NARAYANDAS SUGNOMAL, MUMBAI V. ACIT 14(3), MUMBAI

ITA 5623/MUM/2011

• Counselvise Citation: 562319914 RSA 2011
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 03-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: M P MAKHIJA; S M MAHIJA
• Section: 147; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.5623/MUM/2011 ASSESSMENT YEAR 1999-2000 ITA NO.5624/MUM/2011 ASSESSMENT YEAR 2000-01 ITA NO.5625/MUM/2011 ASSESSMENT YEAR 2002-2003 NARAYANDAS SUGNOMAL, 401, 4 TH FLOOR, DEV-RUP CHS., 36, TURNER ROAD, BANDRA (WEST), MUMBAI 400 050. PAN: AAAFN 3165 F VS. THE ACIT 14(3), EARNEST HOUSE, NARIMAN POINT, MUMBAI 400 021 (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI M.P. MAKHIJA & SHRI S.M. MAHIJA REVENUE BY : SHRI P.C. MAURYA DATE OF HEARING : 25-06-2012 DATE OF PRONOUNCEMENT : 04-07-2012 ORDER PER RAJENDRA, AM FOLLOWING GROUNDS OF APPEAL WERE FILED BY THE APPELLANT AGAINST THE ORDER DATED 13-06-2011 OF THE CIT(A)-25, MUMBAI : I) THE LEARNED CIT(A) IS NOT JUSTIFIED IN CONFIRMIN G THE ORDER OF LEARNED ASSESSING OFFICER WITHOUT PROPERLY APPRECIA TING THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.5623/5624/5625/MUM/2011 NARAYANDAS SUGNOMAL, 2 II) WITHOUT PREJUDICE TO THE ABOVE APPELLANTS SUBMI T THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IS NOT CONSIDERING APPLICATION FILED BY THE ASSESSEE/APPELLANTS U/S. 158A OF THE 1. T. A CT, 1961 WHICH WAS FILED BY THE APPELLANTS BEFORE HIM TO AVO ID MULTIPLICITY OF APPEALS. III) THE APPELLANTS CRAVE LEAVE TO ADD, AMEND, ALTE R AND / OR VARY ANY OF THE GROUNDS AT THE TIME OR BEFORE THE H EARING OF THIS APPEAL. IV) THE APPELLANTS THEREFORE PRAY THAT APPELLANTS REQUEST FOR PASSING OF AN ORDER IN VIEW OF ITS APPLICATION U/S. 158A OF THE I. T. ACT, 1961 MAY PLEASE BE ACCEPTED. 2. BRIEF FACTS OF THE CASE : IN THE CASE OF ASSESSEE FIRM, ENGAGED IN THE BUSINE SS OF EXPORT OF FABRICS, ASSESSMENT U/S. 143(3) R . W . S . 147 OF THE INCOME-TAX ACT,1961 (ACT) WAS COMPLETED ON 29.11.2006.ASSSESSING OFFICE R (AO) RESTRICTED ITS CLAIM OF DEDUCTION MADE U/S.80HHC OF THE ACT TO RS.1,65,28,910/- AS AGAINST RS.3,19,04,841/-. ASEES EE FILED AN APPEAL BEFORE FIRST APPELLATE AUTHORITY (FAA), WHO ALLOWED THE APPEAL OF ASSESSEE FOR STATISTICAL PURPOSES RELYING ON THE DE CISION OF ITAT IN ASSESSEES OWN CASE FOR A.Y.2002-03. BEING AGGRIEV ED WITH THE ORDER OF THE FAA DEPARTMENT PREFERRED AN APPEAL BEFORE I TAT. TRIBUNAL DIRECTED THE AO TO RE-COMPUTE THE DEDUCTION U/S.8OH HC OF THE ACT IN ACCORDANCE WITH THE VIEW TAKEN BY SPECIAL BENCH OF ITAT MUMBAI IN THE CASE OF M/S. TOPMAN EXPORTS V/S. ITO. AGAINST THE SAID ORDER DEPARTMENT FILED AN APPEAL BEFORE HONBLE HIGH COUR T U/S. 260A. THE HONBLE HIGH COURT DELIVERED THE JUDGMENT ON 06.08. 2010 DIRECTING THE AO TO DECIDE THE ISSUE IN ACCORDANCE WITH THE D ECISION OF HONBLE HIGH COURT OF MUMBAI IN THE CASE OF CIT V/S. KALPAT ARU COLOURS AND CHEMICALS WHERE IN IT WAS HELD THAT THE AMOUNT RECE IVED ON TRANSFER OF DEPB CREDIT INCLUDING FACE VALUE OF DEPB CREDIT WOULD CONSTITUTE PROFIT OF BUSINESS U/S . 28(IIID) OF THE ACT. AGAINST THE SAID ORDER OF HONBLE BOMBAY HIGH COURT ASSESSEE FILED AN SLP BEF ORE HONBLE APEX COURT. 2.1 IN THE MEANWHILE IN PURSUANCE TO THE HIGH COURT ORD ER AO COMPLETED FRESH ASSESSMENT ALLOWING ASSESSEES CLAI M U/S. 8OHHC TO THE EXTENT OF RS. L.65 CRORES AS AGAINST RS.3.19 CR ORES AS STATED ABOVE. AGAINST THE ABOVE ASSESSMENT ORDER I.E., THE SECOND ASSESSMENT PASSED IN PURSUANCE OF THE ORDER OF THE HOBLE BOMBAY HIGH COURT, ASSESSEE FILED AN APPEAL BEFORE THE FAA . AMONG OTHER GROUNDS ASSESSEE CONTENTED THAT SINCE IN ITS OWN CA SE AGAINST THE ORDER OF HONBLE HIGH COURT, AN APPEAL HAD BEEN FIL ED BEFORE HONBLE SUPREME COURT, THE APPEAL BEFORE THE FAA SHOULD BE KEPT PENDING TILL ITA NOS.5623/5624/5625/MUM/2011 NARAYANDAS SUGNOMAL, 3 THE APPEAL BEFORE HONBLE SUPREME COURT WAS DECIDED . THE ASSESSEE ALSO FILED A DECLARATION U/S. 158A(1) OF THE I.T. ACT. HOWEVER, FAA DISMISSED ASSESSEES APPEAL HOLDING THAT SINCE AOS ORDER WAS THE RESULT OF DECISION OF HONBLE BOMBAY HIGH, THAT IN EFFECT, IT WAS IN THE NATURE OF GIVING EFFECT TO THE ORDER OF HONBLE HIG H COURT ASSESSEES REQUEST TO KEEP THE MATTER PENDING TILL THE DECISIO N OF HONBLE SUPREME COURT COULD NOT BE ACCEPTED. 3. BERFORE US, AR SUBMITTED THAT HONBLE APEX COURT AL ONG WITH THE CASE OF TOPMAN EXPORTSV/S. CIT IN APPEAL NO. SL P(CIVIL) BEARING NO. 32384/2010 CONVERTED TO CIVIL APPEAL NO. 1806/2 0 12 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY ITS ORDER DT . 08/02/2012. DR SUBMITTED THAT ISSUE MIGHT BE DECIDED BY THE BENCH ON MERITS OF THE CASE. 4. WE HAVE PERUSED THE ORDER OF THE HONBLE SUPREME CO URT. THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE APEX COURT. SO, IN OUR HUMBLE OPINION, THERE IS NO REQUIREMENT OF PASSING ORDER IN THE APPEALS UNDER CONSIDERATION. WE ARE OF THE OPI NION THAT AO HAS TO GIVE EFFECT TO THE ABOVE REFERRED ORDER (PARA 3) OF THE HONBLE SUPREME COURT. 5. MATTER HAS ATTAINED FINALITY WITH THE ORDER OF THE HONBLE APEX COURT. IN THESE CIRCUMSTANCES WE DISMISS THE SAID APPEALS TREATING THEM AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JULY, 2012. SD/- SD/- (B.R. MITTAL) (RAJENDRA) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI, DATE 4 TH JULY, 2012 TNMM ITA NOS.5623/5624/5625/MUM/2011 NARAYANDAS SUGNOMAL, 4 COPY TO: 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR B BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI