DIVA EXPORT P. LTD, V. ITO WD 8(1)(3),

MA 480/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7822 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 19-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: KEYURI DESAI
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI D.K.AGARWAL, JM M.A.NO.480/MUM/2011 (ARISING OUT OF ITA NO.2584/MUM/2010 : ASST. YEAR 2 004-2005) M/S.DIVA EXPORTS PRIVATE LIMITED MODERN INDUSTRIAL ESTATE 15 MAHAL INDUSTRIAL ESTATE OFF. MAHAKALI CAVES ROAD ANDHERI (EAST), MUMBAI 400 093. PAN : AABCD2491E. THE INCOME TAX OFFICER WARD 8(1)(3) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI PANKAJ R.TOPRANI & MS.KEYURI DE SAI RESPONDENT BY : SHRI JITENDRA YADAV DATE OF HEARING : 16.03.2012 DATE OF PRONOUNCEMENT : 16.03.2012 O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 25.02.2011 IN ITA NO.2584/MUM/2010. 2. THE LEARNED AR CONTENDED THAT THE TRIBUNAL VIDE EX PARTE ORDER HAS RESTORED THE MATTER TO THE FILE OF A.O. FOR TAKING A FRESH D ECISION ON THE QUESTION OF DEDUCTION U/S 80HHC ON DEPB IN THE LIGHT OF THE JUD GMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. KALPATARU COLOURS AND CHEMICALS [(2010) 192 TAXMAN 432 (BOM.)] . THE LEARNED A.R. CONTENDED THAT THE SAID JUDGMENT HAS BEEN REVERSED BY THE HONBLE SUPREME C OURT IN TOPMAN EXPORT V. CIT [(2012) 67 DTR (SC) 189] . COPY OF THE LATTER JUDGMENT HAS BEEN PLACED ON RECORD. IT WAS, THEREFORE, PRAYED THAT THE ASSESSIN G OFFICER BE DIRECTED TO RECONSIDER THE MATTER IN THE LIGHT OF THE JUDGMENT OF THE HON BLE SUPREME COURT INSTEAD THAT OF THE HONBLE JURISDICTIONAL HIGH COURT. NO OBJECTION WAS TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THIS ISSUE. MA NO.480/MUM/2011 M/S.DIVA EXPORTS PRIVATE LIMITED. 2 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS NOTICED THAT THE QUESTION OF ALLOWING DEDUCTION U/S 80HHC ON DEPB WAS DECIDED BY THE CIT(A) BY RELYING ON THE SPECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORT VS. ITO [(2009) 318 ITR (AT) 87 (MUM. ) (SB). WHEN THE APPEAL OF THE REVENUE CAME UP FOR HEARING BEFORE THE TRIBUNAL , AT THAT TIME THE SPECIAL BENCH ORDER OF THE TRIBUNAL IN TOPMAN EXPORT STOOD REVERSED. THAT IS HOW THE TRIBUNAL RESTORED THE MATTER TO THE AO FOR DECIDING THIS ISSUE IN ACCORDANCE WITH THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT, WHICH WAS BINDING ON THE TRIBUNAL AT THAT TIME. NOW, SINCE THE HONBLE SUPRE ME COURT HAS REVERSED THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT, THEREBY RESTORING THE SPECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORT (SUPRA) , IN OUR CONSIDERED OPINION, THE MATTER IS NOW REQUIRED TO BE DECIDED BY THE ASSESSING OFFI CER IN ACCORDANCE WITH THE LAW OF THE LAND I.E. THE JUDGMENT OF THE HONBLE SUPREM E COURT. AS THE MATTER HAS ALREADY BEEN RESTORED TO THE FILE OF A.O., IT IS DI RECTED THAT HE SHOULD CONSIDER THE JUDGMENT OF THE HONBLE SUPREME COURT INSTEAD OF TH AT OF THE HONBLE JURISDICTIONAL HIGH COURT ON THE POINT. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF MARCH, 2012. SD/- SD/- (D.K.AGARWAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 16 TH MARCH, 2012. DEVDAS* MA NO.480/MUM/2011 M/S.DIVA EXPORTS PRIVATE LIMITED. 3 COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) XVI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.