B.R. EXPORTS, MUMBAI V. DCIT 21(3), MUMBAI

ITA 5880/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62588 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 23-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA
• Assessee Lawyers: K V BESWAL
• Section: 143(3); 80HHC

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , ! ! ! ! , ' ' ' ' # # # # BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 5879 & 5880/MUM./2011 ( $ % &% / ASSESSMENT YEARS : 200304 & 200405 ) B.R. EXPORTS D1 ST FLOOR, OBEROI GARDEN ESTATES CHANDIVALI FARMS ROAD CHANDIVALI, ANDHERI (E) MUMBAI 400 072 .. '( / APPELLANT $ V/S DY. COMMISSIONER OF INCOME TAX CIRCLE2(3), PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX MUMBAI 400 051 .... )*'( / RESPONDENT ' ' ./ + ./ PAN/GIR NO.AABFA1730B $ %,- . / / ASSESSEE BY : MR. K.V. BESWAL . / / REVENUE BY : MR. P.C. MOURYA $ . -' / DATE OF HEARING 19.06.2012 0 12& . -' / DATE OF ORDER 04.07.2012 0 0 0 0 / ORDER PER B.R. MITTAL, J.M. THESE APPEALS PREFERRED BY THE ASSESSEE, ARE DIRECT ED AGAINST THE IMPUGNED ORDERS 17 TH JANUARY 2011, PASSED BY THE COMMISSIONER (APPEALS) XXXII, MUMBAI, FOR ASSESSMENT YEARS 200304 AND 200 405, ON COMMON B.R. EXPORTS 2 GROUNDS EXCEPT THE AMOUNT OF DEDUCTION GRANTED AND THE CLAIM UNDER SECTION 80HHC OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) ARE DIFFERENT. WE CONSIDER IT PRUDENT TO STATE THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 200304, WHICH READS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEARNED CIT(APPEALS) ERRED IN HOLDING THAT THE DIRECTION OF HONBLE TRIBUNAL WAS INAPPLICABLE TO THE FACTS OF THIS CASE. THE ORDER O F THE LEARNED ASSESSING OFFICER AS WELL AS THE CIT(A) IS BAD IN LAW, VOID A B INITIO ON THE GROUND THAT THE LEARNED AO FAILED TO FOLLOW THE DIRECTION OF HO NBLE TRIBUNAL IN GIVING EFFECT TO THE ORDER OF ITAT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN NOT HOLDING THE IMPUGNED ORDER OF THE AO BAD IN LAW AS THE RIGHT COURSE BEFORE THE AO WOULD HAVE BEEN TO FILE AN APPEAL BEF ORE THE HONBLE HIGH COURT OR MISCELLANEOUS APPLICATION BEFORE ITAT. 2.1 UNDER THE CIRCUMSTANCES THE IMPUGNED ORDER OF T HE CIT(A) IS BAD IN LAW. 3. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERN ATIVE AND ON THE MERIT, THE LEARNED AO LEGALLY ERRED IN GRANTING THE DEDUCT ION U/S 80HHC AT RS.4208,256 INSTEAD OF RS.1,60,85,444/- AS CLAIMED BY THE APPELLANT BY NOT TAKING INTO ACCOUNT THE BENEFIT OF DEDUCTION U/S 80 HHC IN RESPECT OF SALE OF PROFIT / RECEIPT OF DEPB.. 2. SINCE THE ISSUES AND FACTS ARE IDENTICAL, WE DISPOS E OFF BOTH THESE APPEALS BY THIS COMMON ORDER FOR THE SAKE OF CONVEN IENCE. 3. THESE APPEALS ARE ARISING OUT OF THE ASSESSMENT ORD ERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R/W SECTION 254 OF THE ACT. IT IS RELEVANT TO STATE THAT THE ASSESSING OFFICER COMPLE TED THE ASSESSMENT FOR ASSESSMENT YEAR 200304 ON 5 TH NOVEMBER 2003 AND FOR ASSESSMENT YEAR 200405 ON 30 TH OCTOBER 2004. THE ASSESSING OFFICER ALLOWED DEDUCT ION UNDER SECTION 80HHC FOR ` 42,08,256, FOR ASSESSMENT YEAR 200304 AND OF ` 11,96,466, FOR ASSESSMENT YEAR 200405, WHICH WERE CONFIRMED BY THE LEARNED COMMISSIONER (APPEALS). IN THE APPEALS FILE D BEFORE THE TRIBUNAL BEING ITA NO.3007/MUM./2007, FOR ASSESSMENT YEAR 20 0304, AND ITA NO.4346/MUM./2007, FOR ASSESSMENT YEAR 200405, THE TRIBUNAL SET ASIDE THE ASSESSMENT ORDERS AND RESTORED THE MATTER OF AL LOWING DEDUCTION UNDER SECTION 80HHC, WITH THE DIRECTION TO RECOMPUTE THE DEDUCTION UNDER SECTION 80HHC, IN ACCORDANCE WITH THE VIEW TAKEN BY THE TRI BUNAL, SPECIAL BENCH, MUMBAI, IN THE CASE OF TOPMAN EXPORT V/S ITO, 318 ( AT) 87 (SB) (MUM.). B.R. EXPORTS 3 4. THE ASSESSING OFFICER, WHILE GIVING EFFECT TO THE O RDERS OF THE TRIBUNAL, OBSERVED THAT THE HON'BLE JURISDICTIONAL HIGH COURT VIDE ITS JUDGMENT DATED 29 TH JUNE 2010, IN THE CASE OF CIT V/S KALPATARU COLOUR & CHEMICALS, 233 CTR 313, DISAPPROVED THE VIEWS OF THE TRIBUNAL, SPE CIAL BENCH, MUMBAI, IN THE CASE OF TOPMAN EXPORT (SUPRA). THE ASSESSING OF FICER, BY APPLYING THE SAID JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT, WORKED OUT THE DEDUCTION UNDER SECTION 80HHC, AS ALLOWED IN THE ORIGINAL ASS ESSMENT ORDERS. THE LEARNED COMMISSIONER (APPEALS) ALSO CONFIRMED THE A CTION OF THE ASSESSING OFFICER. HENCE, THESE APPEALS BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HON'BLE SUPREME COURT, VIDE ITS ORDER DATE D 8 TH FEBRUARY 2012, IN THE CASE OF TOPMAN EXPORTS V/S CIT, [2012] 67 DTR 1 85 (SC), HAS REVERSED THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT AND HAS CONFIRMED THE VIEW TAKEN BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE C ASE OF TOPMAN EXPORTS (SUPRA). HE SUBMITTED THAT THE MATTER COULD BE REST ORED TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ALLOW DEDUCTI ON TO THE ASSESSEE UNDER SECTION 80HHC OF THE ACT IN CONFORMITY WITH THE ORD ER OF THE HON'BLE SUPREME COURT (SUPRA). 6. LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT OBJECTE D TO ABOVE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . 7. IN VIEW OF ABOVE SUBMISSIONS OF THE LEARNED REPRESE NTATIVES OF THE PARTIES AND THE FACT THAT THE HON'BLE SUPREME COURT HAS CONFIRMED THE VIEW TAKEN BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE C ASE OF TOPMAN EXPORT (SUPRA) AND HAS REVERSED THE JUDGMENT OF HON'BLE JU RISDICTIONAL HIGH COURT, WE RESTORE THE MATTER TO THE FILE OF ASSESSING OFFI CER WITH A DIRECTION TO COMPUTE THE DEDUCTION UNDER SECTION 80HHC OF THE AC T FOLLOWING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN THE CASE OF TOPMA N EXPORT WHICH HAS NOW BEEN CONFIRMED BY THE HON'BLE SUPREME COURT. THEREF ORE, WE ALLOW THE GROUND OF APPEAL TAKEN BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. B.R. EXPORTS 4 8. , -3 . 4 5. 67 8 - 9 . - :; < 10. IN THE RESULT, REVENUES APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSE. 0 . 2& ' 4 =$3 4 TH JULY 2012 2 . > < ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JULY 2012 SD/- ! ! ! ! ' ' ' ' RAJENDRA ACCOUNTANT MEMBER SD/- . . B.R. MITTAL JUDICIAL MEMBER MUMBAI, DATED: 4 TH JULY 2012 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, B BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI