DCIT, Moradabad V. M/s. Indian Variety Traders, Moradabad

MA 379/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6039 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 28-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAVI RAMACHAN DRAN
• Keywords: Tax effect
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY(D) NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER MA NO. 379/DEL/2010 (IN ITA NO. 300/D/09) ASSTT. YEAR 2005-06 DY. COMMISSIONER OF INCOME TAX, RANGE-1, MORADABAD. VS. M/S. INDIAN VARIETY TRADERS, LAJPAT NAGAR, MORADABAD. APPELLANT BY: SHRI RAVI RAMACHANDRAN, DR RESPONDENT BY: SHRI PIYUSH KAUSHIK, ADVOCATE ORDER PER RAJPAL YADAV, JM : THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED AT THE INSTANCE OF REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF TRIBUNAL DATED 21 ST AUGUST, 2009. IT IS PLEADED IN THE APPLICATION THAT TRIBUNAL HAS DISMISSED THE APPEAL OF REVENUE IMPUGNING INCLUSION OF DEPB A ND DUTY DRAW BACK RECEIPTS IN THE ELIGIBLE PROFIT FOR GRANT OF D EDUCTION U/S 80IB. THE TRIBUNAL HAS FOLLOWED THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ELTEX SGS LTD. REPORTED 237 ITR 579 . THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT REPORTED IN 317 ITR MA NO. 379/DEL/2010 ASSTT. YEAR 2005- 06 2 218 HAS HELD THAT DEPB RECEIPTS AND DUTY DRAW BACK ARE NOT INCLUDABLE IN THE ELIGIBLE PROFIT FOR COMPUTATION OF DEDUCTION ADMISSIBLE U/S 80IB. IT IS FURTHER PLEADED THAT IN VIEW OF THE HONBLE SUPR EME COURTS DECISION, ORDER OF THE TRIBUNAL IS SUFFERING FROM AN APPARENT ERROR. HENCE, THE ORDER DESERVES TO BE RECALLED AND APPEAL IS TO BE D ECIDED AFRESH. LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND SUB MITTED THAT THOUGH TRIBUNAL HAS DECIDED THE ISSUE ON MERIT BUT OTHERWISE THE TAX EFFECT INVOLVED IN THE APPEAL OF REVENUE IS LESS TH AN ` 2 LACS. HENCE IT DESERVES TO BE DISMISSED ON THAT GROUND ALSO. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND G ONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE WITH REG ARD TO THE PROPOSITION THAT THE POWER OF RECTIFICATION U/S 254 (2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIO US AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENT AND A LONG DRAWN PROCESS OF REASONING ON POINTS WHICH THERE MAY BE CONCEIVABLY BE TWO OPINI ONS. IT IS SETTLED PROPOSITION THAT POWERS U/S 254 (2) CAN BE INVOKED EVEN WHEN AN ISSUE IS DECIDED BY THE JURISDICTIONAL HIGH COURT OR SUPE RIOR COURT SUBSEQUENT TO THE PASSING OF THE ORDER BY THE TRIBUNAL ON THAT ISSUE. THE REASON FOR THIS IS THAT WHEN A COURT INTERPRET THE PROVISION I T DECIDES AS TO WHAT IS THE MEANING AND EFFECT OF THE WORDS USED BY THE LEG ISLATURE. IT IS A DECLARATION REGARDING THE STATUTE. IN OTHER WORDS T HE JUDGMENT DECLARES MA NO. 379/DEL/2010 ASSTT. YEAR 2005- 06 3 AS TO WHAT LEGISLATURE HAS SAID AT THE TIME OF ENAC TMENT OF LAW. THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA HAS DECLARED WHAT THE LEGISLATURE HAD PROVIDED FOR COMPUTING DEDUCTIO N U/S 80IB IN RESPECT OF DEPB RECEIPTS. THUS AFTER THIS DECISION THERE IS NO DEBATE ON THE EXCLUSION OF DEPB RECEIPTS FROM THE ELIGIBLE PROFIT FOR THE PURPOSE OF COMPUTATION OF DEDUCTION ADMISSIBLE U/S 80IB. THE APPLICATION OF THE REVENUE IS MAINTAINABLE. IT HAS POINTED OUT AN APPA RENT ERROR IN THE ORDER OF THE TRIBUNAL. THEREFORE, WE ALLOW THE APPLICATIO N, RECALL OUR ORDER DATED 21 ST AUGUST, 2009 IN ITA NO. 300/D/2009. THE APPEAL IS RESTORED TO ITS ORIGINAL NUMBER AND BE FIXED FOR HEARING ON 18 TH APRIL, 2011. NO SEPARATE NOTICE WILL BE ISSUED TO THE PARTIES. THE DATE OF HEARING HAS BEEN INFORMED IN THE OPEN COURT. IN THE RESULT MISCELLANEOUS APPLICATION OF THE REV ENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7.1.2011. SD/- [SHAMIM YAHYA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7.1.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT MA NO. 379/DEL/2010 ASSTT. YEAR 2005- 06 4 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT