ASST CIT RG 14(3), V. KEWIN EXPORTS,

MA 629/MUM/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8160 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2004-2005
• Appeal Filed On: 26-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: DEVENDRA J SHIRMANKER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. M.A NO. 629/MUM/2010 (IN ITA NO. 6222/MUM/2007 ASSESSMENT YEAR: 2004-05) ASSTT. COMMISSIONER OF INCOME-TAX, APPLICANT 14(3)(4), MUMBAI 21. VS. M/S KEVIN EXPORTS, RESPONDENT 10, DEVKARAN MANSION, 2 ND FLOOR, PRINCESS STREET, MUMBAI 400 002. (PAN AAFK3788M APPLICANT BY : MR. C.G.K. NAIR RESPONDENT BY : MR. DEVENDRA J. SHIRMANKER . 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 NO. 6222/MUM/2007, DATED 30 TH OCTOBER, 2009. THE REVENUE IN THE M.A., INTER-ALIA, STATED THAT THE TR IBUNAL HAS DECIDED THE CASE OF THE ASSESSEE FOLLOWING THE SPEC IAL BENCH ORDER OF THE TRIBUNAL IN THE CASE OF M/S TOPMAN EXPORTS ( ITA NO. 5769/MUM/06 AND M/S KALPATARU COLOURS & CHEMICALS ( ITA NO. 5651/MUM/06. THEREFORE, IT WAS STATED THAT SINCE TH E DECISION RELIED UPON BY THE TRIBUNAL HAS BEEN REVERSED BY TH E HONBLE BOMBAY HIGH COURT, THE APPEAL DECIDED IN THE CASE MAY PLEASE BE RECONSIDERED U/S 254(2) OF THE ACT, IN ACCORDANCE W ITH THE VIEW EXPRESSED BY THE BOMBAY HIGH COURT IN THE CASE OF K ALPATARU COLOURS & CHEMICALS, ITA(L) 29887 OF 2009 DATED 29 TH JUNE, 2010 BEING CONSEQUENTIAL AND BINDING IN NATURE ALSO THE MISTAKE IN INTERPRETATION OF LAW. M.A. NO. 629/MUM/10 M/S KEVIN EXPORTS 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. 4. IN THE RESULT, MA FILED BY THE REVENUE IS DISMIS SED. PRONOUNCED IN THE OPEN COURT ON SD/- (R.S. SYAL) (V. DURGA R AO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: APRIL, 2012 KV ORDER PRONOUNCED ON THIS 17 TH DAY OF APRIL, 2012. SD/- SD/- (R.S. SYAL) (AMIT SHUKL A) ACCOUNTANT MEMBER JUDI CIAL MEMBER (NOMINATED) MUMBAI, DATED 17 TH APRIL, 2012. M.A. NO. 629/MUM/10 M/S KEVIN EXPORTS 3 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. KV