ASST CIT CIR 33, V. UNICHEM LABORATTRIES LTD,

MA 584/MUM/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8162 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2003-2004
• Appeal Filed On: 08-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: A GOPAL BOHARA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI J.SUDHAKAR REDDY,A.M. AND SHRI V. DURGA RAO, J.M. M.A NO. 584/MUM/2010 (IN ITA NO. 5178/MUM/2006 ASSESSMENT YEAR: 2003-04) ASSTT. COMMISSIONER OF INCOME-TAX, APPLICANT CENTRAL CIRCLE 33, MUMBAI. VS. M/S UNICHEM LABORATORIES LTD., RESPONDENT UNICHEM BHAVAN, SWAMI VIVEKANAND ROAD, PRABHADEVI ESTATE, JOGESHWARY (W), MUMBAI 400 012 (PAN AAACU0551B) APPLICANT BY : MR. C.G.K. NAIR RESPONDENT BY : MR. A. GOPAL BOHARA . ORDER PER V. DURGA RAO, J.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARISES OUT OF THE ORDER OF ITAT K BENCH, MUMBAI BENCHES, MUMBAI, IN APPEAL ITA NOS. 5178/MUM/2006 & 4888/MUM/06, DATED 30 TH APRIL, 2010. THE REVENUE IN THE M.A., INTER-ALIA, S TATED THAT THE TRIBUNAL HAS DECIDED THE CASE OF THE ASSESSEE FOLLO WING THE SPECIAL BENCH ORDER OF THE TRIBUNAL IN THE CASE OF M/S TOPM AN EXPORTS (ITA NO. 5769/MUM/06) AND M/S KALPATARU COLOURS & C HEMICALS (ITA NO. 5651/MUM/06). THEREFORE, IT WAS STATED THA T SINCE THE DECISION RELIED UPON BY THE TRIBUNAL HAS BEEN REVER SED BY THE HONBLE BOMBAY HIGH COURT, THE APPEALS DECIDED IN THE CASES MAY PLEASE BE RECONSIDERED U/S 254(2) OF THE ACT, IN AC CORDANCE WITH THE VIEW EXPRESSED BY THE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS, ITA(L) 29887 OF 2009 DATED 29 TH JUNE, 2010 BEING CONSEQUENTIAL AND BINDING IN NATUR E ALSO THE MISTAKE IN INTERPRETATION OF LAW. M.A. NO. 584/MUM/10 M/S UNICHEM LABORATORIES LTD. 2 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. M/S KALPATARU COLOURS & CHEMICALS (SUPRA), HAS BEEN REVERSED BY THE HONBLE SUPREME COURT IN THE CASE OF M/S TOPMAN EXPORTS VS. CIT, VIDE CIVIL APPEALS NO. 1699 OF 2012 AND OTHERS , JUDGMENT DATED 8 TH FEBRUARY, 2012, UPHOLDING THE FINDINGS THE SPECIAL BENCH DECISION OF THE ITAT, MUMBAI IN THE CASE OF M/S TOP MAN EXPORTS. THE HONBLE SUPREME COURT IN THE SAID CASE HELD AS UNDER:- DEPB HAS DIRECT NEXUS WITH THE COST OF IMPORTS FOR MANUFACTURING AN EXPORT PRODUCT, ANY AMOUNT REALIZE D BY THE ASSESSEES OVER AND ABOVE THE DEPB ON TRANSFER OF TH E DEPB WOULD REPRESENT PROFIT ON THE TRANSFER OF DEPB AND WHILE THE FACE VALUE OF THE DEPB WILL FALL UNDER CLAUSE (IIIB ) OF SECTION 28, DIFFERENCE BETWEEN THE SALE VALUE AND THE FACE VALUE OF THE DEPB WILL FALL UNDER CLAUSE (IIID) OF SECTION 28. 3. IN VIEW OF THE ABOVE, WE HOLD THAT THERE IS NO M ISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL IN FOLLOWING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN THE CASE OF M/S TOP EXPORTS (SUPRA) WHILE DECIDING THE APPEAL. THEREFOR E, THE M.A. FILED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, MA FILED BY THE REVENUE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL, 2012 SD/- SD/- (J.SUDHAKAR REDDY) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 17 TH APRIL, 2012 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, K BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.