M/s R.N. Gupta & Co. Ltd, Ludhiana V. ACIT, Ludhiana

MA 50/CHANDI/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8608 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-06-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Opportunity of being heard
• Section: 143(3); 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER MA NOS. 48 TO 50/CHD/2012 (IN ITA NOS. 926 TO 928/CHD/2011) ASSESSMENT YEARS: 2001-02, 2003-04 & 2004-05 M/S R.N. GUPTA & COMPANY LTD., VS THE ACIT, CIRCLE -1, LUDHIANA LUDHIANA PAN NO. AABCR 9636 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH AGGARWAL RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 22.06.2012 DATE OF PRONOUNCEMENT : 22.06.2012 ORDER PER H.L.KARWA, VP THESE THREE MISC. APPLICATIONS PREFERRED BY THE ASS ESSEE ARISE OUT OF THE ORDER OF THE TRIBUNAL DATED 21.11.2011 PASSED I N ITA NOS. 926/CHD/2011 TO 928/CHD/2011 RELATING TO ASSESSMENT YEARS 2001-0 2, 2003-04 AND 2004-05. 2. THE ASSESSEE HAS FILED THREE SEPARATE MISC. APPL ICATIONS ALL DATED 29.2.2012 U/S 254 OF THE INCOME TAX ACT, 1961. THE CONTENTS OF THE MISC. APPLICATIONS ARE SIMILAR, WHICH READ AS UNDER:- 2 APPLICATION UNDER SECTION 254 OF THE INCOME TAX AC T 1961. SIR THE AFORESAID APPEAL WAS DECIDED BY THE HON'BLE BEN CH BY A CONSOLIDATED ORDER DATED 21.11.2011 IN ITA NO. 92 6 TO 928/2011 FOR THE ASSESSMENT YEARS 2001-02, 2003-04 & 2004-05. THE ISSUE INVOLVED IN THE APPEALS RELATED TO DEDUCTION UNDER SECTION 80HHC ON THE VALUE OF DEPB. THE HON'BLE TRIBUNAL VIDE A CONSOLIDATED ORDER DATED 31 .08.2009 IN ASSESSEE'S APPEAL BEARING ITA NO. 124/CHANDI/200 9 FOR THE ASSESSMENT YEAR 2001-02 REMANDED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AF RESH IN CONFORMITY WITH THE DECISION OF THE SPECIAL BENCH I N THE CASE OF M/S TOPMAN EXPORTS MUMBAI VS. INCOME TAX OFFICER REPORTED IN (2009) 125 TTJ 289 (MUM)(SB). THE ASSES SING OFFICER PASSED AN ORDER U/S 143(3) RWS 254 OF THE I NCOME TAX ACT ON 14.12.2010 AND DECIDED THE ISSUE ON THE BASIS OF JUDGMENT OF THE MUMBAI HIGH COURT IN THE CASE OF CI T VS. KALAPATRU COLOURS AND CHEMICALS MUMBAI DATED JUNE 2 8/29, 2010 (NOW REPORTED IN (2010) 328 ITR 451 (BOM)) AND OTHER JUDGMENTS OF HON'BLE PUNJAB AND HARYANA HIGH COURT AS ACCORDING TO HIM THE JUDGMENT OF THE SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS STOOD REVERSED BY THE HON'BL E MUMBAI HIGH COURT AND FOLLOWED BY THE HON'BLE PUNJA B & HARYANA HIGH COURT AND REJECTED THE CONTENTION OF T HE APPELLANT. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A), WH O CONFIRMED THE ORDER OF THE AO AGAINST WHICH THE ASS ESSEE FILED AN APPEAL BEFORE THE HON'BLE TRIBUNAL, WHICH WAS DISPOSED OFF VIDE ORDER DATED 21.11.2011 CONFIRMIN G THE ORDER OF THE CIT (A) DECIDING THE ISSUE ON THE BASI S OF JUDGMENT OF MUMBAI HIGH COURT IN THE CASE OF KALAPA TRU COLOURS AND CHEMICAL, MUMBAI. THAT NOW THE JUDGMENT OF THE MUMBAI HIGH COURT HAS BEEN REVERSED BY THE HON'BLE SC VIDE ORDER DATED 08.02.2 012 IN THE CASE OF TOPMAN EXPORTS VS. CIT SINCE REPORTED I N (2012) 67 DTR 185 (SC). THUS A MISTAKE HAS OCCURRED IN THE ORDER OF THE HON'BLE BENCH PASSED ON 21.11.2011 REJECTIN G THE ASSESSEES APPEAL. THE SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT CONSTITUTES A MISTAKE APPARENT FROM R ECORD AND THE SAME IS LIABLE TO BE RECTIFIED AS PER AS PE R THE DECISION OF THE HON'BLE SUPREME COURT. 3 THE APPELLANT, THUS, HUMBLY PRAYS THAT THE ORDER DA TED 21.11.2011 MAY BE RECTIFIED AND THE AO BE DIRECTED TO DECIDE THE ISSUE ON THE BASIS OF JUDGMENT OF THE HON'BLE S UPREME COURT. HENCE THE MISCELLANEOUS PETITION YOURS FAITHFULLY FOR R N GUPTA & COMPANY LIMITED SD/- MANAGING DIRECTOR THROUGH SD/- SUBHASH AGGARWAL 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. THE COMMON GROUNDS NO. 1 & 2 OF APPEALS PREFERRED BY THE ASSESSEE BEFORE THE TRIBUNAL IN IT A NOS. 926 TO 928/CHD/2011 WERE AS UNDER:- 1. THAT THE LD. CIT(A)-I HAS ERRED IN NOT FOLLOWING THE DIRECTION OF THE HON'BLE TRIBUNAL AND THUS EXCEEDED HIS JURISDICTION IN REJECTING THE CLAIM OF THE APPELLAN T IN RESPECT OF DEDUCTION UNDER SECTION 80HHC ON THE VAL UE OF DEPB. 2. THAT THE LD. CIT(A)-I HAS ERRED IN FOLLOWING THE JUDGMENT OF THE HON'BLE MUMBAI HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS IGNORING THE SPECIF IC DIRECTIONS OF THE HON'BLE TRIBUNAL FOR DECIDING THE ISSUE ON THE BASIS OF SPECIAL BENCH JUDGMENT IN THE CASE OF M/S TOPMAN EXPORTS V ITO. 4. THE TRIBUNAL VIDE ITS ORDER DATED 21.11.2011 DEC IDED THE ABOVE GROUNDS AGAINST THE ASSESSEE FOLLOWING THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V KALAPATARU COLOURS AND C HEMICALS (2010) 328 ITR 451 (BOM.). IT IS OBSERVED THAT THE HON'BLE SUPREM E COURT IN THE CASE OF M/S 4 TOPMAN EXPORTS V CIT, MUMBAI REPORTED IN (2012) 67 DTR (SC) 185 HAS SET ASIDE THE JUDGMENT AND ORDERS OF HON'BLE BOMBAY HIG H COURT IN THE CASE OF CIT VS KALAPATARU COLOURS AND CHEMICALS (2010) 328 ITR 451(BOM.), M/S TOPMAN EXPORTS & OTHER CONNECTED APPEALS AND THE MA TTER HAS BEEN REMANDED TO ASSESSING OFFICER WITH CERTAIN DIRECTIONS AND GU IDELINES. SHRI SUBHASH AGGARWAL, LD. COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE ISSUE IN RESPECT TO THE CLAIM OF DEDUCTION U/S 80HHC OF THE RECEIPT OF DEPB ENTITLEMENT STANDS FINALLY SETTLED BY HON'BLE SUPREME COURT IN THE CAS E OF M/S TOPMAN EXPORTS (SUPRA), THEREFORE, THE ORDER PASSED BY THE TRIBUNA L DESERVES TO BE RECTIFIED AS THE MISTAKE IS APPARENT FROM RECORD. TAKING INTO C ONSIDERATION THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS WELL AS THE SETTLED LEGAL POSITION, WE ARE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL DESERVES TO BE RECTIFIED AS THE MISTAKE IS APPARENT FROM RECORD. ACCORDINGLY, WE RECTIFY OUR ORDER DATED 21.11.2011 WITH RESPECT TO COMMON GROU NDS NO. 1 & 2 PASSED IN ITA NOS. 926 TO 928/CHD/2011 RELATING TO ASSESSMENT YEARS 2001-02, 2003-04 AND 2004-05 HOLDING THAT THE ISSUE RAISED BY THE AS SESSEE IS SQUARELY COVERED BY THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS CIT, MUMBAI REPORTED IN (2012) 67 DTR ( SC) 185, AND HENCE WE REMAND THE ISSUE TO ASSESSING OFFICER WITH A DIR ECTION TO RECOMPUTE THE DEDUCTION U/S 80HHC OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'), IN ACCORDANCE WITH LAW AND IN THE LIGHT OF THE JUDGMEN T OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). THE A SSESSING OFFICER IS ALSO DIRECTED TO GIVE AN OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE IN THE MATTER. FOR STATISTICAL PURPOSES, THE COMMON GROUNDS NO. 1 & 2 OF THE APPEALS BEARING ITA NOS. 926 TO 928/CHD/2011 ARE ALLOWED. THE ORDER OF THE TRIBUNAL DATED 21.11.2011 IS RECTIFIED TO THE ABOVE EXTENT. 5 5. IN THE ABOVE TERMS, THE MISC. APPLICATIONS PREFE RRED BY THE ASSESSEE STAND DISPOSED OFF. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JUNE, 2012 SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 22 ND JUNE, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR