CEN CIR 39, V. CELLO CORITING INST. & CONT P.LTD,

MA 354/MUM/2009

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4795 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 18-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: DHANESH BAFANA
• Keywords: Tax effect
• Section: 80HHC; 6; 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE SHRI C.N. PRASAD , JM AND SHRI RAJESH KUMAR , AM MISC. APP LICATION NO.354/MUM/2009 ARISING OUT OF I.T.A. NO . 400 /MUM/20 06 ( / ASSESSMENT YEAR: 200 3 - 04 ) COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 39, MUMBAI / VS. CELLO WRITING INST. AND CONT P LTD 5,VAKIL INDL. ESTATE, WALBHAT ROAD, GOREGAO N (E), MUMBAI. ./ ./ PAN : AABCC2211P ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY KUMAR BORA /RESPONDENT BY : S /S HRI DHANESH BAFANA AND RAVI SAWANA / DATE OF HEARING : 12.08 .2016 / DATE OF PRONOUNCEMENT : 16. 9.2016 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE REVENUE IS SEEKING TO RECTIFY THE ORDER DATED 28.8.2007 PASSED B Y THE CO - ORDINATE BENCH OF THE TRIBUNAL, REQUESTING THEREIN TO UPHOLD THE ORDER PASSED U/S 263 BY THE COMMISSIONER ON THE GROUND THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE ISSUE INVOLVED IN THIS 2 MA NO.354/M/2009 IN ITA NO. 400 /MUM/20 06 CASE QUA THE CLAIM OF DEDUCTION U/S 80HHC IS OF SUPPORTING MANUFACTURER OF M /S CELLO WRITING INSTRUMENT AND CONST . P LTD WHICH WAS THE EXPORT HOUSE. THE CONTENTION OF THE REVENUE IS THAT THE EXPORT HOUSE IS NOT ELIGIBLE FOR THE BENEFIT OF SECTION 80HHC AS THE ELIGIBLE DEDUCTION ON AGGREGATION OF DEDUCTION CALCULATED ON TRADING EXPORT AND MANUFACTURING EXPORTS WAS NEGATIVE BY RELYING ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF IPCA LABORATORIES REPORTED IN 266 ITR 521 . 2 . THE LD.AR, AT THE OU TSET SUBMITTED THAT THE TAX EFFECT INVOLVED IN ITA NO.400/M/2006 WHICH IS SOUGHT TO BE RECALL ED VIDE MA NO.354/M/2009 DATED 15 TH MAY, 2009 WAS LESS THAN RS.10 LAKHS AND THEREFORE, THE MA AS FILED BY THE REVENUE RECALLING THE ORDER PASSED BY THE ITAT BE SET ASIDE AS THE ORDER PASSED BY THE COMMISSIONER W A S NOT MAINTAINABLE AS PRESCRIBED BY THE CENTRAL BOARD OF DIRECTOR TAXES(CBDT), VIDE ITS CIRCULAR NO.21/2015(F.NO.L42/2007 - ITJ (PT.) DATED 10TH DECEMBER, 2015. 3 . THE LD. DR ALSO FAIRLY AGREED WITH THE SUBMISSIONS OF THE LD.AR. 4 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS OF THE PARTIES. WE FIND THAT IN THE ORDER SOUGHT TO BE RECALLED BY THIS MISCELLANEOUS APPLICATION THE TAX EFFECT INVOLVED IN THIS MATTER IS LESS THAN RS.10 LAKHS AND THE REFORE BY FOLLOWING THE CBDT CIRCULAR DATED 10.12.2015 (SUPRA), THE MISC . APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE AND HENCE DISMISSED. 3 MA NO.354/M/2009 IN ITA NO. 400 /MUM/20 06 5 . IN RESULT THE , THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH SEPT , 201 6 SD SD ( C.N. PRASAD ) ( RAJESH KUMAR) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 16. 09. 201 6 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI DATE INITIALS 1. DRAFT DICTATED ON 12.8.2016 SPS 2. DRAFT PLACED BEFORE AUTHOR 16.9.2016 SPS 3. DRAFT PROPOSED & PLACE D BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM 5. APPROVED DRAFT COMES TO THE SR. PS SPS 6. KEPT FOR PRONOUNCEMENT ON SPS 7. FILE SENT TO THE BENCH CLERK SPS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 4 MA NO.354/M/2009 IN ITA NO. 400 /MUM/20 06 9. DATE ON WHICH FILE GOES TO A.R. 10. DATE OF DISPATCH OF ORDER