MAHAJAN SILK MILLS, MUMBAI V. ACIT CIR 23(1), MUMBAI

ITA 5727/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1531 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 26-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Keywords: Set aside
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.5727/MUM/2009 : ASST.YEAR 2004-2005 M/S.MAHAJAN SILK MILLS L.B.S.MARG, VIKHROLI (WEST) MUMBAI 400 079. PA NO.AAAFM1714H. VS. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 23(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : --- NONE --- RESPONDENT BY : SHRI VIRENDRA OJHA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 20.11.2007 IN RELATION TO THE ASSESSMENT YEAR 2004-2005. THE ONLY ISSUE RAISED IN THIS APPE AL IS AGAINST NOT ALLOWING OF DEDUCTION U/S 80HHC ON DEPB. 2. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE. WE FIND THAT THE FACTS AND CIRCUMSTANCES OF THE ISS UE RAISED IN THIS APPEAL ARE SIMILAR TO THOSE DECIDED BY THE SPECIAL BENCH OF TH E TRIBUNAL IN THE CASE OF M/S.TOPMAN EXPORTS VS. ITO [(2009) 318 ITR (AT) 87 (MUMBAI) (SB)] . THE SPECIAL BENCH VIDE ITS ORDER DATED 11.08.2009 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING THE FACE VALU E OF DEPB AS COVERED UNDER SECTION 28 (IIIB) AND THE PROFIT ON TRANSFER OF DEP B I.E., EXCESS OF SALE PRICE OVER THE FACE VALUE OF DEPB AS FALLING UNDER SECTION 28 (IIID). IT HAS FURTHER BEEN HELD THAT THERE IS NO SCOPE FOR ALLOWING SEPARATE DEDUCT ION FOR INDIVIDUAL EXPENSES ITA NO.5727/MUM/2009 M/S.MAHAJAN SILK MILLS. 2 CONNECTED WITH THE SALE OF DEPB DUE TO THE SCHEME O F SECTION 80HHC. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER ON THIS ISS UE AND DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION UNDER SECTION 80 HHC IN ACCORDANCE WITH THE VIEW TAKEN BY THE SPECIAL BENCH IN THE AFORE NOTED CASE. NEEDLESS TO SAY THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY O F BEING HEARD BY THE AO IN THE FRESH PROCEEDINGS. 3. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 18 TH JUNE, 2010 . DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)-XXIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.