HARISH EXPORTER, MUMBAI V. DCIT 13(1), MUMBAI

ITA 7452/MUM/2010

• Counselvise Citation: 745219914 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 01-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M RAJAN
• Section: 80HHC; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO. 7452/MUM/2010 (ASSESSMENT YEAR: 2004-05) M/S. HARISH EXPORTERS D C I T - 13(1) 1ST FLOOR, DCOR HOUSE AAYAKAR BHAVAN, M.K. ROAD 212/216, SHERIFF DEOJI STREET VS. MUMBAI 400020 MUMBAI 400003 PAN - AAAFH 0176 Q APPELLANT RESPONDENT APPELLANT BY: MISS MRUGAKSHI JOSHI RESPONDENT BY: SHRI M. RAJAN DATE OF HEARING: 13.06.2012 DATE OF PRONOUNCEMENT: 13.06.2012 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.09.2010 PASSED BY THE CIT(A) 24, MUMBAI AND IT P ERTAINS TO A.Y. 2004-05. 2. THE FOLLOWING GROUNDS WERE URGED BY THE ASSESSEE: - 1. THE LD. CIT (APPEALS) ERRED IN NOT GRANTING BEN EFIT ON DEPB AND NOT FOLLOWING SPECIAL BENCH IN THE CASE OF TOPMAN E XPORTS AND ERRED IN PLACING RELIANCE ON BOMBAY HIGH COURT DECI SION IN THE CASE OF KALPATARU COLOUR. 2A) THE LEARNED CIT (A) ERRED IN ENHANCING THE ASSE SSMENT BY DIRECTING THE AO TO APPLY PROVISIONS OF RULE 8D WHE N THE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE HAD HELD THAT RULE 8D WAS NOT RETROSPECTIVE AND MORESO WHEN THE A O HAD ALREADY MADE A REASONABLE DISALLOWANCE U/S. 14A. B) THE LEARNED CIT(A) FURTHER ERRED IN NOT CONSID ERING THAT UNDER RULE 8D THE DISALLOWANCE WOULD BE RS.7,508/- WHILE THE AO HAD ALREADY MADE DISALLOWANCE OF RS.5,165/- U/S. 14A. 3. AT THE TIME OF HEARING THE LEARNED COUNSEL APPEARIN G ON BEHALF OF THE ASSESSEE SUBMITTED THAT GROUND NO. 1 STANDS SQUAREL Y COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISIO N OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT [2012] 247 CTR 353. ITA NO. 7452/MUM/2010 M/S. HARISH EXPORTERS 2 4. THE LEARNED D.R. FAIRLY ADMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 5. RESPECTFULLY FOLLOWING THE SAME WE DIRECT THE AO TO ALLOW THE BENEFIT UNDER SECTION 80HHC OF THE ACT. 6. VIDE GROUND NO. 2 ASSESSEE CONTENDS THAT RULE 8D OF I.T. RULES IS NOT APPLICABLE TO THE ASSESSMENT YEAR UNDER CONSIDERATI ON SINCE IT HAS PROSPECTIVE OPERATION IN THE LIGHT OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MFG. CO. LTD. VS. DCIT (328 ITR 81). 7. WE HAVE HEARD THE LEARNED D.R. IN THIS REGARD AND C AREFULLY PERUSED THE RECORD. 8. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL, RULE 8D IS NOT APPLICABLE RETROSPECTIVELY IN WHICH EVENT THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ASPECT DESERVES TO BE SET ASIDE. IN THE RESULT, WE UPHOLD THE DISALLOWANCE MADE BY THE AO UNDER SECTION 14A OF TH E ACT. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JUNE 2012. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 13 TH JUNE 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 24, MUMBAI 4. THE CIT 13, MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.