S.K.AGE EXPORTS, MUMBAI V. ASST.C.I.T. 16(3), MUMBAI

ITA 6759/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7482 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 06-01-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 24-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: H S RAHEJA
• Keywords: Opportunity of being heard; Reasonable cause; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI N.V. VASUDEVAN, JM AND SHRI T.R. SOOD , AM I.T.A.NOS. 6759 & 6760/MUM/2008 ASSESSMENT YEARS :2002-03 AND 2004-05 M/S. S.K. AGE EXPORTS, A/3, SHIV SAGAR ESTATES, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 18 PAN: AAAFS 4534 R VS. THE ASST. COMMISSIONER OF INCOME- TAX,-16(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.S.RAHEJA RESPONDENT BY : SHRI NAVEEN GUPTA O R D E R PER T.R. SOOD, AM: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XVII, MUMBAI, AND THEY RELATE TO THE ASSESSMENT YEARS 2002-03 AND 2004-05. 2. GROUND NOS. 1, 2 AND 5 IN ITA NO. 6759/M/08 AND GROUND NO. 2 IN ITA NO. 6759/M/08 WERE NOT PRESSED. THEREFORE, THESE GR OUNDS ARE DISMISSED AS NOT PRESSED. THIS WOULD LEAVE US ONLY WITH THE ISSUE R EGARDING DUTY DRAW-BACK AND DEPB LICENCE FOR THE PURPOSE OF DEDUCTION UNDER SEC TION 80-HHC OF THE ACT. WE FIND THAT BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS ISSUES ARE SIMILAR TO THOSE DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. TOPMAN EXPORTS V. ITO (2009) 318 ITR (AT) 8 7 (MUMBAI)(SB). THE SPECIAL BENCH VIDE ITS ORDER DATED 11.08.2009 HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR CONSIDERING THE FACE VALUE OF DEPB AS CO VERED UNDER SECTION 28(IIIB) AND THE PROFITS ON TRANSFER OF DEPB I.E. EXCESS OF SALE PRICE OVER THE FACE VALUE OF DEPB AS FALLING UNDER SECTION 28(IIID). IT HAS FURT HER BEEN HELD THAT THERE IS NO SCOPE FOR ALLOWING SEPARATE DEDUCTION FOR INDIVIDUA L EXPENSES CONNECTED WITH THE SALE OF DEPB DUE TO THE SCHEME OF SECTION 80HHC. WE , THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER BACK TO THE F ILE OF THE ASSESSING OFFICER ITA NO 6759 & 6760/M/08 2 WITH DIRECTION TO RE-COMPUTE THE DEDUCTION U/S.80HH C IN ACCORDANCE WITH THE VIEW TAKEN BY THE SPECIAL BENCH CITED SUPRA. NEEDLESS T O SAY THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO IN THE FRESH PROCEEDINGS. ACCORDINGLY THE ISSUE IS ALLOWED FOR S TATISTICAL PURPOSES. 3. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED ON THIS 19 TH DAY OF MARCH 2010. SD. SD. (N.V.VASUDEVAN) (T. R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 19 TH MARCH, 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-XVI, MUMBAI 4. THE CIT(A)-XVII, MUMBAI 5. THE DR E BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NO 6759 & 6760/M/08 3 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 , RECEIVED BACK. IT IS THEREFORE, PRESUMED THAT THE ASSESSEE IS NOT INT ERESTED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (2 23 ITR 480)(MP) THAT IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-BOOKS, SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT B OUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD., 38 ITD 320 (DEL.) IS A LSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRESENT APPEAL BEFORE THE TRIBUNAL, ACCORDINGLY THE APPEAL OF THE ASSESSEE IS DISMISSED AS UNADMITTED. THE ASSESSEE, IF SO ADVISED, SHALL BE FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE ITA NO 6759 & 6760/M/08 4 ASSESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON- APPEARANCE ON THE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION RECALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTA INED TO CONCEALMENT OF INCOME OF RS. 1,02,744/- AND THE PENALTY LEVIED WAS RS. 22 ,248/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY, 2008 THE APPEAL IS NOT MAINTAINABLE, TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTA INING MONETARY LIMITS FOR FILING OF APPEALS, IN THE CASE OF PENALTY ORDERS, WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY, 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY, 2009. KN COPY TO: 6. THE ASSESSEE 7. THE ITO-26(1)(2), MUMBAI. 8. THE CIT, CITY-XXVI, MUMBAI 9. THE CIT(A)-XXVIII, MUMBAI 10. THE DR, G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI S.NO. DETAILS DATE INITIALS DESIGNATION ITA NO 6759 & 6760/M/08 5 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO 6759 & 6760/M/08 6