DCIT, New Delhi V. Purolator India Ltd., New Delhi

MA 546/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6915 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE SHRI I. P. BANSAL, JM & SHRI K. D. RANJAN, AM MISC. APP. NO. 546 (DEL) OF 2010. [ IN I. T. APPEAL NO. 5685 (DEL) OF 2004 ]. ASSESSMENT YEARS : 2001-02 & 2002-03. DY. COMMISSIONER OF INCOME-TAX, M/S. PUROLA TER INDIA LTD. [NOW KNOWN AS C I R C L E : 6 (1), VS. MAHLE FILTER SYSTEM INDIA LIMITED] N E W D E L H I. 1 SRI AUROBINDO MARG, N E W D E L H I 110 016. P A N / G I R NO. AAA CP 5890 Q. ( APPLICANT ) ( R ESPONDENT ) ASSESSEE BY : SHRI NEERAJ JAIN, C. A. ; & SHRI ROHIT GARG, C. A.; DEPARTMENT BY : SHRI A. K. MONGA, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THIS MISC. APPLICATION BY THE REVENUE HAS BEEN FIL ED AGAINST THE TRIBUNALS CONSOLIDATED ORDER DATED 18TH FEBRUARY, 2010 PERTAINING TO THE A SSESSMENT YEARS 2001-02 AND 2002-03 IN ITA. NO. 5685 (DEL) OF 2004 AND ITA. NO. 1927 (DEL) OF 2 006. THE REVENUE HAS FILED MISC. APPLICATION ON THE GROUND THAT THE DECISION RELIED UPON BY THE ITAT IN THE CASE OF TOPMAN EXPORTS IN ITA. NO. 5769 (MUM.) OF 2006 (SPECIAL BE NCH) FOR ASSESSMENT OF DEPB RECEIPTS HAS BEEN OVER-RULED BY HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS IN ITA. NO. 2887 OF 2009. AT THE OUTSET , WHEN THE CASE CAME UP FOR HEARING, THE LD. AR OF THE ASSESSEE FILED COPY OF DECISION OF HONBL E DELHI HIGH COURT IN THE CASE OF THE ASSESSEE DATED 22/03/2011 WHEREIN ORDER OF THE ITAT FOR ASSE SSMENT YEAR 2001-02 HAS BEEN SET ASIDE TO 2 MISC. APP. NO. 546 (DEL) OF 2010. THE FILE OF THE TRIBUNAL. THEREFORE, THE MISC. APP LICATION FILED BY THE REVENUE BECOMES INFRUCTUOUS FOR THIS ASSESSMENT YEAR. 2.1 WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF HONBLE DELHI HIGH COURT IN THE ASSESS EES CASE, THE ASSESSMENT YEAR TO WHICH THE DECISION DATED 22/03/2011 PERTAINS IS NOT CLEAR. H OWEVER, THE LD. AR OF THE ASSESSEE FILED THE MEMO OF APPEAL FILED BEFORE THE HONBLE DELHI HIGH COURT IN SUPPORT OF THE CONTENTION THAT THE AFORESAID DECISION PERTAINS TO ASSESSMENT YEAR 2001 -02. WE FIND THAT THE HONBLE DELHI HIGH COURT VIDE THEIR ORDER DATED 22/3/2011 HAS HELD THA T THE ITAT HAD PASSED ORDER BY SIMPLY FOLLOWING THE DECISION OF ITAT, SPECIAL BENCH, MUMB AI IN THE CASE OF TOPMAN EXPORTS (SUPRA) WHEREIN IT HAS BEEN HELD THAT THE FACE VALUE OF DEP B WAS CHARGEABLE TO TAX UNDER SECTION 28(IIIB) AT THE TIME OF ACCRUAL OF INCOME I.E. WHEN APPLICAT ION FOR DEPB IS FILED WITH THE COMPETENT AUTHORITY PURSUANT TO EXPORTS AND PROFIT ON SALE OF DEPB REPRESENTING THE EXCESS OF SALE PROCEEDS OVER ITS FACE VALUE IS LIABLE TO BE CONSIDERED UNDE R SECTION 28(IIID) AT THE TIME OF ITS SALE. THE DECISION OF SPECIAL BENCH HAS BEEN REVERSED BY HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS 328 ITR 451 (BOM) . 2.2 HONBLE DELHI HIGH COURT IN VIEW OF ABOVE FACTS HAD SET ASIDE THE MATTER TO THE FILE OF THE TRIBUNAL TO DECIDE THE APPEAL ON MERITS, AFTER TAKI NG INTO ACCOUNT FACTUAL POSITION OF THE CASE. IN VIEW OF DECISION OF HONBLE DELHI HIGH COURT, THE M ISC. APPLICATION FILED BY THE REVENUE HAS BECOME INFRUCTUOUS AND, THEREFORE, DISMISSED AS SUC H. 3. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 26 TH AUGUST, 2011. SD/- SD/- [ I. P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH AUGUST, 2011 . *MEHTA * 3 MISC. APP. NO. 546 (DEL) OF 2010. COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. SR. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.