CREATIVE MOBUS FABRICS LTD., V. ITO WD 6(2),

MA 287/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3838 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2003-2004
• Appeal Filed On: 30-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P PEERYA
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI N.V.VASUDEVAN, JM M.A.NO.287/MUM/2010 (ARISING OUT OF ITA NO.1405/MUM/2007 : ASST.YEAR 20 03-2004) M/S.CREATIVE MOBUS FABRICS LIMITED 229, ADHYERU INDUSTRIAL ESTATE SUN MILL COMPOUND, LOWER PAREL MUMBAI 400 013. PA NO.AAACC5458P. VS. THE INCOME TAX OFFICER WARD 6(2)(2) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PANKAJ R.TOPRANI RESPONDENT BY : SHRI P.PEERYA 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 17.11.2009 IN ITA NO.1405/MUM/2007. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT GROUND NO.5 RAISED BY THE ASSESSEE REMAINED TO BE DISPOSED OFF BY THE TRIBUNAL IN THE IMPUGNED ORDER. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMI TTED THIS POSITION. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE ASSESSEE HAD RAISED GROUND NO.5 IN ITS APPEAL MEMO, WHICH READS AS UNDER:- ON THE FACTS AND IN LAW, THE LD.CIT(A) ERRED IN NO T CONSIDERING RS.2,77,02,833/- BEING THE PREMIUM ON TRANSFER OF D EPB LICENCE AS EXPORT INCENTIVE ELIGIBLE FOR DEDUCTION U/S.80HHC. UNDER THE FACTS AND CIRCUMSTANCES OF THE MATTER, HE OUGHT TO HAVE D IRECTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80HHC ON P REMIUM ON TRANSFER OF DEPB LICENCE. MA NO.287/MUM/2010 M/S.CREATIVE MOBUS FABRICS LIMITED. 2 4. THIS GROUND WAS OMITTED TO BE DISPOSED O FF IN THE IMPUGNED ORDER DUE TO OVERSIGHT. NOW WE ARE TAKING IT UP FOR DISPOSAL. 5. BOTH THE PARTIES AGREE THAT THE FACTS AND CIRCUM STANCES OF THIS GROUND ARE SIMILAR TO THOSE DECIDED BY THE SPECIAL BENCH OF TH E TRIBUNAL IN THE CASE OF M/S.TOPMAN EXPORTS VS. ITO [(2009) 318 ITR (AT) 87 (MUMBAI) (SB)] . THE SPECIAL BENCH VIDE ITS ORDER DATED 11.08.2009 HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERING THE FACE VALU E OF DEPB AS COVERED UNDER SECTION 28 (IIIB) AND THE PROFIT ON TRANSFER OF DEP B I.E., EXCESS OF SALE PRICE OVER THE FACE VALUE OF DEPB AS FALLING UNDER SECTION 28 (IIID). IT HAS FURTHER BEEN HELD THAT THERE IS NO SCOPE FOR ALLOWING SEPARATE DEDUCT ION FOR INDIVIDUAL EXPENSES CONNECTED WITH THE SALE OF DEPB DUE TO THE SCHEME O F SECTION 80HHC. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER ON THIS ISS UE AND DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION UNDER SECTION 80 HHC IN ACCORDANCE WITH THE VIEW TAKEN BY THE SPECIAL BENCH IN THE AFORE NOTED CASE. NEEDLESS TO SAY THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY O F BEING HEARD BY THE AO IN THE FRESH PROCEEDINGS. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED AND THE TRIBUNAL ORDER STANDS RECTIFIED TO THAT EXTENT. ORDER PRONOUNCED ON THIS 4 TH DAY OF JUNE, 2010. SD/- SD/- (N.V.VASUDEVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 4 TH JUNE, 2010. DEVDAS* MA NO.287/MUM/2010 M/S.CREATIVE MOBUS FABRICS LIMITED. 3 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.