Rajoo Engineers, RAJKOT-GUJARAT V. The Deputy Commissioner of Income Tax, Jnd. Circle, JUNAGADH

MA 13/RJT/2012

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4157 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 10 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AYS; IN IN I T A NOS; RAJOO ENGINEERS LTD CO M NAVAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ - ! ] [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] '#- $ , ' ( $ )* +, , ( BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NOS.10 & 13/RJT/2012 FOR AYS 2003-04 & 2004-05 (IN ./ IN I.T.A. NOS.117 & 118/RJT/2011 RESPECTIVELY) ( / ASSESSMENT YEARS : 2003-04 & 2004-05) RAJOO ENGINEERS LTD. C/O. M.. NAVAR & CO., 504, STAR PLAZA PHULCHHAB CHOWK RAJKOT / VS. THE DY.CIT JUNAGADH CIRCLE-1 JUNAGADH (1 , ./ ./ PAN/GIR NO. : AABCR 3204 M ( 13 / APPLICANT ) .. ( 4513 / RESPONDENT ) 13 6 / APPLICANT BY : SHRI M.N. MANVAR, AR 4513 7 6 / RESPONDENT BY : SHRI C.S. ANJARIA, SR.DR 8 ) 7 !, / DATE OF HEARING 12/02/2016 9* 7 !, / DATE OF PRONOUNCEMENT 29/02/2016 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE PRESENT TWO MISCELLANEOUS APPLICATIONS ARE DIR ECTED AT THE INSTANCE OF THE ASSESSEE FOR POINTING OUT APPARENT ERROR IN THE ORDER OF THE MA NOS.10 & 13/RJT/2012 (IN ITA NOS.117 & 118/RJT/20 11) RAJOO ENGINEERS LTD. VS. DCIT ASST.YEARS 2003-04 & 2004-05 - 2 - TRIBUNAL (ITAT RAJKOT BENCH, RAJKOT) DATED 09/09/20 11 PASSED FOR ASSESSMENT YEARS (AYS) 2003-04 & 2004-05 IN ITA NOS .117 & 118/RJT/2011. 2. THE GRIEVANCE OF THE ASSESSEE IS THAT SALE PROCE EDS ON SALE OF DEPB LICENCE IS A BUSINESS PROFIT WHICH OUGHT TO BE INCLUDED IN THE ELIGIBLE PROFIT FOR THE PURPOSE OF GRANT OF DEDUCTI ON U/S.80HHC OF THE ACT. THE TRIBUNAL WHILE FOLLOWING THE JUDGEMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS LTD. REPORTED IN 328 ITR 451 (BOM.) HAS REJECTED THE CON TENTION OF THE ASSESSEE AND UPHELD THE EXCLUSION OF THE SALE PROCE EDS FROM COMPUTATION OF ELIGIBLE PROFIT FOR THE PURPOSE OF DEDUCTION U/S .80HHC OF THE ACT. THIS DECISION OF HONBLE MUMBAI HIGH COURT HAS BEEN REVERSED BY THE HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORT VS. ITO REPORTED IN (2012) 247 CTR 353 (SC) :: (2009) 125 TTJ 289 (MUM .)[SB] :: (2009) 29 DTR 153 (MUM.)[SB](TRIB). THIS DECISION HAS BEE N DELIVERED ON 08/02/2012, IN VIEW OF THE SUBSEQUENT DECISION OF T HE HONBLE APEX COURT, THE ORDER OF THE TRIBUNAL SUFFERED WITH THE PATENT ERROR. THE ASSESSEE PRAYED FOR RECALL OF THE TRIBUNALS ORDER( SUPRA). 2.1. ON THE OTHER HAND, THE LD.DR WAS UNABLE TO CON TROVERT THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE. MA NOS.10 & 13/RJT/2012 (IN ITA NOS.117 & 118/RJT/20 11) RAJOO ENGINEERS LTD. VS. DCIT ASST.YEARS 2003-04 & 2004-05 - 3 - 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. WHEN THE ISSUE WHETHER THE PROFIT ON SALE OF DEPB LICENCE WOULD QUALIFY FOR GRANT OF DEDUCTION U/S.80 HHC OF THE ACT CAME UP BEFORE THE TRIBUNAL, AT THAT TIME, THE DECISION OF HONBLE BOMBAY HIGH COURT WAS OPERATING THE FIELD, TRIBUNAL HAS FO LLOWED THE DECISION. THIS DECISION HAS BEEN OVERRULED BY THE HOBLE APEX COURT ON THIS ISSUE. IT IS PERTINENT TO OBSERVE THAT A COURT DECIDE THE DISPUTE BETWEEN THE PARTIES. THE CAUSE CAN INVOLVE DECISION ON FACTS. IT CAN ALSO INVOLVE A DECISION ON POINT OF LAW, BOTH MAY HAVE BEARING ON THE ULTIMATE RESULT OF THE CASE. WHEN A COURT INTERPRETS A PROVISION, IT DECIDE AS TO WHAT IS THE MEANING AND EFFECT OF THE WORDS USED BY THE LEGISLA TURE. IT IS DECLARATION REGARDING THE STATUTE. IN OTHER WORDS, THE JUDGEME NT DECLARES AS TO WHAT THE LEGISLATURE HAD SAID AT THE TIME OF PROMULGATIO N OF THE LAW. THE DECLARATION IS - THIS WAS THE LAW, THIS IS THE LA W, THIS IS HOW THE PROVISION SHALL BE CONSTRUED. THE HONBLE SUPREME COURT HAS EXPLAINED THE MEANING OF DEDUCTION U/S.80HHC OF THE ACT AND AS TO HOW THE PROFIT ON SALE OF DEPB LICENCE IS TO BE CONSIDERED. THIS EXP LANATION HAS BEEN PROPOUNDED BY THE HONBLE APEX COURT ON 08/02/2012, BUT IT WILL BE GIVEN EFFECT FROM VERY INCEPTION, BECAUSE THE HONB LE APEX COURT HAS NOT ENACTED ANY LAW RATHER EXPLAINED THE PROVISION WHICH IS ALREADY ON THE STATUTE. THEREFORE, AN APPARENT ERROR HAS CRE PT IN THE ORDER OF THE TRIBUNAL(SUPRA). FOLLOWING THE DECISION OF HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS VS. ITO (SUPRA), WE ALLOW BO TH THE MA NOS.10 & 13/RJT/2012 (IN ITA NOS.117 & 118/RJT/20 11) RAJOO ENGINEERS LTD. VS. DCIT ASST.YEARS 2003-04 & 2004-05 - 4 - MISCELLANEOUS APPLICATIONS AND RECALL THE ORDER OF THE TRIBUNAL, THE APPEALS ARE RESTORED TO THEIR ORIGINAL APPEAL NUMBE RS. ORDER PRONOUNCED IN THE COURT ON 29 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( )* +) ( ) , ( ' ( ( MANISH BORAD ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD ; DATED 29 TH / 02 /2016 ..), .')../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. 13 / THE APPLICANT 2. 4513 / THE RESPONDENT. 3. ! 8 =! / CONCERNED CIT 4. 8 =! ( ) / THE CIT(A)-XXI, AHMEDABAD 5. ?@A 4'!') , , /DR,ITAT, RAJKOT 6. AL M / GUARD FILE. / BY ORDER, 5?! 4'! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) & ' , / ITAT, RAJKOT 1. DATE OF DICTATION .. 12.2.16 (DICTATION-PAD 8+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 18.2.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.29.2.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.2.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER