Jindal Worldwide Limited, Ahmedabad V. Dy. CIT., Circle-4, Ahmedabad

MA 146/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9229 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 27-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI T. R. MEENA, ACCOUNTANT MEMBER M.A.NO.146/AHD/2012 IN C.O. NO. 14/ AHD/2008 (ASSESSMENT YEAR 2004-05) JINDAL WORLDWIDE LTD., 1 ST FLOOR, SURYARATH BUILDING PANCHVATI FIRST LANE, AMBAWADI, AHMEDABAD VS. DCIT, CIRCLE 4, AHMEDABAD PAN/GIR NO. : AAACJ3816G (APPELLANT) .. (RESPONDENT) APPELLANT BY: MS. URVASHI SHODHAN, AR RESPONDENT BY: SHRI Y.P.VERMA, SR. DR DATE OF HEARING: 05.10.2012 DATE OF PRONOUNCEMENT: 12.10. 2012 O R D E R PER SHRI T. R. MEENA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT SOME MISTAKE IN THE TRIBUNAL ORDER DATED 30.11.2010 . 2. THE MISTAKE POINTED OUT BY THE ASSESSEE IN THE T RIBUNAL ORDER IS THIS THAT GROUND NO.1 & 2 OF THE C.O. FOR THE ASSESSMENT YEAR 2004-05 WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE BY FOL LOWING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF C IT VS KALPATARU COLOUR & CHEMICALS LTD VS CIT AS REPORTED IN 328 IT R 451 (MUM.) IT IS FURTHER SUBMITTED THAT THIS DECISION OF HONBLE BOM BAY HIGH COURT HAS M.A.NO.146 /AHD/2012 2 BEEN REVERSED BY THE HONBLE APEX COURT IN THE JUDG EMENT RENDERED IN THE CASE OF TOPMAN EXPORTS AS REPORTED IN 342 ITR 49. IT IS FURTHER SUBMITTED THAT AS PER THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE AS REPO RTED IN 305 ITR 227 (S.C.) AND AS PER THE JUDGEMENT OF HONBLE ALLAHABA D HIGH COURT RENDERED IN THE CASE OF CIT VS BINDAL INDUSTRIES LT D. AS REPORTED IN 328 ITR 160 (ALLD.) IF THE TRIBUNAL DECISION IS NOT IN LINE WITH A SUBSEQUENT DECISION OF HONBLE APEX COURT OR HONBLE JURISDICT IONAL HIGH COURT THEN THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL O RDER WHICH SHOULD BE RECTIFIED U/S 254(2) TO BRING THE TRIBUNAL ORDER IN LINE WITH SUCH SUBSEQUENT DECISION OF HONBLE APEX COURT/JURISDICT IONAL HIGH COURT. IN THE COURSE OF ARGUMENTS BEFORE US, LD. A.R. REITERA TED THE SAME ARGUMENTS WHICH HAVE BEEN GIVEN IN THE MISCELLANEOU S APPLICATION. AS AGAINST THIS, LD. D.R. SUBMITTED THAT THERE IS NO A PPARENT MISTAKE IN THE TRIBUNAL ORDER BUT COULD NOT POINT OUT ANY DEFECT I N THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND WE FIND THAT THE ISSUE REGARDING ALLOWAB ILITY OF DEDUCTION U/S 80HHC IN RESPECTS OF DEPB ENTITLEMENT WAS DECIDED B Y THE TRIBUNAL AS PER THE IMPUGNED ORDER, AGAINST THE ASSESSEE BY FOL LOWING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE O F CIT VS KALPATARU COLOUR & CHEMICALS LTD. (SUPRA). SUBSEQUENT TO THI S JUDGEMENT OF HONBLE BOMBAY HIGH COURT, THERE IS JUDGEMENT OF HO NBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS AS PER WHICH , IT WAS HELD BY THE HONBLE APEX COURT THAT ONLY THE PROFIT ON SALE OF DEPB IS TO BE EXCLUDED FROM BUSINESS PROFIT FOR THE PURPOSE OF CO MPUTATION OF DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC AND F OR THE PURPOSE OF M.A.NO.146 /AHD/2012 3 THIS COMPUTATION OF PROFIT ON SALE OF DEPB, FACE VA LUE OF DEPB SHOULD BE CONSIDERED AS COSTS OF DEPB. WE ALSO FIND THAT AS PER THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF SAURASHTSRA