MULTIFORM MACHINERY (BOM ) P.LTD, V. ASST CIT CIR 10(2),

MA 296/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9073 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 15-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJARSHI BWIVEDY
• Assessee Lawyers: R V SHAH
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER & SHRI VIJAY PAL RAO, JUDICIAL MEMBER M.A. NO. 296/M/2012 (ARISING OUT OF I.T.A. NO. 4879/M/2006) ASSESSMENT YEAR 2001-2002 M/S. MULTIFORM MACHIN ERY (BOM) PVT. LTD., 14/15 LAXMI BHAVAN, GHATKOPAR (EAST), MUMBAI 400 077. PAN:AAACM4747R VS. THE ACIT, CIRCLE 10(2), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.V. SHAH, AR RESPONDENT BY : SHRI RAJARSHI BWIVEDY, DR DATE OF HEARING: 07.09.2012 DATE OF ORDER: 07.09.2012 O R D E R PER R.S. SYAL, AM: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E ARISES OUT OF THE ORDER OF ITAT B BENCH, MUMBAI IN ITA NO. 4879/M/2006 ( AY: 2001-2002) DATED 14 TH SEPTEMBER, 2011. 2. THE LEARNED AR CONTENDED THAT THE TRIBUNAL WHILE DISPOSING OF FIRST ISSUE IN THE ASSESSEES APPEAL ON THE QUESTION OF NETTING OFF INTEREST U/S 80HHC RELIED ON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ASIAN STAR CO. LTD. (2010) 326 ITR 56 (BOM) AND D ECIDED THE ISSUE AGAINST THE ASSESSEE BY HOLDING THAT THE NETTING OFF INTEREST I S NOT ALLOWABLE FOR THE PURPOSES M.A. NO. 296/M/2012 2 OF DEDUCTION U/S 80HHC. IT WAS SUBMITTED THAT THE AFORE NOTED JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IS NO MORE A GOO D LAW IN VIEW OF THE LATER JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F ACG ASSOCIATED CAPSULES (P.) LTD. VS. CIT (2012) 343 ITR 89 (SC). IT WAS, THEREFORE, CONTENDED THAT THE NECESSARY CORRECTION BE MADE IN THE IMPUGNED ORDERS TO BRING IT IN CONFORMITY WITH THE AFORENOTED JUDGMENT OF THE HONBLE SUPREME COURT. NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DR. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE TRIBUNAL DID NOT ALLOW NETTING OFF INTEREST FOR THE PURPOSES OF DEDUCTION U/S 80HHC BY RELYING ON THE J UDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. AS IAN STAR CO. LTD. (SUPRA). SUBSEQUENTLY, THE HONBLE SUPREME COURT IN THE CASE OF ACG ASSOCIATED CAPSULES (P.) LTD (SUPRA) HAS HELD NETTING OFF INTE REST IS PERMISSIBLE U/S 80HHC. IN VIEW OF THE ABOVE REFERRED LATER JUDGMENT OF THE HONBLE SUPREME COURT ON THIS ISSUE, IT BECOMES APPARENT THAT THIS TRIBUNAL ORDER, FOLLOWING THE EARLIER JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT W HICH IS CONTRARY TO THAT OF LATEST JUDGMENT OF THE HONBLE SUPREME COURT, HAS B ECOME ERRONEOUS AMENABLE TO RECTIFICATION. WE, THEREFORE, RECTIFY THE IMPUG NED ORDER AND HOLD THAT THE ASSESSEE IS ENTITLED TO NETTING OFF INTEREST FOR TH E PURPOSES OF SECTION 80HHC. PARA 4 OF THE IMPUGNED ORDER BE ACCORDINGLY SUBSTIT UTED AND CONSIDERED AS M.A. NO. 296/M/2012 3 DECIDING THE SECOND SEGMENT OF THE GROUND IN FAVOUR OF THE ASSESSEE AS AGAINST THE EARLIER VIEW TAKEN IN REVENUES FAVOUR. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. SD/- SD/- (VIJAY PAL RAO) (R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT ME MBER DATE : 07.09.2012 AT :MUMBAI OKK COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT 3. THE CIT (A), CONCERNED. 4. THE CIT CONCERNED. 5. THE DR B, BENCH, ITAT, MUMBAI. 6. GUARD FILE. // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI