M/S. NARAYANDAS SUGNOMAL, MUMBAI V. THE ITO WD, MUMBAI

ITA 6452/MUM/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2672 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 23-10-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S M KESHKAMAT S S RANA
• Assessee Lawyers: M MAKHIJA
• Keywords: Opportunity of being heard; Reassessment proceedings; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE S/SHRI R.S.SYAL, AM & R.S.PADVEKAR,,JM I.T.A. NOS.6452 & 6453/MUM/2007 ASSESSMENT YEARS: 1999-2000 & 2002-03 NARAYANDAS SUGNOMAL, V. THE I.T.O. 14(3)(2), 26, JAY MAHAL ESTATE, 39, KITCHEN GARDEN EARNEST H OUSE, NARIMAN POINT, MUMBAI-02. MUMBAI. PA NO.AAAFN 3165 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.MAKHIJA REVENUE BY : SHRI S.M.KESHKAMAT/S.S.RANA (DR) O R D E R PER R.S.SYAL, AM THESE TWO APPEALS BY THE ASSESSEE ARISE OUT OF SEP ARATE ORDERS PASSED BY THE CIT(A)-XV, MUMBAI ON 11 TH SEPTEMBER, 2007 IN RELATION TO ASSESSMENT YEARS 1999- 2000 AND 2002-03, RESPECTIVELY. SINCE THE ISSUES R AISED IN THESE APPEALS ARE COMMON, WE ARE THEREFORE, PROCEEDING TO DISPOSE OF THEM BY THI S CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LD COUNSEL FOR THE ASSESSEE DID NOT PRESS TH E GROUND CHALLENGING THE INITIATION OF REASSESSMENT PROCEEDINGS. HENCE, THIS GROUND TA KEN IN BOTH THE APPEALS, HEREBY STANDS DISMISSED. 3. THE ONLY OTHER GROUND TAKEN IN BOTH THE APPEALS IS AGAINST COMPUTATION OF DEDUCTION U/S. 80 HHC VIS-A-VIS DEPB. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THR OUGH THE RELEVANT MATERIAL ON RECORD. IT IS FOUND THAT THE FACTS AND CIRCUMSTANC ES OF THIS GROUND ARE MUTATIS MUTANDIS SIMILAR TO THOSE DECIDED BY THE SPECIAL BENCH OF TH E TRIBUNAL IN THE CASE OF M/S. TOPMAN EXPORTS V. ITO,(2009) 318 ITR(AT )87 (MUMBAI)(SB). THE SPECIAL BENCH VIDE ITS ORDER I.T.A. NOS.6452 & 6453/MUM/2007 2 DATED 11.8.2009 HAS RESTORED THE MATTER TO THE FILE OF THE AO FOR CONSIDERING THE FACE VALUE OF DEPB AS COVERED UNDER SECTION 28(IIIB) AND THE PROFIT ON TRANSFER OF DEPB 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 ALLOWI NG SEPARATE DEDUCTION FOR INDIVIDUAL EXPENSES CONNECTED WITH THE SALE OF DEPB DUE TO THE SCHEME OF SECTION 80 HHC. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER ON THIS ISS UE AND DIRECT THE AO TO RECOMPUTE THE DEDUCTION U/S.80HHC IN ACCORDANCE WITH THE VIEW TAK EN BY THE SPECIAL BENCH IN THE AFORENOTED CASE. NEEDLESS TO SAY THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ON 11 TH DECEMBER, 2009 SD/- SD/- (R.S.PADVEKAR) ( R .S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 11 TH DECEMBER , 2009. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T.A.T., MUMBAI. PARIDA BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. I.T.A. NOS.6452 & 6453/MUM/2007 3 DATE INITIALS SR.P.S 1. DRAFT DICTATED ON 11.12 .2009 2. DRAFT PLACED BEFORE AUTHOR 11..12.2009 3. DRAFT PROPOSED & PLACED BEFORE THE JM/AM SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY JM/AM SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR.PS SR .PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR. P S 8. DATE ON WHICH FILE GOES TO THE H.C. 9. DATE OF DISPATCH OF ORDER