KUTCH STOCK EXCHANGE (SUPRA) IN WHICH THE HONBLE APEX COURT HAS REFERRE D TO THE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT ALSO RENDERED IN THE CASE OF SUHRID GEIGY LTD. VS COMMISSIONER OF SALES TAX AS REPORTED IN 237 ITR 834 WHEREIN, IT WAS HELD THAT IF THE POINT IS COVERED B Y A DECISION OF JURISDICTIONAL HIGH COURT RENDERED PRIOR OR EVEN SU BSEQUENT TO THE ORDER OF RECTIFICATION, IT CAN BE SAID TO BE A MISTAKE AP PARENT FROM THE RECORD U/S 254(2) OF THE INCOME TAX ACT, 1961 AND COULD BE COR RECTED BY THE TRIBUNAL. AS PER THIS JUDGEMENT OF HONBLE JURISDI CTIONAL HIGH COURT, IN THE PRESENT CASE ALSO, THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE THE IMPUGNED TRIBUNAL ORDER IS NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA). 4. THE LD. A.R. ALSO DRAWN OUR ATTENTION TO I.T.A.N O. 4237/AHD/2007 FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF JAY CHEM ICALS INDUSTRIES LTD., WHEREIN A SIMILAR ISSUE WAS INVOLVED BEFORE THE COO RDINATE BENCH OF THE TRIBUNAL BENCH C AHMEDABAD. THE OPERATIVE PORTIO N OF THIS TRIBUNAL ORDER IS REPRODUCED BELOW: RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HONBLE G UJARAT HIGH COURT RENDERED IN THE CASE OF SUHRID GIEGY LTD. (SU PRA) AND ALSO THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE (SUPRA), WE HOLD TH AT THERE IS APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER AS THE CLAIM OF THE ASSESSEE REGARDING DEDUCTION U/S 80HHC IN RESPECT O F DEPB ENTITLEMENT/DEPB INCOME WAS DECIDED AGAINST THE ASS ESSEE FOR THE WHOLE AMOUNT BUT AS PER THE JUDGMENT OF HONBLE APE X COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA), ONL Y PROFIT ON SALE OF DEPB SHOULD BE CONSIDERED FOR THE PURPOSE OF EXC LUSION FORM BUSINESS PROFIT FOR COMPUTING DEDUCTION ALLOWABLE T O THE ASSESSEE M.A.NO.146 /AHD/2012 4 U/S 80HHC AND FOR THE COMPUTATION OF PROFIT ON SALE OF DEPB, FACE VALUE OF DEPB IS TO BE CONSIDERED AS COSTS OF DEPB. WE, THEREFORE, RECTIFY THIS APPARENT MISTAKE IN THE IMP UGNED TRIBUNAL ORDER AND HOLD THAT THIS ISSUE SHOULD GO BACK TO TH E FILE OF THE A.O. FOR A FRESH DECISION AS PER THIS JUDGEMENT OF HONB LE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA). 5. THE HONBLE GUJARAT HIGH COURT HAS HELD IN THE C ASE OF SAYAJI IRON & ENGINEERING CO. VS ACIT (2002) 253 ITR 749 (GUJ.) THAT WHEN COORDINATE BENCH OF THE TRIBUNAL DECISION IS AVAILA BLE, SUBSEQUENT BENCH CANNOT DIFFER AND IF THE SUBSEQUENT BENCH IS NOT IN AGREEMENT THEN THE MATTER SHOULD BE REFERRED TO THE PRESIDENT FOR CONS TITUTION OF A LARGER BENCH. THE ISSUE IS COVERED BY THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND ACCORDINGLY, THE A.O. IS DIRECTED TO DECIDE THE ASSESSEES CLAIM AS PER THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA ). 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (T. R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD M.A.NO.146 /AHD/2012 5 1. DATE OF DICTATION 08.10.2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER.10.10.12. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 12/10/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.12/10/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12/10/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .