ASST CIT 12(1), V. AMRUTLAL C. SHAH,

MA 640/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5385 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2004-2005
• Appeal Filed On: 28-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: H N MOTIWALA
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI R.K. PANDA (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) M.A. NO. 640/MUM/2010 (ARISING OUT OF ITA NO. 7710/MUM/2007) ASSESSMENT YEAR- 2004-05 THE ACIT 12(1), AAYAKAR BHAVAN, MUMBAI-400 020 VS. SHRI AMRUTLAL C. SHAH, C/O H.N. MOTIWALA & CO., 508, SHARDA CHAMBERS, 33, NEW MARINE LINES, MUMBAI-400 020 PAN-AADPS 2103D (APPELLANT) (RESPONDENT) APPL IC ANT BY: SHRI ABANI KANTA NAYAK RESPONDENT BY: SHRI H.N. MOTIWALA O R D E R PER ASHA VIJAYARAGHAVAN (JM) BY THIS MISCELLANEOUS APPLICATION, THE DEPARTMENT H AS POINTED OUT AN ERROR APPARENT ON RECORD ON THE FOLLOWING LINES: WHILE ADJUDICATING THE APPEAL FILED BY THE ASSESSE E FOR THE A.Y. 2004-05, THE HONBLE ITAT ON ITS GROUND NO. 4 IN PARA NO. 24 OF ITAT ORDER NO. 7710/M/07 DT. 25.6.2010 DIRECT THE AO TO REWORK THE RELIEF U/S. 80HHC ON ACCOUNT OF DEPB IN THE LIGHT OF DECISION OF THE SPL. BENCH IN THE CASE OF TOPMAN EXPORT VS ITO IN ITA NO. 5769/M/06. HONBLE HIGH COURT VIDE ORDER DT. 29.9.2010 IN THE CASE OF CIT VS KALPATARU COLORS AND CHEMICALS IN ITA (L) NO. 28 87/2009 HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE AND THE VIEW OF THE TRIBUNAL IN THE CASE OF TOPMAN HAS BEEN DISAPPR OVED. HENCE THE QUESTION IS NOT AN OPEN QUESTION IN THE S ENSE THAT IT IS FINALLY SETTLED BY CONCERN HIGH COURT. FURTHER THE HONBLE MADHYA PRADESH HIGH COURT HAS H ELD IN THE CASE OF NARMAN PVT. LTD. VS CIT 42 TAXMAN 39 (H P) THAT M.A. NO. 640/M/2010 2 A MISTAKE DISCOVERED IN AN ORDER ON THE BASIS OF A SUBSEQUENT JUDGMENT OF THE HIGH COURT CAN BE A MISTAKE APPAREN T FROM RECORD AND GROUND FOR RECTIFICATION. THE HONBLE M ADHYA PRADESH HIGH COURT HAS RELIED UPON THE DECISION OF SUPREME COURT THE CASE OF STATE OF ORISSA VS SUDHANSU S. MI SRA IAR 1968 SC 647. IN VIEW OF THE ABOVE IT IN MOST HUMBLY PRAYED THAT THE HONBLE TRIBUNAL IN THE ITAT ORDER IN ITA NO. 7710/M/07 DT. 25.6.2010 MAY KINDLY BE RECTIFIED. 2. WE FIND THAT THERE IS A MISTAKE APPARENT ON RECO RD AND THEREFORE PARA 25 SHALL NOW BE READ AS UNDER: 25. WE HEARD BOTH THE PARTIES. WE REMIT THE ISSUE TO THE FILE OF THE AO TO DECIDE THE SAME IN LIGHT OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS KALPATARU COLORS & CHEMICALS 233 CTR 313. 3. IN THE RESULT, THE M.A. FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON THIS 23 RD DAY OF FEBRUARY, 2011 SD/- SD/- ( R.K. PANDA) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 23 RD FEBRUARY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR H BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M.A. NO. 640/M/2010 3 DATE INITIALS 1 DRAFT DICTATED ON: 21. 02 .201 1 SR. PS/PS 2. DR AFT PLACED BEFORE AUTHOR: 21 .02.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ __ ____ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______