ACIT 24(1), MUMBAI V. MAXHEAL PHARMACEUTICALS (I), MUMBAI

ITA 5972/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62684 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: ISHWER RATHI
• Section: 80HHC

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI .. , ! ' , # !, $ BEFORE SHRI R.S.SYAL, AM AND SHRI VIVEK VARMA, JM ./ ITA NOS.5971, 5972 & 5973/MUM/2011 ( #& ' #& ' #& ' #& ' / / / / ASST.YEARS : 2002-2003, 2003-2004 & 2004-2005) THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 24(1) MUMBAI. M/S.MAXHEAL PHARMACEUTICALS (INDIA) 103 TULSI NIWAS, PUSHTIKAR CHS JOGESHWARI (WEST) MUMBAI 400 102. PAN : AAAFM5117C. ( () / // / APPELLANT) & & & & / VS. ( *+()/ RESPONDENT) () , ,, , - - - - / APPELLANT BY : SHRI P.C.MAURYA *+() , - , - , - , - / RESPONDENT BY : SHRI ISHWER RATHI & , . / / / / DATE OF HEARING : 19.07.2012 /0' , . / DATE OF PRONOUNCEMENT : 25.07.2012 !1 !1 !1 !1 / / / / O R D E R PER BENCH : THESE THREE APPEALS BY THE REVENUE RELATE TO THE AS SESSMENT YEARS 2002- 2003, 2003-2004 AND 2004-2005. THE SOLITARY COMMON GROUND RAISED IN ALL THESE APPEALS IS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DIRECTING THE AO TO RE-ASSESS TH E INCOME OF THE ASSESSEE AS PER THE DECISION OF THE HONBLE I.T .A.T IN THE CASE OF M/S.TOPMAN EXPORTS, WITHOUT CONSIDERING THAT THE SAID DECISION HAS BEEN REVERSED BY THE HONBLE BOMBAY HI GH COURT IN VIEW OF THE DECISION IN THE CASE OF M/S.KALPATAR U COLOURS AND CHEMICALS. ITA NOS.5971, 5972 & 5973/MUM/2011 M/S.MAXHEAL PHARMACEUTICALS (INDIA). 2 2. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE ISSUE RAISED IN THESE APPEALS IS NO MORE RES INTEGRA IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COU RT IN THE CASE OF TOPMAN EXPORTS V. ITO [(2012) 67 DTR 185 (SC)] IN WHICH IT HAS BEEN HELD WHEN DEPB IS SOLD BY A PERSON, HIS PROFIT ON TRANSF ER OF DEPB WILL BE SALES VALUE OF DEPB LESS ITS FACE VALUE. IT HAS FURTHER B EEN HELD THAT DEPB IS CHARGEABLE AS INCOME U/S 28(IIIB) IN THE YEAR IN WH ICH SUCH PERSON APPLIES FOR DEPB AGAINST THE EXPORTS AND PROFIT ON SALE OF DEP B IS CHARGEABLE U/S 28(IIID) IN THE YEAR IN WHICH HE TRANSFERS DEPB. IT IS OBSE RVED THAT THE LD. CIT(A) DIRECTED THE AO TO COMPUTE THE AMOUNT OF DEDUCTION U/S 80HHC IN ACCORDANCE WITH THE SPECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORTS. THE SAID ORDER OF THE SPECIAL BENCH WAS THEREAFTER REVERSED BY THE HO NBLE BOMBAY HIGH COURT. SUBSEQUENTLY, THE HONBLE SUPREME COURT HAS APPROV ED THE VIEW OF THE SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS. IN THE LIGHT O F THESE FACTS, IT BECOMES EVIDENT THAT NO FAULT CAN BE FOUND IN THE IMPUGNED ORDER. 3. 2 .3 4 , 5 24 , 4. 67 IN THE RESULT, ALL THE APPEALS ARE DISMISSED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JULY, 2012. !1 , /0' 8!&3 0 , 9 SD/- SD/- (VIVEK VARMA) (R.S.SYAL) # ! # ! # ! # ! / JUDICIAL MEMBER ! ! ! ! / ACCOUNTANT MEMBER MUMBAI ; 8!& DATED 25 TH JULY, 2012. DEVDAS* ITA NOS.5971, 5972 & 5973/MUM/2011 M/S.MAXHEAL PHARMACEUTICALS (INDIA). 3 !1 , *#.:' ;''. !1 , *#.:' ;''. !1 , *#.:' ;''. !1 , *#.:' ;''./ COPY OF THE ORDER FORWARDED TO : 1. () / THE APPELLANT 2. *+() / THE RESPONDENT. 3. < () / THE CIT(A)34, MUMBAI. 4. < / CIT 5. '?9 *#.#& , , / DR, ITAT, MUMBAI 6. 9@ A / GUARD FILE. !1& !1& !1& !1& / BY ORDER, +'. *#. //TRUE COPY// B B B B/ // /6 4 6 4 6 4 6 4 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI