UMC EXPORTS CORPORATION, V. ASST CIT RG 2(3),

MA 154/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0954 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 1999-2000
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI .. , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ! '/ M.A. NOS. 154 & 155/MUM/2013 (ARISING OUT OF ITA NOS. 4233 & 4236/MUM/2009) ASSESSMENT YEARS: 1999-2000 & 2002-03 UMC EXPORT CORPORATION INDUSTRIAL ESTATE, OFF. SAKI VIHAR ROAD, ANDHERI EAST, MUMBAI-400 072 / VS. ASST. CIT, CIRCLE 21(3), MUMBAI $ ./% ./PAN/GIR NO. AAAFV 0857 G ( $& /APPELLANT ) : ( '($& / RESPONDENT ) $& ) / APPELLANT BY : NONE '($& * ) / RESPONDENT BY : SHRI S. S. RANA + ' , * -. / DATE OF HEARING : 06.09.2013 /01 * -. / DATE OF PRONOUNCEMENT : 06.09.2013 2 / O R D E R PER SANJAY ARORA, A. M.: THESE ARE A SET OF TWO MISCELLANEOUS PETITIONS/APPL ICATIONS BY THE ASSESSEE, I.E., FOR ASSESSMENT YEARS (A.Y.) 1999-2000 AND 2002-03, IN RESPECT OF THE COMBINED ORDER BY THE TRIBUNAL DATED 30.09.2010 IN ITS CASE FOR THE S AID YEARS. 2. THE ONLY ISSUE IN THESE APPEALS AND, CONSEQUENTL Y, DECIDED BY THE TRIBUNAL, IS THE QUANTIFICATION OF THE ASSESSEES CLAIM U/S.80-HHC I N VIEW OF THE DEPB RECEIPTS. THE 2 MA NOS. 154 & 155/MUM/2013 (A.YS. 99-00 & 02-03) UMC EXPORT CORPORATION VS. ASST. CIT CONTROVERSY IS WITH REGARD TO THE AMOUNT OF DEPB RE CEIPT THAT QUALIFIES TO BE INCLUDED U/S. 28(IIIA). WHILE THE REVENUE CLAIMS THE ENTIRE RECEIPT REALIZED ON TRANSFER AS COVERED THERE-UNDER, SO AS TO FALL UNDER EXPLANATION (BAA) TO SECTION 80-HHC AND, THUS, LIABLE FOR INCLUSION IN THE COMPUTATION FORMULA PROVIDED U/S.8 0-HHC(3), THE ASSESSEE CLAIMS ONLY THE PROFIT ELEMENT INCLUDED THEREIN AS FALLING U/S. 28(IIIA), WITH THE COST, RECKONED AT FACE VALUE OF THE LICENSE, BEING COVERED U/S. 28(I) ITSE LF. THE REVENUES CLAIM HAVING BEEN UPHELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. KALPATARU COLOURS & CHEMICALS [2010] 328 ITR 451 (BOM.) [192 TAXMAN 435], REVERS ING THE DECISION OF THE TRIBUNAL IN TOPMAN EXPORTS VS. ITO (REPORTED AT 318 ITR (AT) 87 (MUM)(SB)), THE REVENUES APPEALS WERE ACCEPTED BY THE TRIBUNAL FOR BEING DECIDED IN ACCORDANCE WITH THE DECISION IN THE CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA) VIDE THE IMPUGNED ORDER. THE ASSESSEE THROUGH ITS INSTANT APPLICATIONS HAS N OW BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THE DECISION OF THE HONBLE BOMBAY HI GH COURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA) IS NO LONGER GOOD LAW IN VIEW OF THE UPHOL DING OF THE DECISION BY THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS [REPORTED AT (2012) 342 ITR 49 (SC)] BY THE APEX COURT. THE IMPUGNED ORDER WOULD, THEREFORE, NEED TO BE RECTIFIED TO BRING IT IN CONFORMITY WITH LAW. 3. WE HAVE PERUSED THE WRITTEN SUBMISSIONS BY THE A SSESSEE AND HEARD THE LD. DEPARTMENTAL REPRESENTATIVE (DR) IN THE MATTER, WHO BEFORE US COULD NOT CONTROVERT THE ASSESSEES APPLICATION/S IN ANY MANNER. WE HAVE PER USED THE IMPUGNED ORDER BY THE TRIBUNAL, WHICH UNDER THE CIRCUMSTANCES CANNOT BE S AID TO BE LEGALLY VALID IN VIEW OF THE LAW AS CLARIFIED BY THE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). UNDER THE CIRCUMSTANCES, THEREFORE, WE ONLY CONSIDER IT FIT A ND PROPER TO RECALL THE SAME TO ENABLE A FRESH ADJUDICATION OF THE MATTER IN LIGHT OF THE DE CISION BY THE APEX COURT IN THE SAID CASE. WE DECIDE ACCORDINGLY. THE REGISTRY IS FURTHER DIRE CTED TO POST THE RELEVANT APPEALS FOR HEARING IN THE NORMAL COURSE. 3 MA NOS. 154 & 155/MUM/2013 (A.YS. 99-00 & 02-03) UMC EXPORT CORPORATION VS. ASST. CIT 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATIONS ARE ALLOWED IN THE TERMS AFORE-STATED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 06, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER + , MUMBAI; 3' DATED : 06.09.2013 .'. ./ ROSHANI , SR. PS !'#$ %$&' / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT 3. + 4- ( ) / THE CIT(A) 4. + 4- / CIT - CONCERNED 5. 78 '-'9! , . 9!1 , + , / DR, ITAT, MUMBAI 6. 8:; , / GUARD FILE ' / BY ORDER, (/') * (DY./ASSTT. REGISTRAR) , + , / ITAT, MUMBAI