DHANA SINGH ESTAE P. LTD, MUMBAI V. ITO 8(1)(3), MUMBAI

ITA 6916/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3789 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-04-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 12-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHUTOSH RAJHANSDR
• Section: 80HHC; 144

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENC H, MUMBAI ! . '# , % &'( & BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI D. KARUNAKARA RAO, AM & ./I.T.A. NO.6916/M/2011 ( ) * +* / ASSESSMENT YEAR : 2004-05) M/S. DHANA SINGH ESTATE PVT. LTD., DHANA SINGH PROCESSORS COMPOUND, GALI VIZIR, GLASS WORKS, J.B. NAGAR, ANDHERI (E), MUMBAI 400 059. / VS. COMMISSIONER OF INCOME TAX , WARD-8(1)(3), MUMBAI. (, % & ./PAN :AAACD 8022 E ( ,- /APPELLANT) .. ( ./,- / RESPONDENT) ,- 0 1 & / APPELLANT BY : SHRI HARIOM TULSIYAN ./,- 0 1 & / RESPONDENT BY : SHRI ASHUTOSH RAJHANS, DR & 0 2% /DATE OF HEARING :9.4.2013 3+ 0 2% /DATE OF PRONOUNCEMENT : 15.5.2013 '4 '4 '4 '4 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 12.10.2011 IS AGAINST THE ORDER OF THE CIT (A)-16, MUMBAI DATED 20.7.2011 FOR THE ASSESSME NT YEAR 2004-05. 2. IN THIS APPEAL, ASSESSEE RAISED THE ONLY EFFECTIV E GROUND WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT (A)-16, MUMBAI ERRED IN CONFIRMING THE DEDUCTION U/S 80-HHC AT RS. 29,40,12 3/- INSTEAD OF RS. 79,10,620/-. 3. DURING THE PROCEEDINGS BEFORE US AND AT THE OUTS ET, SHRI HARIOM TULSIYAN, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSE E CLAIMED DEDUCTION U/S 80HHC OF THE ACT IN RESPECT OF DEPB RECEIPTS. IN THE EX-PARTE ASSESSMENT U/S 144 OF THE ACT, AO MADE CERTAIN ADDITIONS. THE ADDITION BY WAY OF REDUCTION OF DEDUCTION U/S 80HHC OF THE ACT FROM RS. 79,10,621/- TO RS.17,43,1 56/- IS ONE SUCH ADDITION. 2 AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE THE FIRST APPELLATE AUTHORITY. CIT (A) ALLOWED THE CLAIM OF THE ASSESSEE IN RESPEC T OF THE DEDUCTION U/S 80HHC OF THE ACT. HOWEVER, ITAT IN THE FIRST ROUND SET ASIDE THE ISSUE TO THE FILES OF THE AO FOR FRESH ADJUDICATION VIDE ITS ORDER DATED 28.3.20 08. THE MATTER TRAVELLED TO THE HONBLE BOMBAY HIGH COURT WHO HELD THAT THE ISSUE S HOULD BE DECIDED IN THE LIGHT OF THEIR JUDGMENT IN THE CASE OF CIT VS. KALPATARU COL OURS AND CHEMICALS IN ITXA(L) 2887 OF 2009. IN THE SECOND ROUND IE IN THE SET ASI DE ASSESSMENT PROCEEDINGS, AO ASKED THE ASSESSEE TO SUBSTANTIATE HIS CLAIM WITH R EGARD TO THE APPLICABILITY OF THE PROVISO TO SECTION 80HHC OF THE ACT. FINALLY, AO H ELD THAT THE TURNOVER OF THE ASSESSEE EXCEEDED RS. 10 CR AND THE ASSESSEE DID NO T RESPOND WITH REGARD TO THE EXERCISE OF THE OPTION WITH REGARD TO EXERCISE OF O PTION BETWEEN THE DUTY DRAW BACK OR DEPB CLAIM AND DID NOT FILE OTHER RELEVANT DETAI LS. FURTHER, THE ASSESSEE HAS NOT MET ALL THE CONDITIONS SPECIFIED IN SECTION 80HHC O F THE ACT WITH REGARD TO THE CLAIM OF DEDUCTION U/S 80HHC OF THE ACT ON THE PROFIT EAR NED ON THE SALE OF DEPB CREDITS. ACCORDINGLY, AO ALLOWED DEDUCTION U/S 80HHC OF THE ACT ONLY TO THE EXTENT OF RS. 29,40,123/- INSTEAD OF RS. 79,10,621/-. 4. AGGRIEVED WITH THE SAME, ASSESSEE FILED AN APPEA L BEFORE THE FIRST APPELLATE AUTHORITY. DURING THE PROCEEDINGS, ASSESSEE REQUEST ED FOR GRANT OF DEDUCTION U/S 80HHC IN FULL AND IN ACCORDANCE WITH THE CALCULATIO N SHOWN IN THE FORM NO.10CCA. ON HEARING THE ASSESSEE, CIT (A) DISMISSED THE APPE AL OF THE ASSESSEE RELYING ON THE BINDING JUDGMENT OF THE HONBLE BOMBAY HIGH COU RT IN THE CASE OF M/S. KALPATARU COLOURS AND CHEMICALS IN ITXA (L) 2287 OF 2009 DATED 28/29 TH JUNE, 2010. THE SPECIAL BENCH DECISION IN THE CASE OF TOPMAN EX PORTS LTD STAND REVERSED BY THE SAID JUDGMENT. 5. WITH THE BACKGROUND OF THE ABOVE, ASSESSEE FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. DURING THE PROCEEDINGS BEFORE US, IN LEMINE, SHRI HARIOM TULSIYAN, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE JUDGMEN T OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA) WAS SET ASIDE BY THE HONBLE SUPREME COURT BY VIRTUE OF JUDGMENT IN THE CASE OF TOPMAN EXOPORTS VS. 3 CIT [2012] 205 TAXMAN 119/18. IN VIEW OF THE SAID B INDING JUDGMENT OF THE APEX COURT, NOW THE ASSESSEE IS ENTITLED TO DEDUCTION ON THE DEPB RECEIPTS. 6. ON THE OTHER HAND LD DR RELIED DUTIFULLY ON THE ORDER OF THE REVENUE AUTHORITIES. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US AND ALSO THE JUDGMENT OF HONBLE SUPREME COURT IN T HE CASE OF TOPMAN EXPORTS VS. CIT (SURPA). IN VIEW OF THE BINDING JUDGMENT OF HO NBLE SUPREME COURT IN TOPMAN EXPORTS (SUPRA), WHEREBY THE JUDGMENT IN THE CASE O F KALPATARU COLOURS & CHEMICALS (SUPRA) IS NO LONGER A GOOD LAW, WE ARE OF THE CONS IDERED OPINION THAT THE ASSESSEE IS ENTITLED TO GET THE RELIEF AND THEREFORE, THE OR DER OF THE CIT (A) ON THIS ISSUE REQUIRED TO BE REVERSED. CONSEQUENTLY, WE DIRECT TH E AO TO GRANT DEDUCTION U/S 80HHC OF THE ACT IN RESPECT OF THE IMPUGNED RECEIPT S STRICTLY IN ACCORDANCE WITH THE SAID JUDGMENT OF THE APEX COURT IN THE CASE OF TOPM AN EXPORTS, SUPRA. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . 5 26 ) *52 0 ( 7 2 0 82 9 ORDER PRONOUNCED IN THE OPEN COURT ON 15/5/2013. '4 0 3+ % :'6 15/5/2013 0 ; SD/- SD/- (D. MANMOHAN) (D. KARUNAKARA RAO) /VICE PRESIDENT % &'( / ACCOUNTANT MEMBER MUMBAI; :' 15/5/2013. . ) . & ./ OKK , SR. PS '4 0 .)2<= >=+2 /COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. ? ( ) / THE CIT(A)- 4. ? / CIT 5. = @; .)2) , , / DR, ITAT, MUMBAI 4 6. ;!* A / GUARD FILE. &/=2 .)2 //TRUE COPY// '4 & '4 & '4 & '4 & / BY ORDER, / & & & & 8 8 8 8 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI