MACRO BARS & WIRRES INDIA P. LTD, V. CIT RG 5,

MA 387/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0085 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 15-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P R TOPRANI
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , ! '# $ $ $ $ '% &', ( '# ') BEFORE SHRI DINESH KUMAR AGARWAL, JM AND SHRI SANJAY ARORA, AM ** './ M.A. NO. 387/MUM/2012 ARISING OUT OF ITA NO.328 & 329/MUM/2008 ( ! / 0/ ! / 0/ ! / 0/ ! / 0/ / / / / ASSESSMENT YEARS : 1999-2000 AND 2001-02) M/S MACRO BARS & WIRES INDIA P. LTD., 702 BOMBAY MARKET BUILDING, TARDEO, MUMBAI 400 034. / VS. THE ASSTT.COMMISSIONER OF INCOME-TAX,RANGE 5(2), MUMBAI. #1 ( './ PAN : AAACM3526C ( 12 / // / APPELLANT ) .. ( 3412 / RESPONDENT ) 12 5 6 ' / APPELLANT BY : SHRI P.R. TOPRANI 3412 5 6 ' / RESPONDENT BY : SHRI MANOJ KUMAR ' 5 7( / // / DATE OF HEARING : 01-02-2013 8&0 5 7( / DATE OF PRONOUNCEMENT : 08-02-2013 / O R D E R PER DINESH KUMAR AGARWAL, JM. : THIS MISC. APPLICATION FILED BY THE ASSESSEE IS DIR ECTED AGAINST THE COMMON ORDER DTD. 19-11-2010 PASSED BY THE TRIBUNAL IN ITA NO. 328 & 329/MUM/2008 FOR ASSESSMENT YEARS 1999-2000 & 2001- 02. . M.A. NO. 387/MUM/2012 2 2. IN THE MISC. APPLICATION DTD. JUNE 2012 IT WAS, INTER ALIA, SUBMITTED BY THE ASSESSEE THAT THE TRIBUNAL HAS DISMISSED THE AS SESSEES GROUND NO. 1.1 AND 1.2 FOR THE ASSESSMENT YEARS 1999-2000 & 2000-0 1 FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT (2009) 317 ITR 218 (SC). IT WAS FURTHER SUBMITTED THAT SUBSEQU ENTLY THE HONBLE SUPREME COURT IN TOPMAN EXPORTS VS. CIT (2012) 342 ITR 49 ( SC) ON THE WORKING OF DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (THE ACT) HELD THAT NOT THE ENTIRE SALE PROCEEDS OF DEPB LICENCE BE EXCLUDED FR OM THE PROFITS ALLOWABLE FOR DEDUCTION U/S 80IB OF THE ACT BUT ONLY PROFIT ON SA LE OF DEPB LICENCE ARE REQUIRED TO BE EXCLUDED I.E. AFTER NETTING. IT WAS , THEREFORE, SUBMITTED THAT NON-CONSIDERATION OF THE DECISION OF HONBLE SUPREM E COURT IN TOPMAN EXPORTS (SUPRA) IS A MISTAKE APPARENT FROM RECORD W HICH SHOULD BE RECTIFIED. IN THIS REGARD THE RELIANCE WAS ALSO PLACED ON THE CBDT CIRCULAR NO. 68 DTD. 17-11-1971 AND THE DECISION OF HONBLE MADRAS HIGH COURT IN KUPPUSWAMY MUDALIAR & CO. VS. BOARD OF REVENUE 45 STC 152 (MAD RAS). IT WAS, THEREFORE, SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL BE RECTIFIED. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE SUBMITS THAT FOR THE REASONS MENTIONED IN THE MISC. APPLICATION, THE ORDER PASSED BY THE TRIBUNAL BE MODIFIED. 4. ON THE OTHER HAND, THE LD. D.R. SUBMITS THAT THE RE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS CORRECTLY APPLIED THE DECISION OF THE M.A. NO. 387/MUM/2012 3 HONBLE SUPREME COURT IN LIBERTY INDIA (SUPRA), THE REFORE, THE MISC. APPLICATION FILED BY THE ASSESSEE BE REJECTED. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE CLAIM OF THE ASSESSEE IS PERTAINING TO DEDUCTION U/S 80IB OF THE ACT. THE T RIBUNAL AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PLE A TAKEN BY THE PARTIES, HAS FOLLOWED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF LIBERTY INDIA (SUPRA) WHICH IS DIRECTLY ON THE ISSUE INVOLVED. A T THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE HAS FAILED TO POINT OUT AS TO HOW THE PROFITS ON THE SALE OF DEPB LICENCE BEAR A CHARACTER DIFFERENT FRO M THE SALE PROCEEDS ITSELF. HE HAS ALSO FAILED TO POINT OUT AS TO HOW THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) WHICH WAS RENDER ED IN THE CONTEXT OF DEDUCTION U/S 80HHC OF THE ACT IS APPLICABLE TO THE FACTS OF THE PRESENT CASE. THIS BEING SO AND KEEPING IN VIEW THAT THE ASSESSEE WANTS TO REVIEW WHICH IS NOT PERMISSIBLE UNDER SCHEME OF SECTION 254(2) OF T HE ACT, WE HOLD THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE MIS C. APPLICATION FILED BY THE ASSESSEE IS, THEREFORE, REJECTED. 6. IN THE RESULT, ASSESSEES MISC. APPLICATION STAN DS DISMISSED. 9 7: ! /97 5 ** (9% 5 %7 ;< M.A. NO. 387/MUM/2012 4 ORDER PRONOUNCED IN THE OPEN COURT ON 8-02-2013 . 5 8&0 ( : 8-02-2013 & 5 C SD/- SD/- (SANJAY ARORA) (DINES H KUMAR AGARWAL) ( '# / ACCOUNTANT MEMBER ! '# / JUDICIAL MEMBER MUMBAI; DATED 8-02-2013 .!.'./ R.K. , SR. PS 5 3!7D* *07 5 3!7D* *07 5 3!7D* *07 5 3!7D* *07/ COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. 3412 / THE RESPONDENT . 3. E () / THE CIT(A)-CONCERNED, MUMBAI 4. E / CIT CONCERNED, MUMBAI 5. *HC 3!7! , , / DR, ITAT, MUMBAI B BENCH 6. CI/ J / GUARD FILE. '4*7 3!7 // TRUE COPY // ' ' ' ' / BY ORDER, K KK K/ // /'; % '; % '; % '; % (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI