ASST CIT 14(1), V. DEVANI TEXTILES,

MA 642/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6459 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 28-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA
• Assessee Lawyers: VIMAL PUNNIYA
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO. 642/MUM/2010 (ARISING OUT OF ITA NO. 2617/MUM/2008 (ASSESSMENT YEAR: 2004-05) A C I T - 14(1) M/S. DEVANI TEXTILES MUMBAI 351/352 SHEIK MEMON STREET VS. 2ND FLOOR, NEW MARKET MUMBAI 400002 PAN - AAAFD 2703 K APPLICANT RESPONDENT APPLICANT BY: SHRI R.S. SRIVASTAVA RESPONDENT BY: SHRI VIMAL PUNNIYA O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVE NUE AGAINST THE ORDER OF THE ITAT BENCH D IN ITA NOS. 2616 & 2617/MUM/2 008. 2. REVENUE HAS RAISED THE PRESENT MA AS THE ITAT DIREC TED THE ISSUE OF DEDUCTION IN RESPECT OF DEPB TO DECIDE AFRESH IN TH E LIGHT OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF M/S. TOPMAN EXPORT S VS. ITO IN ITA NO. 5769/MUM/2006. SINCE THE SAID SPECIAL BENCH DECISIO N WAS NOT APPROVED BY THE HON'BLE BOMBAY HIGH COURT BY THE JUDGEMENT DELI VERED ON 29 TH JUNE 2010 IN THE CASE OF CIT KALPATARU COLOURS AND CHEMI CALS 328 ITR 451, REVENUE SEEKS MODIFICATION OF THE DIRECTION GIVEN I N PARA 4 OF THE ITAT ORDER. 3. THE LEARNED A.R. OBJECTED TO THE MA STATING THAT AT THE TIME OF PASSING THE ORDER BY THE ITAT THE SAID DECISION OF THE HON' BLE BOMBAY HIGH COURT WAS NOT AVAILABLE AND SO THERE IS NO NEED TO RECONS IDER THE DIRECTION. 4. WE HAVE CONSIDERED THE ISSUE. AS BRIEFLY STATED THE ISSUE OF ALLOWANCE OF 80HHC DEDUCTION ON DEPB RECEIVABLES WAS RESTORED BACK TO THE ASSESSING OFFICER TO CONSIDER THE SAME IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH AFRESH. HOWEVER, BEFORE THE SAID ORDE R CAN BE GIVEN EFFECT TO, THE DECISION OF THE SPECIAL BENCH WAS OVERRULED BY THE HON'BLE BOMBAY HIGH MA NO. 642/MUM/2010 M/S. DEVANI TEXTILES 2 COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICAL S 232 CTR 313. THE A.O. IS LEFT WITH THE PIQUANT SITUATION WHEREIN HE CANNOT IMPLEMENT THE ORDER OF THE ITAT AS THE JURISDICTIONAL HIGH COURT ORDER DID NOT APPROVE THE FINDINGS OF THE SPECIAL BENCH. IN VIEW OF THIS, THE RE IS NO OTHER OPTION THAN TO MODIFY THE ORDER OF THE TRIBUNAL TO BE IN CONFOR MITY WITH THE JURISDICTIONAL HIGH COURT JUDGEMENT. THE OBJECTION OF THE LD. COUN SEL IS OF ACADEMIC IN NATURE. IN THIS CASE THE ITAT HAS NOT DECIDED THE I SSUE. IT DIRECTED THE AO TO RECONSIDER IN THE LIGHT OF ORDER OF SPECIAL BENCH. THAT ORDER OF SPECIAL BENCH WAS REVERSED BY THE JURISDICTIONAL HIGH COURT. SO T HE DIRECTION GIVEN CAN NOT BE IMPLEMENTED BY THE AO AS OF NOW. HENCE THE REVEN UE APPROACHED THIS BENCH FOR SUITABLE MODIFICATION OF THE ORDER ON THE ISSUE. IN VIEW OF THIS THE OBJECTION OF THE LEARNED COUNSEL IS NOT SUSTAINABLE . 5. PARA 4 OF THE ORDER DT. 30TH SEP 2009 STANDS MODIFI ED AS UNDER. 4. THIS ISSUE HAS TO BE DECIDED IN THE LIGHT OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS 232 CTR 313/ 328 ITR 451 OR ANY OTHER DECISION OF THE S UPERIOR COURT ON THIS ISSUE. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FI LE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVING DUE OPPORTUNITY TO ASSESSE E. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 1 ST APRIL 2011. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 1 ST APRIL 2011 COPY TO: THE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) XIV, MUMBAI 3. THE CIT XIV, MUMBAI CITY 4. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.