KOBIAN ELECTRONICS INDIA P.LTD, V. ITO WD 6(2)(4),

MA 369/MUM/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9858 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: RAHUL K HAKANI; DR K SHIVARAM
• Keywords: Business income
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, G MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA NO: 369/MUM/2012 ARISING OUT OF : ITA NO.4877/MUM/2009 ASSESSMENT YEAR : 2006-07 M/S. KOBIAN ELECTRONICS INDIA PVT. LTD., 3, CHUNILAL MEHTA COMPOUND, HARISH ARJUN PALAV MARG, VICTORIA GARDEN, MUMBAI-27 P.A. NO.(AABCK 5701 C) INCOME TAX OFFICER WARD-6(2)(4) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : DR. K. SHIVARAM & SHRI RAHUL K. HAKANI RESPONDENT BY : SHRI O.P. MEENA DATE OF HEARING : 18.01.2013 DATE OF PRONOUNCEMENT : 23.01.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR AMENDMENT OF THE ORDER DATED 25.1.20 12 OF THE TRIBUNAL POINTING OUT SOME APPARENT MISTAKE. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE H AS SUBMITTED THAT THE TRIBUNAL VIDE ORDER IN PARA 2.3 HAS RESTORED THE IS SUE OF TAXABILITY OF DUTY DRAWBACK AND DEPB CREDIT TO THE FILE OF AO TO BE DE CIDED AFRESH IN THE LIGHT OF THE JUDGMENT OF HON'BLE HIGH COURT OF BOMBAY IN CASE OF CIT VS. MA NO.369/M/12 ARISING OUT OF ITA N O. 4877/M/09 A.Y: 06-07 2 KALPATARU COLOURS AND CHEMICALS (328 ITR 451), IN W HICH THE HON'BLE HIGH COURT HELD THAT BOTH FACE VALUE OF DEPB CREDIT AND PROFIT IN CASE OF SALE HAS TO BE ASSESSED AS INCOME UNDER SECTION 28(III)(D) A ND DEDUCTION UNDER SECTION 80HHC TO BE COMPUTED ACCORDINGLY. IT HAS BEEN POINT ED OUT THAT SUBSEQUENTLY HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT (342 ITR 49) REVERSED THE JUDGMENT OF HON'BLE HIGH COURT OF BOMB AY AND UPHELD THE VIEW TAKEN BY THE SPECIAL BENCH IN CASE OF TOPMAN EXPOR TS (318 ITR(AT)87). THEREFORE, THERE IS AN APPARENT MISTAKE IN THE ORDE R OF THE TRIBUNAL WHICH IS REQUIRED TO BE RECTIFIED. 3. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECO RDS AND CONSIDERED MATERIAL CAREFULLY. THE DISPUTE RAISED IN THE APPEA L WAS REGARDING TAXABILITY OF INCOME ON ACCOUNT OF DEPB INCOME AND DUTY DRAWBACK. THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (SUPR A), HAD TAKEN THE VIEW THAT FACE-VALUE OF DEPB CREDIT HAS TO BE CONSIDERED AS B USINESS INCOME UNDER SECTION 28(III)(B) AND SALE PRICE IN EXCESS OF FACE -VALUE HAS TO BE CONSIDERED AS BUSINESS PROFIT UNDER SECTION 28(III)(D) AND DEDUCT ION UNDER SECTION 80HHC HAS TO BE COMPUTED ACCORDINGLY. THE SAID DECISION O F THE SPECIAL BENCH WAS NOT UPHELD BY THE HON'BLE HIGH COURT IN CASE OF KAL PATARU COLORS AND CHEMICALS (SUPRA), IN WHICH IT WAS HELD THAT FACE V ALUE AND PROFIT BOTH HAVE TO BE CONSIDERED AS BUSINESS INCOME UNDER SECTION 28(I IID). THE SAID JUDGMENT OF THE HON'BLE HIGH COURT HAS BEEN REVERSED BY THE HON 'BLE SUPREME COURT IN CASE OF TOPMAN EXPORTS (SUPRA) IN WHICH THE VIEW TA KEN BY THE SPECIAL BENCH HAS BEEN UPHELD . THE TRIBUNAL IN CASE OF THE ASSES SEE HAD RESTORED THE MATTER MA NO.369/M/12 ARISING OUT OF ITA N O. 4877/M/09 A.Y: 06-07 3 TO THE FILE OF AO TO BE DECIDED AFRESH IN THE LIGHT OF THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN CASE OF KALPATARU COLOURS AND CHEMICALS (328 ITR 451), (SUPRA). SINCE THE JUDGMENT OF THE HON'BLE HI GH COURT HAS BEEN REVERSED BY THE HON'BLE SUPREME COURT, THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL AS SUBSEQUENT JUDGMENT OF HON'BLE SUPREME COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD. WE, THEREFORE, AMEND OUR DECISION IN PARA 2.3 OF THE ORDER BY HOLDING THAT THE ISSUE IS RESTORED TO THE AO WHO WILL DECIDE THE ISSUE IN THE LIGHT OF JUDGMENT OF HON'BLE SUPREME C OURT IN CASE OF TOPMAN EXPORTS (SUPRA). 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.01.2013. SD/- SD/- (AMIT SHUKLA) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUN TANT MEMBER MUMBAI, DATED: 23.01.2013. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.