Jay Chemical Industies Ltd., Ahmedabad V. The Dy.CIT., Circle-4, Ahmedabad

MA 50/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8862 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 09-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VOHRA
• Assessee Lawyers: NIMISH VASVANI
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.50/AHD/2012 IN I.T.A. NO. 4237/ AHD/2007 (ASSESSMENT YEAR 2004-05) JAY CHEMICALS INDUSTRIES LTD., JAY HOUSE, PANCHVAWATI, AMBAWADI, AHMEDABAD VS. DCIT, CIRCLE 4, AHMEDABAD PAN/GIR NO. : AAACJ7628J (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI NIMISH VASVANI, AR RESPONDENT BY: SHRI R K VOHRA, SR. DR DATE OF HEARING: 06.07.2012 DATE OF PRONOUNCEMENT: 31.08. 2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT SOME MISTAKE IN THE TRIBUNAL ORDER DATED 31.05.2011 . 2. THE MISTAKE POINTED OUT BY THE ASSESSEE IN THE T RIBUNAL ORDER IS THIS THAT GROUND NO.1 OF THE REVENUES APPEAL FOR THE AS SESSMENT YEAR 2004-05 WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE BY FOLLOWING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN T HE CASE OF CIT VS KALPATARU COLOUR & CHEMICALS LTD VS CIT AS REPORTED IN 328 ITR 451 (MUM.) IT IS FURTHER SUBMITTED THAT THIS DECISION OF HONBLE BOMBAY HIGH COURT HAS BEEN REVERSED BY THE HONBLE APEX CO URT IN THE M.A.NO.50 /AHD/2012 2 JUDGEMENT RENDERED IN THE CASE OF TOPMAN EXPORTS AS REPORTED IN 342 ITR 49. IT IS FURTHER SUBMITTED THAT AS PER THE J UDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE AS REPORTED IN 305 ITR 227 (S.C.) AND AS PER THE JUDGE MENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF CIT VS BINDAL INDUSTRIES LTD. AS REPORTED IN 328 ITR 160 (ALLD.) IF THE TRIB UNAL DECISION IS NOT IN LINE WITH A SUBSEQUENT DECISION OF HONBLE APEX COU RT OR HONBLE JURISDICTIONAL HIGH COURT THEN THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED U/S 254(2) TO BRING THE TRIBUNAL ORDER IN LINE WITH SUCH SUBSEQUENT DECISION OF HONBLE APEX COURT/JURISDICTIONAL HIGH COURT. IN THE COURSE OF ARGUMENTS BEFORE US, LD. A.R. REITERATED THE SAME ARGUMENTS WHICH HAVE BEEN GIVEN IN THE MISCELL ANEOUS APPLICATION. AS AGAINST THIS, LD. D.R. SUBMITTED THAT THERE IS N O APPARENT MISTAKE IN THE TRIBUNAL ORDER BUT COULD NOT POINT OUT ANY DEFE CT IN THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICA TION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND WE FIND THAT THE ISSUE REGARDING ALLOWAB ILITY OF DEDUCTION U/S 80HHC IN RESPECTS OF DEPB ENTITLEMENT WAS DECIDED B Y THE TRIBUNAL AS PER THE IMPUGNED ORDER, AGAINST THE ASSESSEE BY FOL LOWING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE O F CIT VS KALPATARU COLOUR & CHEMICALS LTD. (SUPRA). SUBSEQUENT TO THI S JUDGEMENT OF HONBLE BOMBAY HIGH COURT, THERE IS JUDGEMENT OF HO NBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS AS PER WHICH , IT WAS HELD BY THE HONBLE APEX COURT THAT ONLY THE PROFIT ON SALE OF DEPB IS TO BE EXCLUDED FROM BUSINESS PROFIT FOR THE PURPOSE OF CO MPUTATION OF DEDUCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC AND F OR THE PURPOSE OF THIS COMPUTATION OF PROFIT ON SALE OF DEPB, FACE VA LUE OF DEPB SHOULD M.A.NO.50 /AHD/2012 3 BE CONSIDERED AS COSTS OF DEPB. WE ALSO FIND THAT AS PER THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF SAURASHTSRA KUTCH STOCK EXCHANGE (SUPRA) IN WHICH THE HONBLE APEX COURT HAS REFERRE D TO THE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT ALSO RENDERED IN THE CASE OF SUHRID GEIGY LTD. VS COMMISSIONER OF SALES TAX AS REPORTED IN 237 ITR 834 WHEREIN, IT WAS HELD THAT IF THE POINT IS COVERED B Y A DECISION OF JURISDICTIONAL HIGH COURT RENDERED PRIOR OR EVEN SU BSEQUENT TO THE ORDER OF RECTIFICATION, IT CAN BE SAID TO BE A MISTAKE AP PARENT FROM THE RECORD U/S 254(2) OF THE INCOME TAX ACT, 1961 AND COULD BE COR RECTED BY THE TRIBUNAL. AS PER THIS JUDGEMENT OF HONBLE JURISDI CTIONAL HIGH COURT, IN THE PRESENT CASE ALSO, THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE THE IMPUGNED TRIBUNAL ORDER IS NOT IN LINE WITH THE SUBSEQUENT JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA). 4. RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SUHRID GIEGY LTD. (SU PRA) AND ALSO THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CAS E OF SAURASHTRA KUTCH STOCK EXCHANGE (SUPRA), WE HOLD THAT THERE IS APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER AS THE CLAIM OF THE ASS ESSEE REGARDING DEDUCTION U/S 80HHC IN RESPECT OF DEPB ENTITLEMENT/ DEPB INCOME WAS DECIDED AGAINST THE ASSESSEE FOR THE WHOLE AMOUNT B UT AS PER THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA), ONLY PROFIT ON SALE OF DEPB SHOULD BE CONS IDERED FOR THE PURPOSE OF EXCLUSION FORM BUSINESS PROFIT FOR COMPUTING DED UCTION ALLOWABLE TO THE ASSESSEE U/S 80HHC AND FOR THE COMPUTATION OF P ROFIT ON SALE OF DEPB, FACE VALUE OF DEPB IS TO BE CONSIDERED AS COS TS OF DEPB. WE, THEREFORE, RECTIFY THIS APPARENT MISTAKE IN THE IMP UGNED TRIBUNAL ORDER AND M.A.NO.50 /AHD/2012 4 HOLD THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AS PER THIS JUDGEMENT OF HONBLE APEX COUR T RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA). 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 28/08/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31/12/2012 .OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 31/08/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.31/8/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31/08/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .