NARAYAN J. PAGARANI, MUMBAI V. ITO 21(1)(3), MUMBAI

ITA 959/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2737 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 12-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: SNEHAL J SHAH
• Keywords: Opportunity of being heard
• Section: 80HHC; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVA N, JM ITA NOS.959 & 960/MUM/2009 : ASST.YEARS 2003-2004 & 2004-2005 SHRI NARAYAN J.PAGARANI C/O.HOTEL AIR LINK, 75, OFF NEHRU ROAD, VILE PARLE (EAST) MUMBAI 400 099. PA NO.AAAPP6459Q. THE INCOME TAX OFFICER WARD 21(1)(3) MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI SNEHAL J.SHAH RESPONDENT BY : S/SHRI S.S.RANA & S.M.KESHKAMAT O R D E R PER R.S.SYAL, AM : THESE TWO APPEALS BY THE ASSESSEE RELATE TO THE ASS ESSMENT YEARS 2003-2004 AND 2004-2005. 2. THE ONLY COMMON ISSUE RAISED THROUGH VARIOUS GRO UNDS IN BOTH THE APPEALS IS AGAINST THE COMPUTATION OF DEDUCTION U/S .80HHC VIS--VIS DEPB. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. BOTH THE SI DES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THESE APPEALS A RE MUTATIS MUTANDIS SIMILAR TO THOSE DECIDED BY THE SPECIAL BENCH OF TH E TRIBUNAL IN THE CASE OF M/S.TOPMAN EXPORTS VS. ITO [(2009) 318 ITR (AT) 87 (MUMBAI) (SB)] . THE SPECIAL BENCH VIDE ITS ORDER DATED 11.08.2009 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING T HE FACE VALUE OF DEPB AS COVERED UNDER SECTION 28 (IIIB) AND THE PROFIT ON T RANSFER OF DEPB I.E., 2 EXCESS OF SALE PRICE OVER THE FACE VALUE OF DEPB AS FALLING UNDER SECTION 28 (IIID). IT HAS FURTHER BEEN HELD THAT THERE IS NO SCOPE FOR ALLOWING SEPARATE DEDUCTION FOR INDIVIDUAL EXPENSES CONNECTED WITH TH E SALE OF DEPB DUE TO THE SCHEME OF SECTION 80HHC. WE, THEREFORE, SET ASI DE THE IMPUGNED ORDER ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO R ECOMPUTE THE DEDUCTION UNDER SECTION 80HHC IN ACCORDANCE WITH THE VIEW TAK EN BY THE SPECIAL BENCH IN THE AFORE NOTED CASE. NEEDLESS TO SAY TH E ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE AO I N THE FRESH PROCEEDINGS. 4. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 9 TH DAY OF DECEMBER, 2009 SD/- SD/- ( ASHA VIJAYARAGHAVAN ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI : 9 TH DECEMBER, 2009. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI. 3 DATE INITIAL 1. DRAFT DICTATED ON 07.12.2009 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 07.12.2009 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.