Audichem (India) Ltd., Ahmedabad V. The ACIT, Circle-1, Ahmedabad

ITA 746/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94542 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-10-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 08-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 142(1); 80HHC; 80IB; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI S. S. GODARA, JM, & MANISH BORAD, AM. ITA NO.746/AHD/2011 ASST. YEAR: 2001-02 AUDICHEM (INDIA) LTD, (NOW KNOWN AS AKSHAR CHEM (INDIA) LTD., 36, VAKIL CHAMBERS, NR. NEHRU BRIDGE CORNER, KHANPUR ROAD, LAL DARWAJA, AHMEDABAD. VS DY. COMMISSIONER OF INCOME- TAX, CIRCLE-1, AHMEDABAD. (APPELLANT) (RESPONDENT) PA NO.AABCA2805M APPELLANT BY SHRI SUNIL TALATI, AR RESPONDENT BY SHRI RAJDEEP SINGH, SR.DR DATE OF HEARING: 8/10/2015 DATE OF PRONOUNCEMENT:14/10/2015 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)-VI, AHMEDABAD, VIDE HIS ORDER DATED 30 TH DECEMBER, 2010. ASSESSMENT WAS FRAMED U/S 143 (3) R.W.S. 254 OF INC OME-TAX ACT, 1961 (IN SHORT THE ACT) FOR AY 2001-02 BY DY. CIT, CIR-1, AHMEDABAD, ON 24.12.2009. ASSESSEE HAS RAISED FOLLOWING GROUND S OF APPEAL :- 1) THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS IN HOLDING THAT THE AOS ACTION IN DENYING THE DEDUCTION ON DEPB INCOME U/S 80HHC WAS CORRECT. ON THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE GROU ND OF APPEAL ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 2 REGARDING DEDUCTION U/S 80HHC ON EXPORT INCENTIVE. THE SAME BE SO HELD NOW AND DEDUCTION BE ALLOWED AS CLAIMED. 2) THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT ALLOWING THE GROUND OF THE APPELLANT THAT DEDUCTION U/S 80HHC WA S ALLOWABLE AS CLAIMED IN THE RETURN OF INCOME CONSID ERING THE EXPORT INCENTIVE AS INCOME U/S 28 OF THE INCOME-TAX ACT. 3) THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN HOLD ING THAT AS THE EXPORT TURNOVER EXCEEDED RS.10 CRORES, THE APPELLAN T WAS NOT ENTITLED TO ANY DEDUCTION U/S 80HHC IN RESPECT OF D EPB INCOME. 4) THE LD. CIT(A) OUGHT TO HAVE ORDERED TO GRANT TH E DEDUCTION U/S 80HHC AS CALCULATED BY THE APPELLANT THE SAME BEING ALLOWABLE. THE SAME BE SO HELD NOW AND DEDUCTION BE ORDERED TO BE ALLOWED FULLY AS CLAIMED. 5) THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE APPEAL IN TOTO. 6) THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN LAW AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS. IT IS SUBMITTED TH AT THE SAME BE HELD SO NOW. 7) YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND/OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.2,65, 710/- AFTER CLAIMING DEDUCTION UNDER SECTION 80HHC OF THE ACT FOR RS.63, 60,960/-. AO COMPLETED THE ASSESSMENT ON 