ASST CIT 14(1), V. BHAIRAV EXPORTS,

MA 644/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6431 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-04-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 28-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) MISCELLANEOUS APPLICATION NO.644/MUM/2010 IN ITA NO.1869/MUM/2008 (ASSESSMENT YEAR: 1998-99) ASSISTANT COMMISSIONER OF INCOME TAX,14(1), EARNEST HOUSE, NARIMAN POINT, MUMBAI-400021 M/S BHAIRAV EXPORTS, 94/96,BHULESHWAR ROAD, BHAGWANKALA BUILDING, 1 ST FL, MUMBAI-400002 PAN: AAEFB8425A AAPPLICANT V/S RESPONDENT APPLICANT BY : SHRI SUREN DRA KUMAR RESPONDENT BY : NONE. O R D E R PER D.K.AGARWAL (JM) THIS MISC.APPLICATION FILED BY THE REVENUE IS DIR ECTED AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.1869/M/2008 FOR THE ASSESSMENT YEAR 1998-99 DA TED 1.10.2009 2. THE REVENUE IN THE PRESENT MISC. APPLICATION HAS RAISED THAT THE ITAT DIRECTED THAT ISSUE OF DEDUCT ION IN RESPECT OF DEPB TO DECIDE AFRESH IN THE LIGHT OF TH E DECISION OF THE SPECIAL BENCH IN THE CASE OF M/S TOPMAN EXPO RTS V.S ITO IN ITA NO.5769/MUM/2006 (2009) 318 ITR 87 (AT). SINCE THE SAID SPECIAL BENCH DECISION WAS NOT APPROVED B Y THE HON. BOMBAY HIGH COURT BY THE JUDGMENT DELIVERED ON 29 TH JUNE, 2010 IN THE CASE OF CIT V/S KALPATARU COLOUR S AND MISCELLANEOUS APPLICATION NO.644/MUM/2010 IN ITA NO.1869/MUM/2008 (ASSESSMENT YEAR: 1998-99) 2 CHEMICALS (2010) 328 ITR 451, THE REVENUE SEEKS MODIFICATION OF THE DIRECTION GIVEN IN PARA 3 OF TH E ORDER OF THE TRIBUNAL 3. AT THE TIME OF HEARING, THE LEARNED DR SUPPORTS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE WH ICH WAS NOT OBJECTED TO BY THE ASSESSEE VIDE HIS REPLY DATE D 21.3.2011, PLACED ON RECORD. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LX. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS BRIEFLY STATED, THE ISSUE OF ALLOWANCE OF DEDUCTION U/S 8 0HHC ON DEPB RECEIVABLES WAS RESTORED BACK TO THE AO TO CO NSIDER THE SAME IN THE LIGHT OF THE DECISION OF THE SPEC IAL BENCH (SUPRA) AFRESH. HOWEVER, THE SAID DECISION OF THE S PECIAL BENCH HAS SINCE BEEN OVERRULED BY THE HON. JURISDIC TIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CH EMICALS (SUPRA) WHICH IS BINDING. IN THIS VIEW OF THE MATTE R, THERE IS NO OTHER OPTION THAN TO MODIFY THE ORDER OF THE TRI BUNAL IN CONFORMITY WITH THE JUDGMENT OF HON. JURISDICTIONAL HIGH COURT (SUPRA). THE LAST SIX LINES OF PARAGRAPHS 3 O F THE ORDER OF THE TRIBUNAL DATED 01.10.2009 (SUPRA) STAND MODI FIED AS UNDER : PARA 3: SINCE THE AFORESAID DECISION OF SPECIAL BENCH OF THE TRIBUNAL HAS BEEN OVERRULED, THIS ISSUE HAS TO BE DECIDED IN THE LIGHT OF THE DECISION OF THE HON. MISCELLANEOUS APPLICATION NO.644/MUM/2010 IN ITA NO.1869/MUM/2008 (ASSESSMENT YEAR: 1998-99) 3 JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS (SUPRA) OR ANY OTHER DECISION OF THE SUPERIOR COURT ON THIS ISSUE. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE 5. IN THE RESULT, THE MISC APPLICATION FILED BY THE REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 29 TH APRIL, 2011. SD SD (R.K.PANDA) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 29 TH APRIL, 2011 SRL:29411 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI