THE PARTIES S UBMITTED THAT GROUND NO.2 & 3 ARE COVERED BY THE DECISION OF SPECIAL BEN CH OF TRIBUNAL IN THE CASE OF M/S. TOPMAN EXPORTS (2009) 318 ITR (A.T.) 8 7, WHEREIN IT IS HELD THAT DEPB ENTITLEMENT BECOMES INCOME OF THE EXPORTE R AS SOON AS A CLAIM IS PREFERRED BEFORE THE AUTHORITY AND FURTHER OBSERVED THAT FOR THE PURPOSE OF EXPLANATION (BAA), THE AMOUNT TO BE EXCLUDED IS THE PROFIT ON TRANSFER OF DEPB AND NOT THE AMOUNT OF ENTITLEMENT OR SALES PRO CEEDS ITSELF. IN VIEW OF THE ABOVE SUBMISSIONS WE SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN LINE WITH THE DEC ISION OF THE SPECIAL BENCH DECISION IN THE CASE OF TOPMAN EXPORTS (SUPRA). 3. COMING TO THE GROUND NO.1 AND 4, THEY ARE GENERA L IN NATURE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010. SD/- (V.D. RAO) (JUDICIAL MEMBER) SD/- (J.SUDHAKAR REDDY) (ACCOUNTANT MEMBER) MUMBAI, DATED 18 TH JUNE, 2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-XXIV, MUMB AI 4. COMMISSIONER OF INCOME TAX, CITY-XXIV, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI