MANGAL CREATION P.LTD, V. DCIT RG 4(1),

MA 226/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1152 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 28-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B PANDA
• Assessee Lawyers: BHAVIN PAREKH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B B ENCH, MUMBAI . , !' # # # # , $% &'() , $* +, $ ' BEFORE SHRI D. MANMOHAN, VP AND SHRI N.K. BILLAI YA, AM M.A. NO. 226/MUM/2013 ARISING OUT OF ITA NO. 3614/MUM/2010 ( - - - - / ASSESSMENT YEAR :2006-07 M/S. MANGAL CREATIONS PVT. LTD., 77ABC, GOVT. INDUSTRIAL ESTATE, CHARKOP, KANDIVALI (W), MUMBAI-400 067 THE DCIT, CIR. 4(1), MUMBAI ,. $* ./ /0 ./PAN/GIR NO. : AAACD 0541N ( .1 /APPELLANT ) .. ( 23.1 / RESPONDENT ) .1 4 $ / APPELLANT BY : ` SHRI BHAVIN PAREKH 23.1 5 4 $ /RESPONDENT BY : SHRI B. PANDA 5 6* / DATE OF HEARING :29.11.2013 7- 5 6* / DATE OF PRONOUNCEMENT :29.11.2013 +$8 / O R D E R PER N.K. BILLAIYA, AM: THIS MISCELLANEOUS APPLICATION ARISING OUT OF THE O RDER OF THE TRIBUNAL IN ITA NO. 3614/M/2010 FOR A.Y. 2006-07 IS PREFERRED BY THE ASSESSEE. THE ASSESSEE STATES AS UNDER: THE FACTS IN BRIEF ON THIS ISSUE ARE THAT THE APPL ICANTS ARE ENGAGED IN THE BUSINESS OF EXPORTS. THE AO MADE AD DITION M.A. NO.226/M/2013 2 OF RS. 29,57,286/- ON ACCOUNT OF SALE OF DEPB LICEN SES. IN APPEAL, THE LD COMMISSIONER OF INCOME TAX (APPEALS) -8 FOLLOWING THE JUDGMENT OF ITAT, SPECIAL BENCH, MUMB AI IN TOPMAN EXPORTS 125 TTJ 289, RULED THE AO IS DIRECT ED TO CONSIDER THE EXCESS OF SALE PROCEEDS OVER FACE VALU E OF DEPE AS INCOME OF THE APPELLANT U/S 28(IIID). HE T HEREFORE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND DEL ETED THE ADDITIONS MADE. THE DEPARTMENT CHALLENGED THE ABOVE ORDER BEFORE T HE HONBLE BENCH B OF THE INCOME TAX APPELLATE TRIBU NAL, MUMBAI. BY THIS TIME THE DECISION OF THE SPECIAL BENCH OF T HE ITAT WAS REVERSED BY THE HONBLE BOMBAY HIGH COURT IN KALPATARU COLOURS AND CHEMICALS 233 CTR 313 (BOM) . BASED UPON THIS THE HONBLE TRIBUNAL PASSED THE ORD ER AT PARA 2, ALLOWING THE REVENUES APPEAL. SUBSEQUENTLY, THE HONBLE APEX COURT IN THEIR JUDGM ENT IN TOPMAN EXPORTS 67 DTR 185 (SC) HELD THAT THE DIFFER ENCE IN THE SALE VALUE AND THE FACE VALUE OF THE DEPB O N TRANSFER OF THE DEPB REPRESENTED BUSINESS PROFITS F OR THAT YEAR. THE HONBLE APEX COURT THUS SET ASIDE THE JUD GMENT OF THE HONBLE BOMBAY HIGH COURT IN KALPATARU COLOU RS AND CHEMICALS 233 CTR 313. THE APPLICANTS MOST HUMB LY AND RESPECTFULLY STATE THAT THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT HAVING BEEN SET ASIDE THUS NO LON GER REMAINS GOOD LAW. 2. IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSE E THAT WITH THE DECISION OF THE HONBLE SUPREME COURT CITED HEREINA BOVE, THE MISTAKES APPARENT FROM THE RECORD AND THE ORDER OF THE TRIBU NAL DESERVES TO BE RECTIFIED. 3. WE HAVE CAREFULLY PERUSED THE ORDER OF THE TRIBU NAL AND THE OBJECTIONS OF THE ASSESSEE. WE FIND FORCE IN THE C ONTENTION OF THE LD. COUNSEL. THE DECISION OF THE HONBLE JURISIDCTIONA L HIGH COURT HAS BEEN SET ASIDE BY THE HONBLE SUPREME COURT, WHICH DECI SION IS A LAW OF THE LAND. THE ORDER OF THE TRIBUNAL IN ITA NO. 3614/M/ 2010 IS HEREBY M.A. NO.226/M/2013 3 RECALLED. REGISTRY IS DIRECTED TO POST THE CASE FO R HEARING ON 20.1.2014. BOTH THE PARTIES INFORMED. 3. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2013 . +$8 5 - *$ 9 :+; 29.11.2013 5 < SD/- SD/- (D.MANMOHAN) (N.K. BILLAIYA) !' /VICE PRESIDENT $* +, / ACCOUNTANT MEMBER MUMBAI; :+ DATED 29/11/2013 . . ./ RJ , SR. PS +$8 +$8 +$8 +$8 5 55 5 26& 26& 26& 26& =$&-6 =$&-6 =$&-6 =$&-6 / COPY OF THE ORDER FORWARDED TO : 1. .1 / THE APPELLANT 2. 23.1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. &?< 26 , , / DR, ITAT, MUMBAI 6. < @ / GUARD FILE. +$8 +$8 +$8 +$8 / BY ORDER, 3&6 26 //TRUE COPY// / / / / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI