ABHIDEEP CHEMICALS P LTD, V. DCIT RG 10(1),

MA 447/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7268 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Assessee Lawyers: PARAS S SAVLA
• Section: 80HHC; 80IB; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA S INGH,(AM) MA NO.447/MUM/2011 ARISING OUT OF ITA NO.3186/M/2007 ASSESSMENT YEAR : 2003-04 M/S. ABHIDEEP CHEMICALS PVT. LTD. 208, KESHAVA, BKS BANDRA (E) MUMBAI-400 051. ..( APPLICANT ) P.A. NO. (AAACA 5336 N) VS. DY. COMMISSIONER OF INCOME TAX RANGE 10(1) AAYAKAR BHAVAN, M.K. ROAD MUMBAI. ..( RESPONDENT ) APPLICANT BY : SHRI PARAS S. SAVLA RESPONDENT BY : SHRI A LEXANDER CHANDY DATE OF HEARING : 11.11.11 DATE OF PRONOUNCEMENT : 16.11.11 O R D E R PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSE SSEE REQUESTING TO AMEND THE ORDER DATED 22.7.2009 OF THE TRIBUNAL IN ITA NO.3186/MUM/2007. THE MISTAKE POINTED OUT RELATES TO COMPUTATION OF DEDUCTION UNDER SECTION 80 HHC. THE ASSESSEE FOR THE REL EVANT YEAR HAD CLAIMED DEDUCTION UNDER SECTION 80HHC AND 80IB A MOUNTING TO RS.27,14,243/- AND RS.34,22,062/- RESPECTIVELY. T HE ASSESSEE HAD CLAIMED DEDUCTION WITH RESPECT TO THE SAME PROFIT OF THE INDUSTRIAL UNDERTAKING. THE AO HOWEVER HAD REDUCED THE DEDUC TION ALLOWABLE MA NO.447/M/10 A.Y:03-04 2 UNDER SECTION 80IB FROM THE PROFIT OF BUSINESS AND ALLOW ED DEDUCTION UNDER SECTION 80 HHC IN RESPECT OF THE REDUCED PROFIT. CI T(A) SET ASIDE THE ORDER OF AO AND ALLOWED THE CLAIM OF THE A SSESSEE. HOWEVER ON FURTHER APPEAL THE TRIBUNAL VIDE ORDER DATED 22. 7.2009 IN ITA NO.3186/MUM/2007 HAD REVERSED THE ORDER OF CIT(A) F OLLOWING THE DECISION OF THE SPECIAL BENCH IN THE CASE OF ACIT VS. HINDU STAN MINT & AGRO PRODUCTS (119 ITD 107) IN WHICH IT WAS HELD THAT D EDUCTION UNDER SECTION 80 HHC HAS TO BE ALLOWED IN RESPECT OF REDUCED PROF IT AFTER DEDUCTING THE DEDUCTION ALLOWABLE UNDER SECTION 80 IB. SUBSEQUENTLY THE HONBLE BOMBAY HIGH COURT IN CASE OF ASSOCIATED CAPSUL ES P. LTD. VS. DCIT (332 ITR 42) HAVE NOT UPHELD THE DECISION OF THE SPECIAL BENCH AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. CON SEQUENT TO THE SAID JUDGMENT THE ASSESSEE HAS FILED THE MISCELLANEOUS APPLICATION TO AMEND THE ORDER OF THE TRIBUNAL. 2. WE HAVE BOTH THE PARTIES, PERUSED THE RECORDS AND CON SIDERED THE MATTER CAREFULLY. THE SPECIAL BENCH OF THE TRIBUNA L IN CASE OF ACIT VS. HINDUSTAN MINT & AGRO PRODUCTS (SUPRA), HAD EARLIER HELD THAT DEDUCTION UNDER SECTION 80 HHC WOULD BE ALLOWABLE IN RESP ECT OF THE BUSINESS PROFIT OF THE UNDERTAKING AFTER REDUCING THE D EDUCTION ALLOWABLE UNDER SECTION 80IB. FOLLOWING THE SAID DECISI ON THE TRIBUNAL IN CASE OF THE ASSESSEE IN ITA NO.3186/MUM/2007 HELD THA T DEDUCTION UNDER SECTION 80 HHC WOULD BE ALLOWED IN RESPECT OF THE REDUCED PROFIT AFTER DEDUCTING THE DEDUCTION ALLOWABLE UNDER SECTION 8 0IB. HOWEVER, SUBSEQUENTLY THE HONBLE HIGH COURT OF BOMBAY IN CASE OF ASSOCIATED CAPSULES P. LTD. VS. DCIT (SUPRA), HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE SUBSEQUENT JUDGMENT OF JURISDICTIONAL HIG H COURT OR THE HONBLE APEX COURT CAN BE THE BASIS OF RECTIFICATION OF AN ORDER MA NO.447/M/10 A.Y:03-04 3 PASSED PRIOR TO THE JUDGMENT RENDERED AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH S TOCK EXCHANGE LTD. (305 ITR 227). WE, THEREFORE, FOLLOWI NG THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN CASE OF ASSOCIATED CAPSULES P. LTD. VS. DCIT (SUPRA) AMEND THE ORDER AND CONFIRM THE ORDER OF CIT(A) ALLOWING DEDUCTION UNDER SECTION 80HHC AND 80IB WITH RE SPECT TO THE SAME PROFIT OF BUSINESS WITHOUT MAKING ANY DEDUCTION SUBJ ECT TO THE CONDITION THAT AGGREGATE DEDUCTION UNDER SECTION 80HHC AN D 80IB WILL NOT EXCEED THE PROFIT OF THE BUSINESS OF THE UNDERTAKIN G. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.11. SD/- SD/- (D.K. AGARWAL) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16.11.2011. 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.