LAXMI ENTERPRISES, MUMBAI V. ACIT CIR 13(2), MUMBAI

ITA 7963/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71089 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-09-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Section: 143(3); 80HHC

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , & ./I.T.A. NO.7963 AND 7964/MUM/2011 ( / ASSESSMENT YEARS:2001-02 & 2002-03) LAXMI ENTERPRISES, 170/172, SAMUEL STREET, MASJID BANDAR, MUMBAI-400009 / VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-13(2), ROOM NO.418, 4 TH FLOOR, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ./ ./PAN/GIR NO. : AAAFL2162Q ( / APPELLANT) .. ( / RESPONDENT) / APPELLANT BY : SHRI JITENDRA SANGHVI /RESPONDENT BY : SHRI SURENDRA KUMAR ' / DATE OF HEARING : 23.9.2013 ' /DATE OF PRONOUNCEMENT : 23.9.2013 / O R D E R PER B.R.MITTAL, JM: THESE TWO APPEALS ARE FILED BY ASSESSEE FOR ASSESSM ENT YEARS 2001-02 AND 2002-03 AGAINST ORDERS OF LD. CIT(A) BOTH DATED 12 .9.2011 ON COMMON GROUNDS I.E. RELATING TO DEDUCTION U/S 80HHC IN RESPECT OF PROC EEDS ON SALE OF DEPB LICENSE OF RS.7,89,735/- IN ASSESSMENT YEAR 2001-02 AND OF R S.8,71,645/- IN ASSESSMENT YEAR 2002-03. 2. RELEVANT FACTS ARE THAT BOTH THESE APPEALS ARE A RISING OUT OF ASSESSMENT ORDER PASSED BY AO U/S 143(3) READ WITH SECTION 254 OF TH E INCOME TAX ACT, 1961 (THE ACT). I.T.A. NO.7963 AND 7964/MUM/2011 2 3. AT THE TIME OF MAKING ORIGINAL ASSESSMENTS, THE AO DENIED DEDUCTION U/S 80HHC OF THE ACT ON SALE OF DEPB LICENSE. LD. CIT(A) AL SO CONFIRMED THE DISALLOWANCE MADE BY AO. HOWEVER, TRIBUNAL BY ITS ORDERS DATED 18.12.2 009 FOR ASSESSMENT YEAR 2001-02 AND DATED 26.2.2010 FOR ASSESSMENT YEAR 2002-03 RES TORED THE MATTER TO THE FILE OF AO WITH A DIRECTION TO DECIDE THE ISSUE OF DEDUCTIO N U/S 80HHC ON SALE OF DEPB LICENSE IN THE LIGHT OF THE DECISION OF SPECIAL BENCH OF TRIBUNAL IN THE CASE OF TOPMAN EXPORTS AND KALPATARU COLOURS & CHEMICALS REPORTED IN 318 ITR (AT) 87. AO WHILE GIVING EFFECT TO THE ORDER(S) OF ITAT FOUND THAT THE HONBLE B OMBAY HIGH COURT OVERRULED THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CA SE OF KALPATARU COLOURS & CHEMICALS (233 CTR 313) AND CONSIDERED THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING. HENCE, THE AO DENIED DEDUCTION U/S 80HHC TO THE ASSESSEE IN RESPECT OF SALE PROCEEDS OF DEPB LICENSE FOR BOTH THE ASSE SSMENT YEARS UNDER CONSIDERATION. LD. CIT(A) BY IMPUGNED ORDERS ALSO CONFIRMED THE AC TION OF AO. HENCE THESE APPEALS BY THE ASSESSEE. 4. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT TH E DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS & CHE MICALS (SUPRA) HAS SINCE BEEN OVERRULED BY THE HONBLE APEX COURT VIDE JUDGMENT D ATED 8.2.2012 PASSED IN THE CASE OF TOPMAN EXPORTS VS. CIT, (2012) 342 ITR 49 (SC) A ND SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE AO TO DECIDE THE ISSUE OF DEDUC TION U/S 80HHC IN RESPECT OF SALES OF DEPB LICENSE IN THE LIGHT OF SAID DECISION OF HON BLE APEX COURT. LD. DR ALSO AGREED WITH THE ABOVE SUBMISSIONS OF LD. AR. 5. WE AGREE WITH THE LD. AR THAT THE DECISION OF TH E HONBLE JURISDICTIONAL HIGH COURT HAS SINCE BEEN REVERSED BY THE HONBLE APEX COURT IN RESPECT OF SALE PROCEEDS OF DEPB LICENSE FOR CONSIDERING THE DEDUCTION U/S 80H HC OF THE ACT IN THE CASE OF TOPMAN EXPORT (SUPRA) AND ACCORDINGLY, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE AO FOR BOTH THE ASSESS MENT YEARS UNDER CONSIDERATION WITH A DIRECTION TO DECIDE THE SAME AFRESH. HENCE GROUN DS OF APPEAL TAKEN BY ASSESSEE FOR BOTH ASSESSMENT YEARS ARE ALLOWED FOR STATISTICAL P URPOSE BY RESTORING THE ISSUE TO AO TO DECIDE DEDUCTION ALLOWABLE U/S 80HHC IN RESPECT OF SALE PROCEEDS OF DEPB LICENSE IN THE LIGHT OF THE DECISION OF THE HONBLE APEX COUR T IN THE CASE OF TOPMAN EXPORT (SUPRA). I.T.A. NO.7963 AND 7964/MUM/2011 3 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATI VES OF BOTH THE PARTIES AND AFTER CONCLUSION OF HEARING O N 23RD SEPTEMBER, 2013 ' ) * 23RD SEPTEMBER, 2013 SD SD ( /SANJAY ARORA) ( . . 0 /B.R.MITTAL) / ACCOUNTANT MEMBER ' / JUDICIAL MEMBER MUMBAI; . . ./ SRL , SR. PS ) *+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. 2 4 , ' 4 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI