ASST CIT RG 14(3), V. ANUPKUMAR GALANI,

MA 628/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6454 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2003-2004
• Appeal Filed On: 26-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Section: 80HHC

Judgement Text

1 MA 628/M/2010 SHRI ANUPKUMAR R. GOLANI. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I BEFORE SHRI R.S. SYAL A.M AND SHRI D.K. AGARWAL, J. M. MISC. APPLICATION NO. 628/MUM/2010 ARISING OUT OF ITA NO. 1945/MUM/2007 ASSESSMENT YEAR 2003-04 ASSTT. COMMISSIONER OF INCOME TAX, RG, 14(3), MUMBAI. VS. SHRI ANUPKUMAR R. GOLANI, SHOP NO. 102, IST FLOOR, PAWAN COMPLEX, STATION ROAD, ULHASNAGAR 421 003. PAN AAAPG9038J APPLICANT RESPONDENT APPLICANT BY MS. V ANDANA SAGAR RESPONDENT BY NONE ORDER PER D.K. AGARWAL, J.M. THIS MISC. APPLICATION FILED BY THE REVENUE IS DIRE CTED AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 1945/M/2007 FOR T HE A.Y. 2003-04 DATED 9 TH OCTOBER, 2009. 2. THE REVENUE IN THE PRESENT MISC. APPLICATION HAS RAISED THAT THE ITAT DIRECTED THAT ISSUE OF DEDUCTION IN RESPECT OF DEPB TO DECIDE AFRESH IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF M/S TOPMAN EXPORTS VS. ITO IN ITA NO. 5769/MUM/2006 (2009) 318 ITR 87 (AT). S INCE THE SAID SPECIAL BENCH DECISION WAS NOT APPROVED BY THE HONBLE BOMB AY HIGH COURT BY THE JUDGMENT DELIVERED ON 29 TH JUNE, 2010 IN THE CASE OF CIT V. KALPATARU COLOURS AND CHEMICALS (2010) 328 ITR 451, THE REVENUE SEEKS MODIFICATION OF THE DIRECTION GIVEN IN PARA 3 OF THE ORDER OF THE TRIBU NAL. 2 MA 628/M/2010 SHRI ANUPKUMAR R. GOLANI. 3. AT THE TIME OF HEARING, NONE ATTENDED ON BEHALF OF THE RESPONDENT- ASSESSEE NOR FILED ANY APPLICATION FOR ADJOURNMENT OF THE CASE DESPITE THE FACT THAT DATE OF HEARING WAS INFORMED THROUGH NOTICE BO ARD. IT WAS, THEREFORE, DECIDED TO DISPOSE OF THE MISC. APPLICATION EX PART E QUA THE RESPONDENT ON MERITS AFTER HEARING THE LD. D.R. WHO SUPPORTS THE MISC. APPLICATION FILED BY THE REVENUE. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS BRIEFL Y STATED, THE ISSUE OF ALLOWANCE OF DEDUCTION U/S 80HHC ON DEPB RECEIVABLE S WAS RESTORED BACK TO THE A.O. TO CONSIDER THE SAME IN THE LIGHT OF THE D ECISION OF THE SPECIAL BENCH (SUPRA) AFRESH. HOWEVER, THE SAID DECISION OF THE SPECIAL BENCH HAS SINCE BEEN OVERRULED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS (SUPRA) WHICH IS BINDING. IN THIS VIEW OF THE MATTER, THERE IS NO OTHER OPTION THAN TO MODIFY THE ORDER O F THE TRIBUNAL IN CONFORMITY WITH THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH CO URT. PARA 3 OF THE ORDER OF THE TRIBUNAL DTD.9.10.2009 (SUPRA) STANDS MODIFIED AS UNDER:- PARA 3: THIS ISSUE HAS TO BE DECIDED IN THE LIGHT OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KA LPATARU COLOURS AND CHEMICALS (SUPRA) OR ANY OTHER DECISION OF THE SUPE RIOR COURT ON THIS ISSUE. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FI LE OF THE A.O. TO DECIDE THE SAME AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE MISC. APPLICATION FIELD BY TH E REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.4.2011 SD/- SD/- (R.S. SYAL) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 20 TH APRIL, 2011. RK 3 MA 628/M/2010 SHRI ANUPKUMAR R. GOLANI. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -CONCERNED, MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, I 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 MA 628/M/2010 SHRI ANUPKUMAR R. GOLANI. 00 DATE INITIALS 1 DRAFT DICTATED ON 15.4.2011 SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 15.4.2011 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER