AL-HABIB ENGINEERING (I) P.LTD, V. ITO 6(1)(2),

MA 350/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1147 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 05-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 80HHC; 115JB

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI .. , .. , BEFORE SHRI I.P. BANSAL, JM AND SHRI P.M. JAGTAP, A M 350 /MUM/2012 ARISING OUT OF ITA NO. 4701/MUM/2008 ( / ASSESSMENT YEAR 2005-06) M/S AL - HABIB ENGINEERING (INDIA) PVT. LTD., 91/3, MOHAMEDALI ROAD, 46/47 RANGOONWALA BUILDING, MUMBAI 400 003. / VS. THE ITO 6(1) - 2, ROOM NO. 503, AAYAKAR BHAVAN, MUMBAI. . / PAN :AAACA33791 (APPLICANT) .. RESPONDENT ) APPLICANT B Y : SHRI KALPESH TURALKAR RESPONDENT B Y : SHRI SURENDRA KUMAR & ( / DATE OF HEARING : 29-11-2013 & ( / DATE OF PRONOUNCEMENT : 29-11-2013 / O R D E R PER P.M. JAGTAP, A.M . : .. , BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 13-8-2009 PASSED IN ITA NO. 3062/MUM/2008. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE SOLITARY ISSUE INVOLVED IN THE APPEAL OF THE REVENUE BEING ITA NO. 3062/MUM/2008 WAS DECIDED BY THE TRIBUNAL VIDE ORDER DATED 13-8- 2009 RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF AJANTA PHARMA LIMITED (IT APPEAL NO. 1005 OF 2008) BY HOLDING THAT THE DEDUCTION U/S 80HHC OF THE INCOME TAX ACT, 1961 ACT UALLY ALLOWABLE UNDER SUB SEC. (1B) OF SECTION 80HHC OF THE ACT WILL BE A LLOWED AS DEDUCTION WHILE MA 350/MUM/2012 2 COMPUTING THE BOOK PROFIT U/S 115JB OF THE ACT. AS FURTHER SUBMITTED ON BEHALF OF THE ASSESSEE, THE DECISION OF HONBLE BOM BAY HIGH COURT IN THE CASE OF AJANTA PHARMA LIMITED (SUPRA) HOWEVER, HAS BEEN SUBSEQUENTLY OVERRULED BY THE HONBLE SUPREME COURT BY JUDGMENT REPORTED I N 327 ITR 305 (SC) WHEREIN IT WAS HELD THAT FOR DETERMINING THE BOOK P ROFIT IN TERMS OF SECTION 115JB, THE NET PROFIT AS SHOWN IN THE P&L ACCOUNT H AVE TO BE REDUCED BY THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION ALLOWABLE U/S 80HHC OF THE ACT AND NOT BY THE AMOUNT OF DEDUCTION ALLOWABLE U/S 80HHC OF THE ACT. AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE AND E VEN ACCEPTED BY THE LD. D.R., THE DECISION OF THE TRIBUNAL RENDERED VIDE OR DER DATED 13-8-2009 THUS IS NOT IN CONFORMITY WITH THE VIEW SUBSEQUENTLY TAK EN BY THE HONBLE SUPREME COURT IN THE CASE OF AJANTA PHARMA LIMITED (SUPRA). IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE REPORTED IN 305 ITR 227,THE HO NBLE SUPREME COURT HELD THAT THE JUDGMENT OF THE SUPREME COURT ALTHOUG H RENDERED SUBSEQUENTLY GIVES RISE TO A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH IS NOT IN CONFORMITY WITH THE SAID D ECISION. KEEPING IN VIEW THE SAID DECISION OF THE HONBLE APEX COURT, WHICH IS CLEARLY APPLICABLE IN THE PRESENT CONTEXT, WE RECALL THE ORDER OF THE TRIBUNA L DATED 13-8-2009 (SUPRA) AND RESTORE THE APPEAL OF THE REVENUE TO ITS ORIGIN AL NUMBER FOR DECIDING THE SAME AFRESH ON THE ISSUE INVOLVED IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF AJANTA PHARMA LIMITED (SUPRA). THE REGISTRY IS DIRECTED TO POST THE SAME FOR HEARING ON 20-02-2014 AS ANNOUNCED IN THE OPEN COURT AND TAKEN NOTE OF THE LD. REPRESENTATIVE S OF BOTH THE SIDES. 3. IN THE RESULT, MISC. APPLICATION FILED BY THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-11-2013. . & . / 29-11-2013 & SD/- SD/- (I.P. BANSAL) ( P.M. JAGTAP ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; / DATED 29-11-2013 .../ RK , SR. PS MA 350/MUM/2012 3 ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. 8 / THE APPELLANT 2. 9:8 / THE RESPONDENT. 3. ; () / THE CIT(A)- CONCERNED, MUMBAI CONCERNED 4. ; / CIT CONCERNED, MUMBAI CONCERNED 5. 9? , ( ? , / DR, ITAT, MUMBAI G BENCH 6. A / GUARD FILE. / BY ORDER, : 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI