FDC LTD, V. DCIT 8(1),

MA 232/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1140 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 15-11-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 02-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K SHIVARAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, A.M. AND SHRI VIVEK VARMA, J.M. MA NO.232/MUM/2013 (ARISING OUT OF ITA NO. 1061/MUM/2007) ASSESSMENT YEAR 2004-05 FDC LIMITED 142-48, GHASWALA ESTATE, S. V. ROAD, JOGESHWARI (W), MUMBAI-400 102 / VS. DY. CIT, 8(1) MUMBAI ./ ./PAN/GIR NO. AAACF 0253 H ( ! ' /APPELLANT ) : ( #$' / RESPONDENT ) ! ' % / APPELLANT BY : SHRI K. SHIVARAM & SHRI AJAY SINGH #$' & % / RESPONDENT BY : SHRI SANJEEV JAIN ' ( ) & * + / DATE OF HEARING : 22.11.2013 ,-. & * + / DATE OF PRONOUNCEMENT : 22.11.2013 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION U/S.254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE ASSESSEE DIRECTED AGAINST THE O RDER BY THE TRIBUNAL DATED 15.07.2009 IN ITS CASE FOR THE ASSESSMENT YEAR (A.Y.) 2004-05. 2. THE ASSESSEES APPLICATION CONCERNS THE DISPOSAL OF ITS GROUND NO.3 BY THE TRIBUNAL, FOLLOWING THE DECISION BY THE SPECIAL BENCH IN THE CASE OF ASST. CIT VS. ROGINI GARMENTS 2 MA NO. 232/MUM/2013 (A.Y. 2004-05) FDC LIMITED VS. DY. CIT [2007] 108 ITD 49 (SB) (CHEN). THE SAID DECISION, I T IS SUBMITTED, HAS SINCE BEEN DISAPPROVED IN THE CASE OF ASSOCIATED CAPSULES (P.) LTD. VS. DY. CIT [2011] 332 ITR 42 (BOM). IN VIEW THEREOF THE DEDUCTION U/S.80HHC IS T O BE ALLOWED IN TERMS OF THE SAID BINDING DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATE RIAL ON RECORD. THE TRIBUNAL HAS DISPOSED THE ASSESSEES RELEVANT GROUND (# 3) VIDE PARA 5 OF ITS ORDER, FOLLOWING THE DECISIONS IN THE CASE OF ROGINI GARMENTS (SUPRA) AND SCM CREATIONS VS. ASST. CIT [2008] 304 ITR 319 (MAD.). THE DECISION BY THE HONBLE JUR ISDICTIONAL HIGH COURT WOULD PREVAIL, AND WHERE AND TO THE EXTENT THE DIRECTIONS/DECISION BY THE TRIBUNAL IS IN CONFLICT OR AT VARIANCE WITH THE DECISION BY THE HONBLE HIGH COUR T, THE SAME WOULD AMOUNT TO A MISTAKE APPARENT FROM THE RECORD IN ITS ORDER, RECTIFIABLE U/S. 254(2) OF THE ACT, AS EXPLAINED BY THE HONBLE APEX COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC). IN VIEW THEREOF, WE HEREBY MODIFY THE DIRECTION BY THE TRIBUNAL VIDE PARA 5 OF ITS ORDER INASMUCH AS THE ASSESSING OFFICER (A.O.) SHALL DECIDE THE ISSUE UNDER REFERENCE BY FOLLOWING THE DECISION BY THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (P.) LTD. (SUPRA). WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APP LICATION IS ALLOWED ON THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 22, 2013 SD/- SD/- (VIVEK VARMA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' 0) MUMBAI; 1( DATED : 22.11.2013 .(../ ROSHANI , SR. PS 3 MA NO. 232/MUM/2013 (A.Y. 2004-05) FDC LIMITED VS. DY. CIT !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. ! ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. ' 2* ( ! ) / THE CIT(A) 4. ' 2* / CIT - CONCERNED 5. 5 6 #*(78 , ! + 78. , ' 0) / DR, ITAT, MUMBAI 6. 6 9 : ) / GUARD FILE ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' 0) / ITAT, MUMBAI