26.3.2004 DENYING THE C LAIM OF ASSESSEE U/S 80HHC OF THE ACT AT RS.66,26,670/-. AO HELD THAT THE EXPORT INCENTIVES OF RS.305 CRORES WAS NOT COVERED U/S 28(IIIA) OF THE ACT AND THEY WERE NOT COVERED IN SUB-SECTIONS(IIIB) AND (IIIC) OF SEC.28 OF THE ACT. FURTHER IT WAS OBSERVED BY THE AO THAT THE PROFITS DERIVED ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 3 FROM EXPORT REMAINED NEGATIVE AND THEREFORE NO DEDU CTION U/S 80HHC OF THE ACT WAS ALLOWED. 3. THE CIT(A) VIDE ORDER DTD.23.4.2004 DIRECTED THE AO TO ALLOW DEDUCTION U/S 80HHC OF THE ACT ON EXPORT INCENTIVE AFTER IGNORING THE LOSSES. BUT NO RELIEF WAS GRANTED BY AO U/S 80HHC V IDE HIS ORDER DATED 12/10/2004 BECAUSE THE AO WAS OF THE VIEW THA T LD. CIT(A) HAD BEEN SILENT OVER THE ISSUE OF DEPB INCOME BEING EXP ORT INCENTIVE OR NOT BY THE SEC.28(IIIA), (IIIB) & (IIIC) OF THE ACT . 4. AGGRIEVED WITH THE DECISION, THE ASSESSEE PREFER RED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) VIDE ORDER DTD.28. 1.2005 HELD THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION ON PROFIT E ARNED ON INCENTIVE AND DIRECTED THE AO TO ALLOW THE CLAIM OF THE ASSES SEE AS PER DIRECTION GIVEN BY THE CIT(A) IN HIS ORDER DTD.23.8 .2004. 5. THE REVENUE WENT IN APPEAL BEFORE THE TRIBUNAL A GAINST THE ORDER OF THE CIT(A) DTD.23.8.2004. THE CO-ORDINATE BENCH VIDE ITS ORDER IN ITA NO.3185/AHD/2004 DTD.31.3.2008 HELD AS UNDER :- 2. THE ONLY DISPUTE RAISED IN THE APPEAL AGAINST THE ORDER OF THE CIT(A) IS DIRECTING THE AO TO ALLOW DEDUCTION U /S 80HHC OF THE INCOME-TAX ACT, 1961 (ACT) ON EXPORT INCENTIVE AFTER IGNORING THE LOSS. 3. THIS ISSUE NOW STANDS COVERED AGAINST THE ASSES SEE BY THE DECISION OF THE SUPREME COURT IN THE CASE OF IP CA LABORATORIES 266 ITR 521 (SC) AND ALSO THE AMENDMEN T IN SECTION 80HHC PROVIDING FOR CONSIDERATION OF THE LO SS WHILE ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 4 COMPUTING THE DEDUCTION U/S 80HHC. WE, ACCORDINGLY, VACATE THE ORDER OF THE CIT(A) AND RESTORE THAT OF THE AO. 4. IN THE RESULT, REVENUES APPEAL STANDS ALLOWED. THE REVENUE WENT IN APPEAL BEFORE THE TRIBUNAL AGA INST THE ORDER OF CIT(A) DTD.28.1.2006. THE CO-ORDINATE BENC H, AHMEDABAD IN ITA NO.1230/AHD/2005 DTD.12.09.2008 HELD AS UNDE R :- 3. ..WE RESTORE THIS ISSUE TO THE FILE OF AO WIT H A DIRECTION THAT THE AO SHALL RE-COMPUTE THE DEDUCTION U/S 80HH C. IN VIEW OF THE AMENDMENT BY TAXATION LAWS (AMENDMENT) ACT, 2005 AFTER GIVING PROPER AND REASONABLE OPPORTUNITY OF H EARING TO THE ASSESSEE. IT IS THEREFORE SEEN THAT HONBLE ITAT HAS SET ASI DE THE MATTER FOR RECOMPUTATION IN VIEW OF THE AMENDMENT PROVISIO N. THEREFORE, A NOTICE U/S 143(2) OF THE I.T. ACT WAS ISSUED ON 15/ 5/2009 WHICH WAS DULY SERVED ON THE ASSESSEE. NOTICE U/S 142(1) OF T HE I.T. ACT WAS ISSUED ON 5/11/2009. THE ASSESSEE VIDE THE SUBMISSION DTD.16.11.2009 SU BMITTED THAT CONSTITUTIONAL VALIDITY OF TAXATION LAWS (AMEN DMENT) ACT, 2005 HAS BEEN CHALLENGED BY THE EXPORTERS BEFORE THE HON BLE SUPREME COURT. THE ASSESSEE HAS FORWARDED VARIOUS ARGUMENTS AND THEREFORE REQUESTED THAT THE MODIFICATION OF CALCULATION BE N OT MADE TILL THE PETITION IS DECIDED BY THE HONBLE SUPREME COURT. H OWEVER, THE PROCEEDINGS IN THE MATTER SET ASIDE BY THE CO-ORDIN ATE BENCH CANNOT BE KEPT IN ABEYANCE BASED ON THE ABOVE REQUEST OF T HE ASSESSEE. ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 5 6. HOWEVER, THEREAFTER THE AO ASSESSED THE INCOME A T RS.66,26,090 AFTER GIVING EFFECT TO THE ORDER OF CO -ORDINATE BENCH DATED 31.3.2008 IN ITA NO.3185/AHD/2004, BY GIVING FOLLOWING OBSERVATIONS :- I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS OF T HE ASSESSEE. THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE. T HE ASSESSEE, AMONG OTHER CASE LAWS, HAS RELIED ON THE DECISION O F HONBLE ITAT, MUMBAI, SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS . HOWEVER, THE SAME IS NOT ACCEPTABLE IN VIEW OF THE RECENT DECISI ON OF HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT. DEDUCTION U/S 80HHC IS AVAILABLE ONLY TO PROFITS D ERIVED FROM EXPORT GOODS OR MERCHANDISE WHICH IS RECEIVED IN CO NVERTIBLE FOREIGN EXCHANGE AND NOT IN RESPECT OF INCIDENTAL INCOME ON CREDIT ARISING THROUGH GOVERNMENT SCHEME. THE DEDUCTION U/S 80HHC( 3) OF THE ACT DOES NOT COVER PROFIT ON CREDIT OF DEPB AND SUCH PR OFITS ARE THEREFORE, NO ELIGIBLE FOR DEDUCTION U/S 80HHC. THE ASSESSEE HAS CREDITED RS.3,05,09,275/- IN P & L ACCOUNT IN RESPE CT OF DEPB INCOME. AS PER AMENDED PROVISIONS OF SEC.80HHC IN O RDER TO ARRIVE AT ADJUSTED PROFITS OF BUSINESS 90% OF DEPB INCOME I.E. RS. 2,74,56,248/- HAS TO BE REDUCED. AS THE ASSESSEE HA S NOT DEBITED ANY AMOUNT IN THE P & L ACCOUNT CORRESPONDING TO DE PB INCOME. THUS 90% OF THE ENTIRE AMOUNT OF RS.3,05,09,275/- C REDITED IN THE P & L A/C HAS TO BE REDUCED TO ARRIVE AT ADJUSTED PRO FITS FOR THE PURPOSE OF CALCULATING DEDUCTION U/S 80HHC. ALSO, AS THE TURNOVER OF THE ASSESSEE COMPANY EXCE EDS RS.10 CRORE AND THE CONDITIONS LAID DOWN IN AMENDED PROVI SIONS OF SEC.80HHC ARE NOT SATISFIED. PROFITS ELIGIBLE FOR D EDUCTION U/S 80HHC WILL NOT BE INCREASED BY 90% OF THE AMOUNT COVERED U/S 28 (III)(D). THUS, IN THE LIGHT OF THE ABOVE MENTIONED FACTS TH E DEDUCTION IN RESPECT OF DEPB INCOME U/S 80HHC IS DISALLOWED TO T HE ASSESSEE. ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 6 SUBJECT TO ABOVE REMARKS, TOTAL INCOME OF THE ASSE SSEE IS ASSESSED AS GIVEN BELOW :- TOTAL INCOME AS PER ORDER DTD.3.10.2008 GIVING EFFECT TO ORDER OF THE ITAT DTD.31.3.3008 IN ITA NO.3185/AHD/2004 RS.66,26,690 TOTAL INCOME DETERMINED AS ABOVE REMAINS UNCHANGED ASSESSED INCOME RS.66,26,690 7. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE CI T(A) WHO REJECTED THE CLAIM OF ASSESSEE BY OBSERVING AS UNDE R :- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, ASSES SMENT ORDER AND APPELLANTS SUBMISSION. APPELLANTS CLAIM IS BA SED ON ITAT, MUMBAI SPECIAL BENCH DECISION IN THE CASE OF TOPMAN EXPORTS. HOWEVER, THIS DECISION IS NOW REVERSED BY BOMBAY HI GH COURT IN THE CASE OF KALPATARU POWER REPORTED IN 328 ITR 451. AS PER THIS DECISION THE ENTIRE SALE PROCEEDS OF DEPB HAVE TO BE REDUCED FROM PROFIT OF BUSINESS FOR COMPUTING DEDUC TION UNDER SECTION 80HHC. IN VIEW OF THIS, THE APPELLANTS CLA IM IS NOT JUSTIFIED AND THE SAME IS REJECTED. 8. AGGRIEVED, THE ASSESSEE IS NOW IN FURTHER APPEAL BEFORE THE TRIBUNAL. THE LD. AR OF THE ASSESSEE MADE FOLLOWING SUBMISSIONS :- ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 7 THE KEY ISSUE IN THIS APPEAL IS WITH REGARD TO DE DUCTION CLAIMED UNDER THIRD PART IN RESPECT OF EXPORT INCE NTIVES. THE LD. AO HAS RELIED ON THE DECISION OF LIBERTY INDIA VS. CIT (SC) WHILE DISALLOWING THE DEDUCTION CLAIMED U/S 80HHC IN RESP ECT OF DEPB INCOME. IT IS SUBMITTED THAT THIS RATIO IS NOT AT A LL APPLICABLE IN OUR CASE AS THE SAME IS IN CONTEXT OF DEDUCTION U/S 80I A & 80IB AND NOT OF DEDUCTION U/S 80HHC WHERE IN THE PROVISO FIRST A ND THIRD TO SUB- SECTION (3) TO SECTION 80HHC SPECIFICALLY INCLUDES AND STATES TO INCREASE THE DEDUCTION BY 90% OF DEPB AND PROFIT ON SALE OF DEPB. THE LD. CIT(A) HAS RELIED ON THE DECISION OF THE HO BLE HIGH COURT IN THE CASE OF KALPATARU COLORS & CHEMICALS WHICH OV ER-RULED THE DECISION OF THE HONBLE INCOME-TAX APPELLATE TRIBUN AL, MUMBAI (SPECIAL BENCH) IN THE CASE OF TOPMAN EXPORTS. TH E DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLORS & CHEMICALSHAS LOST ITS EVIDENTIARY VALUE AFTER THE RECENT JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EX PORTS VS. CIT REPORTED AT (2012) 18 TAXMANN.COM 120 (SC). THE COP Y OF DECISION IS ENCLOSED HEREWITH AS PER PAGE NO.1 TO 3. THE HONBL E APEX COURT, IN THE SAID JUDGMENT, HAS THROWN SUBSTANTIAL LIGHT ON THE PROVISIONS OF SECTION 80HHC WHICH HAS BEEN A COMPLICATED ISSUE SI NCE ITS VERY INSERTION. FURTHER, S CAN BE SEEN FROM PAGE 6 OF TH E ASST. ORDER PASSED U/S 143(3) RWS 254 DATED 24.12.2009 THE LD. AO HAS DENIED THE CLAIM OF DEDUCTION UNDER THIRD PART BECAUSE THE APPELLANTS TURNOVER EXCEEDS RS.10 CRORES AND THE APPELLANT DOE S NOT FULFILL THE TWO CONDITIONS AS LAID DOWN IN THIRD PROVISO TO SEC TION 80HHC(3). THE SAID STAND TAKEN BY THE LD. AO IS TOTALLY INCORRECT WHICH IS SUBSTANTIATED IN THE SUBSEQUENT PARAS. ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 8 THE PROVISIONS PERTAINING TO CALCULATION OF ELIGIB LE DEDUCTIONUNDER SECTION 80HHC ARE COVERED VIDE SUB-SECTION (3) OF S ECTION 80HHC. THE SAID SUB-SECTION (3) OF SECTION 80HHC IS FOLLOW ED BY FOUR PROVISOS WHICH PROVIDE FOR ENHANCEMENT OF ELIGIBLE PROFITS (I.E. EXPORT INCENTIVES AS PER THIRD PART ABOVE) SUBJECT TO FULF ILLMENT OF CERTAIN CONDITIONS AS SPECIFIED OVER THERE. FIRST PROVISO P ROVIDES FOR ENHANCEMENT OF ANY SUM COVERED VIDE SECTIONS 28(III A), 28(IIIB) & 28(IIIC) IN PROPORTION OF EXPORT TURNOVER TO THE TO TAL TURNOVER. NO CONDITION HAS BEEN PRESCRIBED UNDER FIRST PROVISO F OR ENHANCEMENT OF SUMS COVERED VIDE 28(IIIA), 28(IIIB) AND 28(IIIC). HENCE IT CAN BE CLAIMED BY ANY ASSESSEE WHO IS ELIGIBLE FOR CLAIMIN G DEDUCTION U/S 80HHC. HERE, IT NEEDS TO BE TAKEN NOTE OF THAT FIRS T PROVISO DEALS WITH ANY SUM COVERED VIDE SECTION 28(IIIA), 28(IIIB) & 2 8(IIIC) AND NOT WITH ANY SUM COVERED VIDE SECTION 28(IIID) AND 28(IIIE). SECTION 28(IIIB) DEAL WITH CASH ASSISTANCE (BY WHATEVER NAME CALLED ) RECEIVED OR RECEIVABLE BY ANY PERSON AGAINST EXPORTS UNDER ANY SCHEME OF THE GOVERNMENT OF INDIA WHEREAS SECTION 28(IIID) DEALS WITH ANY PROFIT ON TRANSFER OF DEPB. HENCE THE BENEFIT OF ENHANCEM ENT OF ELIGIBLE PROFIT AS REGARDS FACE VALUE OF DEPB [BEING IN TH E NATURE OF CASH ASSISTANCE COVERED VIDE SECTION 28(IIIB)] SHALL BE AVAILABLE WITHOUT ANY CONDITION AND THIS PROPOSITION HAS BEEN SETTLED BY THE HONBLE APEX COURT IN THE JUDGMENT PRONOUNCED IN THE CASE O F TOPMAN EXPORTS(SUPRA). HENCE THE APPELLANT IS LEGALLY ELI GIBLE FOR ENHANCEMENT OF ELIGIBLE DEDUCTION PROPORTIONALLY WI TH REGARD TO THE FACE VALUE OF DEPB AS CLAIMED. ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 9 COMING TO ENHANCEMENT OF ELIGIBLE DEDUCTION WITH RE GARD TO PROFITS ON SALE OF DEPB AS PER SECTION 28(IIID) THE SAME I S COVERED VIDE SECOND AND THIRD PROVISOS TO SECTION 80HHC(3). SECO ND PROVISO TO SECTION 80HHC SHALL APPLY IN CASE WHERE THE EXPORT TURNOVER OF AN ASSESSEE DOES EXCEED RS.10 CRORES WHERE AS THIRD PR OVISO TO SECTION 80HHC SHALL APPLY IN CASE OF ASSESSEE WHOSE EXPORT TURNOVER EXCEEDS RS.10 CRORES. AT THE APPARENT, THE APPELLAN T HAS LOSS ON SALE OF DEPB. HOWEVER, FOR ENHANCEMENT OF ELIGIBLE DEDUCTION THE APPELLANT NEEDS TO RESORT TO EITHER SECOND PROVISO OR THIRD PROVISO TO SECTION 80HHC. SECOND PROVISO IS NOT APPLICABLE TO THE APPELLANT AS THE APPELLANT HAS EXPORT TURNOVER EXCEEDING RS.10 C RORES. THIRD PROVISO PRESCRIBES TWO CONDITIONS WHICH NEED TO BE SATISFIED IF THE APPELLANT IS LOOKING FORWARD TO GET THE BENEFIT UND ER SAID PROVISO. AS THE APPELLANT DOES NOT FULFILL THE SAID TWO CONDITI ONS, IT CANNOT AVAIL THE SAID BENEFIT. 9. THE LD. AR ALSO SUBMITTED THAT FACTS OF THE CASE OF ASSESSEE ARE SIMILAR TO THE FACTS DISCUSSED BY THE CO-ORDINA TE BENCH IN ITS ORDER DATED 24.1.2014 IN ITA NO.2951/AHD/2010 FOR AY 2003 -04 IN THE CASE OF ASAHI SONGWON COLOUR LTD. VS. ACIT (COPY IS PLAC ED ON RECORD). 10. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ERS OF AUTHORITIES BELOW. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AS WELL AS GONE THROUGH THE RECORDS AVAILABLE AND THE CASE LAWS CITED BEFOR E US. WE FIND THE ONLY ISSUE TO BE ADJUDICATED IS THAT WHETHER THE AS SESSEE IS ENTITLED ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 10 FOR DEDUCTION UNDER SECTION 80HHC IN RESPECT OF DEP B INCOME. AFTER CONSIDERING THE SUBMISSIONS, WE FIND FORCE IN THE S UBMISSIONS OF LD. AR THAT LD. AO WAS NOT CORRECT IN DISALLOWING THE D EDUCTION CLAIMED UNDER SECTION 80HHC IN RESPECT OF DEPB INCOME BECAU SE IN PROVISO (I) AND (III) TO SUB-SEC.(3) TO SECTION 80HHC SPECI FICALLY INCLUDES AND STATES TO INCREASE THE DEDUCTION U/S 80HHC BY 90% P ROFIT ON SALE OF DEPB. FURTHER IN THE RECENT JUDGEMENT IN THE CASE O F TOPMAN EXPORTS (SUPRA), THE HONBLE SUPREME COURT HAS THRO WN SUBSTANTIAL LIGHT ON THE PROVISIONS OF SECTION 80HHC OF THE ACT . FURTHER GOING THROUGH THE ORDER IN ITA NO.2951/AHD/2010 IN THE C ASE OF ASAHI SONGWON COLOUR LTD. VS. ACIT, WHEREIN SIMILAR GROUN DS OF APPEAL HAVE BEEN ADJUDICATED, THE CO-ORDINATE BENCH HELD A S UNDER :- 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE HONBLE SUPREME COURT HAD D ECIDED IN CASE OF TOPMAN EXPORTS (SUPRA) THAT PROFIT ON SALE OF DEPB LICENSE IS TO BE ASSESSED ON NET NOT THE ENTIRE SAL E PROCEEDS OF DEPB LICENSE. THEREFORE, A.O. IS DIRECTED TO CALCUL ATE THE PROFIT ON SALE OF DEPB AS PER THE DECISION OF HONBLE SUPR EME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). ACCORDINGLY, MATTER IS AGAIN SET ASIDE TO THE AO. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION TAKEN BY THE CO- ORDINATE BENCH, SET ASIDE THE MATTER TO THE FILE OF AO TO RE-COMPUTE THE DEDUCTION UNDER SECTION 80HHC AS PER THE DECISI ON OF HONNLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) . ITA NO. 746/AHD/2011 ASST. YEAR 2001-02 11 12. IN THE RESULT, ASSESEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14/10/2015 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 14/10/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 8/10/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 9/10/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 14/10/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: