ACIT II, V. Wazir Chand and Co. Pvt Ltd,

MA 345/DEL/2010

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0386 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2002-2003
• Appeal Filed On: 05-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Assessee Lawyers: MONA MOHANTY
• Section: 80IB; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER MISC. APPLICATION NO.345/DEL/2010 IN I.T.A. NO.1081 /DEL/2008 ASSESSMENT YEAR : 2002-03 ACIT, M/S W AZIR CHAND HANDICRAFTS, CIRCLE-1, KOTHIWAL NAGAR, MORADABAD. V. MORADABAD. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAFW AAFW AAFW AAFW - -- -2553 2553 2553 2553- -- -L LL L APPELLANT BY : SMT. MONA MOHANTY, SR. DR. RESPONDENT BY : SHRI PK MISHRA, C.A. ORDER PER A.K. GARODIA, AM: THIS MISC. APPLICATION IS FILED BY THE REVENUE POINTING OUT A MISTAKE IN THE TRIBUNAL ORDER DATED 11.8.2009. IT HAS BEEN SUBMITTED B Y THE REVENUE IN THE M.A. THAT AS PER THIS TRIBUNAL ORDER, THE TRIBUNAL HAS ALL OWED DEDUCTION TO THE ASSESSEE U/S 80IB OF THE ACT ON EXPORT INCENTIVES BY FOLLOWING THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT V. ELTEK SGS PVT. LT D. AS REPORTED IN 300 ITR 6. IT IS SUBMITTED THAT AS PER LATER JUDGMENT OF HON'BL E APEX COURT RENDERED IN THE CASE OF LIBERTY INDIA LTD. V. CIT AS REPORTED IN 317 IT R 218 (SC), IT WAS HELD BY THE HON'BLE APEX COURT THAT DEDUCTION U/S 80IB IS NOT ALLO WABLE IN RESPECT OF EXPORT PAGE 2 OF 5 MA NO.345 IN ITA NO1081/DEL/10 INCENTIVES BEING DUTY DRAW BACK OR DEPB. IT HAS BEEN CLA IMED IN THE M.A. THAT IN VIEW OF THIS JUDGMENT OF HON'BLE APEX COURT, THERE IS A MISTAKE IN THE TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED. 2. IN THE COURSE OF HEARING BEFORE US, LD DR OF THE REVENUE REITERATED THE SAME ARGUMENTS. IT WAS SUBMITTED THAT AS PER THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF ACIT V. SAURASHTRA KUTCH STOCK E XCHANGE LTD. AS REPORTED IN 305 ITR 227, EVEN A SUBSEQUENT JUDGMENT OF HON'BLE APEX CO URT OF OR JURISDICTIONAL HIGH COURT WILL RENDER THE TRIBUNAL ORDER ERRONEOUS IF SU CH TRIBUNAL ORDER IS NOT IN LINE WITH SUCH SUBSEQUENT JUDGMENT AND SUCH ERROR IN TH E TRIBUNAL ORDER IS RECTIFIABLE U/S 254(2) OF THE ACT. 3. AS AGAINST THIS, LD AR OF THE ASSESSEE SUBMITTED THA T THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LIBERTY INDIA LTD. (SUP RA) IS DATED 31.9.2009 WHEREAS THE IMPUGNED TRIBUNAL ORDER IS DATED 11.8.2009 AN D SINCE THE JUDGMENT OF HON'BLE APEX COURT HAD BEEN RENDERED AFTER THE DATE OF THE IM PUGNED TRIBUNAL ORDER, IT IS NOT A APPARENT MISTAKE RECTIFIABLE U/S 25 4(2). AT THIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT IT HAS BEEN HELD BY HON'BL E APEX COURT IN THE CASE OF ACIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) T HAT EVEN IF THE TRIBUNAL DECISION IS NOT IN LINE WITH A SUBSEQUENT JUDGMENT OF HO N'BLE APEX COURT OR OF JURISDICTIONAL HIGH COURT, SUCH A TRIBUNAL ORDER IS RECTIFIABLE U/S 254(2)F THE ACT TO BRING THAT ORDER IN LINE WITH THE SUBSEQUENT DECISION OF HON'BLE APEX COURT OR OF JURISDICTIONAL HIGH COURT BECAUSE JUDGES DO NOT MAKE LA W AND THEY ONLY DISCOVER THE POINT OF CORRECT LAW AND IT HAS TO BE ACCEPTED THAT THE LAW HAS ALWAYS BEEN THE SAME. IN REPLY, LD AR OF THE ASSESSEE HAD NOTHING TO SAY. IT WAS ALSO POINTED OUT BY THE BENCH THAT SINCE THE ISSUE IS NOW SQUARELY COVERED AGAI NST THE ASSESSEE BY THIS JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT V. LIBERTY INDIA LTD. PAGE 3 OF 5 MA NO.345 IN ITA NO1081/DEL/10 (SUPRA), THE ORDER IS RECTIFIED AND NOT RECALLED. IN REPL Y TO THIS ALSO, LD AR OF THE ASSESSEE HAD NOTHING TO SAY. 4. WE HAVE HEARD THE SUBMISSIONS OF BOTH SIDES. WE FIND T HAT AS PER THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD, (SUPRA), EVEN IF AS PER A SUBSEQUENT J UDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT OR OF HON'BLE APEX COURT, T HE TRIBUNAL ORDER IS NOT IN LINE WITH SUCH JUDGMENT OF HON'BLE JURISDICTIONAL HIGH CO URT OR OF HON'BLE APEX COURT, SUCH A TRIBUNAL ORDER IS RECTIFIABLE U/S 254(2) AND HEN CE, IN THE PRESENT CASE, WE HOLD THAT THE TRIBUNAL ORDER DATED 11,.8.2009 IS TO BE RECTIFIED U/S 254(2) OF THE ACT BECAUSE THE SAME IS NOT IN LINE WITH THE SUBSEQUENT JUDGM ENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT V. LIBERTY INDIA LTD (SUPRA) IN WHICH IT WAS HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IB IN RESPECT O F EXPORT INCENTIVES BEING DUTY DRAW BACK OR DEPB. WE, THEREFORE, RECTIFY THE DECISI ON TAKEN BY THE TRIBUNAL IN ORDER DATED 11.8.2009 AND HOLD THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB IN RESPECT OF EXPORT INCENTIVES I.E. DUTY DRAW BACK RECEIVED BY THE ASSESSEE OF `.14,75,225/- BY FOLLOWING THE JUDGMENT OF HON'BLE AP EX COURT RENDERED IN THE CASE OF CIT V. LIBERTY INDIA LTD. (SUPRA). CONSEQUENTL Y, THE RESULT OF THE ASSESSEES APPEAL IS ALSO CHANGED AND IT IS HELD THAT THE APPEAL OF THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION OF THE REVENUE ST ANDS ALLOWED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARI NG I.E. 4 TH MARCH, 2011. (A.D. JAIN) (A.K. GAROD IA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 04.3.2011. PAGE 4 OF 5 MA NO.345 IN ITA NO1081/DEL/10 HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). PAGE 5 OF 5 MA NO.345 IN ITA NO1081/DEL/10