M/s Abhishek Industries Ltd., Ludhiana V. JCIT, Ludhiana

MA 57/CHANDI/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7969 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 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 NO. 57/CHD/2012 (IN ITA NO. 321/CHD/2009) ASSESSMENT YEAR: 2004-05 M/S ABHISHEK INDUSTRIES LTD., VS THE JCIT, RANGE-1 , LUDHIANA LUDHIANA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 25.5.2012 DATE OF PRONOUNCEMENT : 28.5.2012 ORDER PER H.L.KARWA, VP THIS MISC. APPLICATION PREFERRED BY THE ASSESSEE AR ISES OUT OF THE ORDER OF THE TRIBUNAL DATED 27.09.2011 PASSED IN ITA NO. 321/CHD/2009 RELATING TO ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE VIDE ITS APPLICATION DATED 18.4.201 2 HAS STATED AS UNDER:- BEFORE THE HON'BLE BENCH INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH 'A' CHANDIGARH SUB : MISCELLANEOUS APPLICATION U/S 254(2) OF THE I NCOME TAX ACT, 1961 IN THE CASE OF M/S ABHISHEK INDUSTRIES LTD. (NOW TRIDENT L IMITED), LUDHIANA VS JOINT COMMISSIONER OF INCOME TAX, RANGE-L, LUDHI ANA ARISING OUT OF ITA NO. 321/CHD/2009 A/Y 2004-05 SIR, 2 RESPECTFULLY THE FOLLOWING IS SUBMITTED FOR KIND CO NSIDERATION AND NECESSARY ADJUDICATION BY THE HON'BLE BENCH. THAT THE ITA NO. 321/CHD/2009 IN THE CASE OF M/S AB HISHEK INDUSTRIES LTD., LUDHIANA FOR A/Y 2004-05 WAS ADJUDICATED UPON BY THE HON'BLE 'A' BENCH VIDE ORDER DATED 27.09.2011. THAT WHILE DECIDING THE APPEAL, GROUND NO. 3(D) WHI CH READ AS UNDER:- 'DISALLOWING DEDUCTION U/S 80HHC IN RESPECT OF WHOL E AMOUNT OF DEPB ENTITLEMENT AMOUNTING TO RS. 19,45,46,911/- BY NOT CONSIDERING IT AS AN EXPORT BENEFIT' WAS ADJUDICATED VIDE PARAS 27 & 28 AT PAGES 14 TO 1 7 OF THE IMPUGNED ORDER. THAT VIDE PARA 28 OF THE ORDER, IT WAS OBSERVED AS UNDER:- 'SINCE THE ISSUE IS SQUARELY COVERED BY THE DECISIO N OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V KALAPATARU COLOURS AND CHEMICALS (SUPRA), THEREFORE RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT DEDUCTION IN RESPECT OF 90% OF DEPB AND DFRS BENEFITS ARE NOT ALLOWABLE U/S 80HHC OF THE ACT. WE, THEREFORE, DISMISS GROUND NO. 3(D) OF THE APPEAL.' THAT THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS KALAPATRU COLOURS AND CHEMICALS HAS OVER RULED B Y THEIR LORDSHIPS OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS CIT REPORTED IN 67 DTR PAGE 185. THAT AS THE ISSUE WITH RESPECT TO THE CLAIM OF DEDU CTION U/S 80 HHC ON THE RECEIPTS OF DEPB ENTITLEMENT STANDS FINALLY SET TLED BY THE JUDGMENT OF THEIR LORDSHIPS OF HON'BLE SUPREME COURT IN THE CASE REFE RRED TO SUPRA, THE ORDER PASSED BY THE HON'BLE BENCH DESERVES TO BE RECTIFIE D AS THE MISTAKE IS APPARENT FROM RECORD. IT IS, THUS SUBMITTED THAT THE MISTAKE IN ADJUDICAT ING GROUND NO. 3(D) OF THE APPEAL FILED BY THE APPELLANT DESERVES TO BE RECTIF IED AND IN THE CIRCUMSTANCES IT IS PRAYED THAT THE MISCELLANEOUS APPLICATION BEING FIL ED, BE KINDLY ADJUDICATED ACCORDINGLY. THANKING YOU, SUBMITTED BY 3 SD/- FOR TRIDENT LIMITED (FORMERLY ABHISHEK INDUSTRIES LTD) DATED 18.04.2012 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. THE GROUND NO. 3(D) RAISED BY THE ASSESSEE IN ITA NO. 321/CHD/2009) READS AS UNDER:- THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACT ION OF ASSESSING OFFICER IN DISALLOWING DEDUCTION U/S 80HH C IN RESPECT OF THE AMOUNT OF DEPB ENTITLEMENT AMOUNTING TO RS. 19,45,46,911/- BY NOT CONSIDERING IT AS AN EXPORT B ENEFIT . 4. THE TRIBUNAL VIDE ITS ORDER DATED 27.9.2011 DECI DED THE ABOVE ISSUE AGAINST THE ASSESSEE FOLLOWING THE JUDGMENT OF HON' BLE BOMBAY HIGH COURT IN THE CASE OF CIT V KALAPATARU COLOURS AND CHEMICA LS (2010) 328 ITR 451 (BOM.). IT IS OBSERVED THAT THE HON'BLE SUPREME CO URT IN THE CASE OF M/S 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 AND OTHER CONNECTED APPEALS. SHRI A SHWANI KUMAR, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE I N RESPECT TO THE CLAIM OF DEDUCTION U/S 80HHC OF THE RECEIPT OF DEPB ENTITLEM ENT STANDS FINALLY SETTLED BY HON'BLE SUPREME COURT IN THE CASE OF M/S TOPMAN EXPORTS (SUPRA), THEREFORE, THE ORDER PASSED BY THE TRIBUNAL DESERVE S TO BE RECTIFIED AS THE MISTAKE IS APPARENT FROM RECORD. TAKING INTO CONSI DERATION THE ENTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS WELL AS TH E SETTLED LEGAL POSITION, WE ARE OF THE VIEW, THAT THE ORDER OF THE TRIBUNAL DE SERVES TO BE RECTIFIED AS THE MISTAKE IS APPARENT FROM RECORD. ACCORDINGLY, WE RE CTIFY OUR ORDER DATED 4 27.9.2011 WITH RESPECT TO GROUND NO. 3(D) PASSED I N ITA NO.321/CHD/2009 RELATING TO ASSESSMENT YEAR 2004-05 HOLDING THAT TH E ISSUE RAISED BY THE ASSESSEE 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 ASS ESSING OFFICER WITH A DIRECTION TO RECOMPUTE THE DEDUCTION U/S 80HHC OF T HE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'), IN ACCORDANCE WITH LAW AND IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXP ORTS (SUPRA). THE ASSESSING OFFICER IS ALSO DIRECTED TO GIVE AN OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. FOR STATISTICAL PURPOSES, THE GROUND NO.3 (D) OF THE APPEAL IN ITA NO. 321/CHD/2009 IS ALLOWED. THE ORD ER OF THE TRIBUNAL DATED 27.9.2011 IS RECTIFIED TO THE ABOVE EXTENT. 5. IN THE ABOVE TERMS, THE MISC. PETITION PREFERRED BY THE ASSESSEE STANDS DISPOSED OFF. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MAY, 2012 SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 28 TH MAY, 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 5