AARTI DRUGS LTD, V. ADDL CIT RG 6(1),

MA 231/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8807 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2000-2001
• Appeal Filed On: 12-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: DEEPESH CHHEDA
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIVEK VARMA, JM M.A.NO.231/MUM/2011 (ARISING OUT OF ITA NO.2913/MUM/2004 : ASST. YEAR 2 000-2001) M/S.AARTI DRUGS LIMITED 74 MATRU SMRUTI, ROAD NO.4 SCHEME NO.6, SION (EAST) MUMBAI 400 022. PAN : AAACA4410D. THE ADDL.COMMISSIONER OF INCOME-TAX RANGE 6(1) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI DEEPESH CHHEDA RESPONDENT BY : SHRI A.K.NAYAK DATE OF HEARING : 08.06.2012 DATE OF PRONOUNCEMENT : 08.06.2012 O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 29 TH OCTOBER, 2009 IN ITA NO.2913/MUM/2004. 2. THE FIRST GROUND IS AGAINST THE COMPUTATION OF B OOK PROFIT U/S 115JA VIS-- VIS THE GRANT OF DEDUCTION U/S 80HHC. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD, IT IS OBSE RVED THAT THE TRIBUNAL DECIDED THIS ISSUE AGAINST THE ASSESSEE BY RELYING ON THE JUDGME NT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJANTA PHARMA V. CIT [180 ITR 494]. THE SAID JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT HAS NOW BE EN REVERSED BY THE HONBLE SUPREME COURT IN AJANTA PHARMA V. CIT [327 ITR 305] . IN THIS JUDGMENT THE HONBLE SUPREME COURT HAS HELD THAT CLAUSE (IV) OF EXPLANATION TO SECTION 115JB COVERS FULL EXPORT PROFITS OF 100% AS ELIGIBLE PROF IT AND THE SAME CANNOT BE REDUCED TO 80%. IN VIEW OF THE LATER JUDGMENT OF THE HONB LE SUPREME COURT IT IS EVIDENT MA NO.231/MUM/2011 M/S.AARTI DRUGS LIMITED. 2 THAT THE ORDER OF THE TRIBUNAL NOW REQUIRES MODIFIC ATION. WE ORDER ACCORDINGLY AND THE RESULTANT GROUND OF THE ASSESSEES APPEAL IS AL LOWED. 3. THE OTHER GRIEVANCE RAISED BY THE ASSESSEE IN TH E PRESENT MISCELLANEOUS APPLICATION IS AGAINST THE ALLOCATION IN THE CALCUL ATION OF INDIRECT COST FOR SECTION 80HHC. THE LEARNED COUNSEL FOR THE ASSESSEE CONTEND ED THAT THE TRIBUNAL DIRECTED TO ALLOCATE INDIRECT COST IN THE RATIO OF TRADING E XPORT TO TOTAL EXPORT TURNOVER AS WAS DONE FOR ALLOCATION OF INTEREST OF PACKING CREDIT AND INTEREST TO FOREIGN BANKS. THE LEARNED AR CONTENDED THAT THE QUESTION BEFORE THE T RIBUNAL WAS WHETHER ONLY INTEREST PERTAINING TO EXPORT BE CONSIDERED FOR WOR KING OUT INDIRECT COST FOR COMPUTING DEDUCTION U/S 80HHC. IN THE OPPOSITION, T HE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL HAS DECI DED THE ISSUE BY ACCEPTING THE ASSESSEES CONTENTION ON THE QUESTION OF ALLOCATION OF INDIRECT COST IN THE RATIO OF TRADING EXPORT TO TOTAL EXPORT TURNOVER. 4. FROM THE IMPUGNED ORDER IT IS OBSERVED THA T THE ASSESSEE CONTENDED THAT THE INDIRECT COST SHOULD ALSO BE APPORTIONED IN THE RAT IO OF TRADING EXPORT TO TOTAL EXPORT TURNOVER WHICH CAME TO BE ACCEPTED BY THE TRIBUNAL. WE ARE UNABLE TO FIND ANY MISTAKE MUCH LESS MISTAKE APPARENT FROM RECORD IN T HE IMPUGNED ORDER WARRANTING ANY INTERFERENCE. THE SCOPE OF PROCEEDINGS U/S 254( 2) IS TO RECTIFY THE MISTAKES WHICH ARE APPARENT FROM RECORD. THE PARTIES CANNOT BE ALLOWED TO REARGUE THE MATTER IN THE GARB OF RECTIFICATION PROCEEDINGS. FU RTHER THE MISTAKE WHICH IS CONTEMPLATED FOR RECTIFICATION IN THE PROCEEDINGS U /S 254(2) IS THE ONE COMMITTED BY THE TRIBUNAL. IF THE PARTIES FAIL TO PUT UP THE CASE PROPERLY DURING THE COURSE OF HEARING AND THE MATTER IS ACCORDINGLY DECIDED, THEY CANNOT TURN AROUND TO ARGUE THAT THE CASE SHOULD HAVE BEEN DECIDED IN ANOTHER MANNER . FROM THE IMPUGNED ORDER IT IS EVIDENT THAT THE ASSESSEES CONTENTION SO MADE D URING THE COURSE OF HEARING WAS ACCEPTED BY THE TRIBUNAL. IN SUCH CIRCUMSTANCES THE RE CANNOT BE ANY QUESTION OF MA NO.231/MUM/2011 M/S.AARTI DRUGS LIMITED. 3 FINDING ANY MISTAKE OR APPLYING FOR ITS RECTIFICATI ON. THE MISCELLANEOUS APPLICATION IS NOT ALLOWED ON THIS COUNT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 8 TH DAY OF JUNE, 2012. SD/- SD/- (VIVEK VARMA) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 8 TH JUNE, 2012. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) VI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.