LAHOTI OVERSEAS LTD, V. DCIT 5(2),

MA 276/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9719 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Section: 5(2); 80HHC

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , ! '# $% , & !, ' BEFORE SHRI R.S.SYAL, AM AND SHRI AMIT SHUKLA, JM (( !) ./ MA NO.276/MUM/2012 ( +,# - / ARISING OUT OF ITA NO.2180/MUM/2010) ( &) . &) . &) . &) . / / / / ASSESSMENT YEAR : 2001-2002) M/S.LAHOTI OVERSEAS LIMITED 307, ARUN CHAMBERS, TARDEO MUMBAI 400 034. PAN : AAACL2578H. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 5(2) MUMBAI. ( ! / // / APPLICANT) ) ) ) ) / VS. ( /012/ RESPONDENT) ! 3 33 3 4 4 4 4 / APPLICANT BY : SHRI YOGESH THAR /012 3 4 3 4 3 4 3 4 / RESPONDENT BY : SHRI A.B.KOLI ) 3 # / / / / DATE OF HEARING : 14.12.2012 56. 3 # / DATE OF PRONOUNCEMENT : 14.12.2012 !$ !$ !$ !$ / / / / 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 FO R THE RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 31 ST JANUARY, 2011 IN ITA NO.2180/MUM/2010. 2. THE LEARNED AR CONTENDED THAT THE TRIBUNAL HAS D ISMISSED THE APPEAL OF THE ASSESSEE ON THE QUESTION OF DEDUCTION U/S 80HHC ON DEPB IN THE LIGHT OF THE JUDGMENT OF THE HONBLE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT V. KALPATARU COLOURS AND CHEMICALS [233 CTR 313]. IT WAS SUBMITTED THAT THE SAID JUDGMENT HAS BEEN REVERSED BY THE HONBLE SUPREME COURT IN TOPMAN EXPORT V. CIT [(2012) 67 MA NO.276/MUM/2012 M/S.LAHOTI OVERSEAS LIMITED. 2 DTR (SC) 189] . IT WAS, THEREFORE, PRAYED THAT THE ASSESSING OFFI CER BE DIRECTED TO RECONSIDER THE MATTER IN THE LIGHT O F THE JUDGMENT OF THE HONBLE SUPREME COURT INSTEAD OF THAT OF THE HONBL E JURISDICTIONAL HIGH COURT. NO OBJECTION WAS TAKEN BY THE LEARNED D EPARTMENTAL REPRESENTATIVE ON THIS ISSUE. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS NOTICED THAT THE QUESTION OF ALLOWING DEDUCTION U/S 80HHC ON DEPB WAS DECIDED BY THE CIT( A) AGAINST THE ASSESSEE BY IGNORING THE SPECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORT VS. ITO [(2009) 318 ITR (AT) 87 (MUM. ) (SB) . WHEN THE APPEAL OF THE ASSESSEE CAME UP FOR HEARING BEF ORE THE TRIBUNAL, AT THAT TIME, THE SPECIAL BENCH ORDER OF THE TRIBUNAL IN TOPMAN EXPORT STOOD REVERSED. THAT IS HOW THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE BY RELYING UPON THE JUDGMENT OF THE HONBL E JURISDICTIONAL HIGH COURT, WHICH WAS BINDING ON THE TRIBUNAL AT TH AT TIME. NOW, SINCE THE HONBLE SUPREME COURT HAS REVERSED THE JU DGMENT OF THE HONBLE BOMBAY HIGH COURT, THEREBY RESTORING THE SP ECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORT (SUPRA), IN OUR CONSIDERED OPINION, THE MATTER IS NOW REQUIRED TO BE DECIDED B Y THE ASSESSING OFFICER IN ACCORDANCE WITH THE LAW OF THE LAND I.E. THE JUDGMENT OF THE HONBLE SUPREME COURT. WE, THEREFORE, DIRECT THE A.O . TO DECIDE THIS ISSUE AFRESH BY CONSIDERING THE JUDGMENT OF THE HO NBLE SUPREME COURT INSTEAD OF THAT OF THE HONBLE JURISDICTIONAL HIGH COURT ON THE POINT. MA NO.276/MUM/2012 M/S.LAHOTI OVERSEAS LIMITED. 3 4. 7 #8 ! 3 (( !) # 3 9# :; < IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF DECEMBER, 2012 . !$ 3 56. =!)8 6 3 > SD/- SD/- (AMIT SHUKLA) (R.S.SYAL) & ! & ! & ! & ! / JUDICIAL MEMBER ! ! ! ! / ACCOUNTANT MEMBER MUMBAI ; =!) DATED 14 TH DECEMBER, 2012. DEVDAS* !$ 3 /&#'( ?(.# !$ 3 /&#'( ?(.# !$ 3 /&#'( ?(.# !$ 3 /&#'( ?(.#/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPLICANT. 2. /012 / THE RESPONDENT. 3. @ () / THE CIT(A) IX, MUMBAI. 4. @ / CIT 5. (C> /&#&) , , / DR, ITAT, MUMBAI 6. >D E / GUARD FILE. !$) !$) !$) !$) / BY ORDER, 0(# /&# //TRUE COPY// + + + +/ // /: 9 : 9 : 9 : 9 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI