BANBURY IMPEX P. LTD, MUMBAI V. AIT 9(1), MUMBAI

ITA 8473/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9519 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 14-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH A THAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI I. P. BANSAL, J.M. AND SHRI SANJAY AROR A, A.M. ITA NO.: 8473/MUM/2011 ASSESSMENT YEAR: 2002-03 BANBURY IMPEX PVT. LTD. 40, APOORVA IND. ESTATE, MAKWANA RD., ANDHERI-KURLA RD, ANDHERI(E), MUMBAI-400 059 [ PAN NO: AAACB 5759 Q ] VS. ASST. CIT 9(1), R.NO.262, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI YOGESH A. THAR RESPONDENT BY : SHRI RAKESH RANJAN DATE OF HEARING : 29.11.2012 DATE OF PRONOUNCEMENT : 29.11.2012 ORDER PER SANJAY ARORA, A.M. : THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-19, MUMBAI (C IT(A) FOR SHORT) DATED 28.09.2011, PARTLY ALLOWING THE ASSESSEES APPEAL C ONTESTING ITS ASSESSMENT U/S. 143(3) R.W.S. 254 OF THE INCOME TAX ACT, 1961 (THE ACT H EREINAFTER) FOR THE ASSESSMENT YEAR (AY) 2002-03 VIDE ORDER DATED 16.11.2010. 2.1 NARRATING THE FACTS OF THE CASE, IT WAS SUBMITT ED BY THE LD. AR, THE ASSESSEES COUNSEL, THAT THE TRIBUNAL HAD, ON AN EARLIER OCCAS ION (I.E., VIDE ITS ORDER DATED 11/9/2009 IN ITA NO. 431/MUM/2007, COPY ON RECORD), RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER (A.O.) FOR CONSIDERIN G THE FACE VALUE OF DEPB, CREDIT IN RESPECT OF WHICH ARISES TO THE ASSSESSEE DURING THE YEAR, AS COVERED U/S.28(IIIB) AND THE ITA NO. 8473 /MUM/2011 (A.Y. 2002-03) BANBURY IMPEX PVT. LTD. V. ASST. CIT, MUMABAI 2 PROFIT ON ITS TRANSFER, I.E., THE SALE PRICE IN EXC ESS OF THE FACE VALUE OF DEPB, AS FALLING UNDER 28(IIID), I.E., IN TERMS OF THE DECISION BY T HE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (IN ITA NO.5769/MUM/2006, DATED 11.08.2009), FINDI NG THE FACTS AND CIRCUMSTANCES IN THE ASSESSEES CASE AS MUTATIS MUTANDIS SIMILAR TO THOSE IN THE SAID CASE. HOWEVER, BY THE TIME THE MATTER CAME TO BE DECIDED BY THE ASSESSING AUTHORITY, THE DECISION OF THE SPECIAL BENCH STOOD REVERSED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS (2010) 328 ITR 451 (BOM). ACCORDINGLY, THE FRESH AS SESSMENT WAS FRAMED BY THE A.O. CONSIDERING THE ENTIRE SALE CONSIDERATION, I.E., TH E FACE VALUE AS WELL AS THE EXCESS REALIZED OVER THE SAME, AS FALLING UNDER 28(IIID), SO THAT THE SAME STANDS TO BE COVERED BY CLAUSE (BAA) OF EXPLANATION TO SECTION 80HHC. HE, ACCORDINGLY, RESTORED THE DEDUCTION U/S.80HHC TO NIL, I.E., AS COMPUTED BY HI M EARLIER VIDE ORDER U/S.143(3) R.W.S. 147 DATED 27.01.2006. IN APPEAL, THE LD. CI T(A) CONFIRMED THE SAME ON THE SAME BASIS, I.E., FOLLOWING THE DECISION IN THE CAS E OF CIT VS. KALPATARU COLOURS & CHEMICALS (SUPRA). HOWEVER, SUBSEQUENTLY, THE MATTER HAS AGAI N RECEIVED CONSIDERATION BY THE HON'BLE APEX COURT, AND WHICH HAS UPHELD THE VIEW AS TAKEN BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (SUPRA), VIDE ITS JUDGMENT REPORTED AT 342 ITR 49 (SC). HE, THEREFORE, PRAYED FOR A DIRECTION BY THE BENCH TO THE A.O. TO COMPUTE THE DEDUCTION U/S.80HHC IN THE LIGH T OF AND FOLLOWING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF TOPMAN EXPORTS V. CIT (2012) 342 ITR 49 (SC). 2.2 THE LD. DR ON BEING QUERIED ON THIS DID NOT OBJ ECT TO THE SAID PROPOSITION. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WITHOUT DOUBT, THE LAW AS FINALLY SETTLED BY THE HON'BLE APEX COUR T HAS TO BE APPLIED, IRRESPECTIVE OF THE VIEW THAT MAY HAVE BEEN TAKEN EARLIER BY THE ASSESS ING AUTHORITY. UNDER THE CIRCUMSTANCES, WE, THEREFORE, RESTORE THE MATTER BA CK TO THE FILE OF THE A.O. TO CONSIDER THE MATTER QUA THE DEDUCTION U/S.80HHC TO THE EXTENT IN RELATES T O THE DEPB CREDITS, ITA NO. 8473 /MUM/2011 (A.Y. 2002-03) BANBURY IMPEX PVT. LTD. V. ASST. CIT, MUMABAI 3 WHICH WE FIND TO BE THE SOLE ISSUE IN THE INSTANT A PPEAL, DE NOVO , AND DECIDE THE SAME IN THE LIGHT OF THE DECISION BY THE APEX COURT IN T HE CASE OF TOPMAN EXPORTS V. CIT (SUPRA). WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF NOVEMBER, 2012 . SD/- SD/- ( I. P. BANSAL ) ( SANJAY ARORA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATE: 29.11.2012 COPY FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C.I.T.-9, MUMBAI 4. CIT (A) 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI