N.M. FASHIONS, V. ASST 10(2),

MA 100/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8191 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2003-2004
• Appeal Filed On: 17-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCONTANT MEMBER MA NO.100 AND 101/MUM/2012 ARISING OUT OF ITA NOS.4601 AND 4602/MUM/2010 FOR A .YS. 2003-04 & 2004-05 M/S. N.M. FASHIONS, 155 A TO Z INDL. ESTATE, G.K. MARG, MUMBAI -400 013 ....... APPLICANT VS ASST. COMMISSIONER OF INCOME-TAX 18(2), ROOM NO.115, 1ST FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI -400 012 ..... RESPONDENT PAN: AABFN 0083 B APPLICANT BY: SHRI JITENDRA JAIN RESPONDENT BY: SHRI P.E. MAURYA DATE OF HEARING: 20.04.2012 DATE OF PRONOUNCEMENT: 09.05.2012 O R D E R PER R.S. PADVEKAR, JM THESE TWO MISC. APPLICATIONS ARE FILED BY THE ASSES SEE U/S.254(2) OF THE ACT STATING THAT THERE IS A MISTA KE IN THE ORDER OF THE TRIBUNAL IN ITA 4601 & 4602/M/2010 AND CO. NO.56, 5 7/M/2011 DATED 19.10.2011 AND HENCE, BOTH THE ORDERS NEEDS R ECTIFICATION. IT IS STATED IN THE APPLICATION THAT THE TRIBUNAL HAS ALL OWED THE REVENUES APPEAL ON THE GROUND RELATING TO DEDUCTION U/S.80HH C OF THE ACT BY FOLLOWING THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS LTD. 328 I TR 451. IT IS FURTHER STATED THAT THE HONBLE SUPREME COURT HAS A FFIRMED THE DECISION OF THE ITAT SPECIAL BENCH IN THE CASE OF T OPMAN EXPORTS VS. CIT, MUMBAI 318 ITR 87 (AT)(SB) AND REVERSED THE DE CISION OF THE KALPATARU COLOURS AND CHEMICALS (SUPRA). THE ASSES SEE HAS ALSO MAS 100 & 101/M/2012 M/S. N.M. FASHIONS 2 RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SOURASHTRA STOCK EXCHANGE LTD. 305 ITR 227 IN SUPPORT OF THE APPLICATION THAT THE SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT CONSTITUTE MISTAKE APPARENT FROM THE RECORD W ITHIN THE MEANING OF SEC.254(2) OF THE ACT. IT IS PLEADED THAT THE O RDER MAY BE RECTIFIED AND GROUNDS TAKEN BY THE REVENUE ON THE ISSUE OF TH E DEDUCTION U/S.80HHC MAY BE DISMISSED. 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD S. WE FIND THAT THE REVENUE HAS CHALLENGED RESPECTIVE IMPUGNED ORDERS OF THE LD. CIT (A) FOR THE A.YS. 2003-04 AND 2004-05 RAISING T HE GRIEVANCE THAT THE LD. CIT (A) DIRECTED THE A.O. TO RE-COMPUTE THE DEDUCTION U/S.80HHC IN VIEW OF THE DECISION OF THE ITAT SPECI AL BENCH IN THE CASE OF TOPMAN EXPORTS (SUPRA). THE TRIBUNAL ALLOW ED THE GROUNDS TAKEN BY THE REVENUE BY FOLLOWING DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHE MICALS (SUPRA). NOW, THE DECISION OF SPECIAL BENCH OF ITAT OF TOPMA N EXPORTS (SUPRA) HAS BEEN AFFIRMED BY THE HONBLE SUPREME COURT IN M /S. TOPMAN EXPORTS & OTHERS VS. CIT MUMBAI IN 247 CTR 353 (SC) AND HAS REVERSED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS (SUPRA) ON THE ISSUE OF THE DEDUCTION U/S.80HHC, MORE SO, WITH REFERENCE TO SE C.28(IIIB) AND (IVD) OF THE ACT. WE, ACCORDINGLY, RECTIFY THE ORDERS AS UNDER: 4. PARA NO. 3 OF THE ORDER IS SUBSTITUTED AS UNDER: 3. SO FAR AS GROUND NO.1 IS CONCERNED, WE FIND THA T THE DECISION OF THE HONBLE SPECIAL BENCH OF THE ITAT IN THE CASE O F M/S. TOPMAN EXPORT 318 ITR 87 (AT)(SB) HAS BEEN AFFIRMED BY THE HONBLE SUPREME COURT IN 247 CTR 353 (SB). WE FURTHER FIND NO MERI T IN THE GROUND NO.(I) TAKEN BY THE REVENUE AND SAME IS DISMISSED. 5. PARA NO.12 OF THE ORDER IS SUBSTITUTED AS UNDER: MAS 100 & 101/M/2012 M/S. N.M. FASHIONS 3 12. THIS ISSUE IS IDENTICAL TO GROUND NO.1 OF THE REVENUES APPEAL FOR A.Y. 2003-04 AND WE HAVE DISMISSED THE R EVENUES GROUND BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HONB LE SUPREME COURT IN THE CASE OF M/S. TOPMAN EXPORTS (SUPRA). ACCORD INGLY, IN THIS YEAR ALSO WE DISMISS THE RESPECTIVE GROUND TAKEN BY THE REVENUE. 6. PARA 16 OF THE ORDER IS SUBSTITUTED AS UNDER: IN THE RESULT, BOTH THE APPEALS OF THE REVENUE I. E. FOR A.YS. 2003-04 & 2004-05 ARE DISMISSED AND BOTH THE C.OS. OF THE ASSESSEES ARE ALLOWED FOR THE STATISTICAL PURPOSE. 7. ACCORDINGLY, RESPECTIVE ORDER STANDS MODIFIED U/ S.254(2) OF THE ACT. 9. IN THE RESULT, BOTH THE M.AS. ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH MAY, 2012 . SD/- ( RAJENDRA SINGH ) ACCOUNTANT MEMBER SD/- ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 9TH MAY, 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)13, MUMBAI, 4) THE CIT-7, MUMBAI. 5) THE D.R. J BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN