Milton Laminates Ltd., Ahmedabad V. The Dy.CIT.,Circle-4, Ahmedabad

MA 75/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9222 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Section: 28; 2

Judgement Text

MA NOS 75 & 76/AHD/2012 IN ITA NO.634 & 635/AHD/2008 A.YRS..1999 -2000 & 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AH MEDABAD (BEFORE SHRI MUKUL KR.SHRAWAT JM & SHRI ANIL CHATUR VEDI A.M.) M.A. NO.75 & 76/AHD/2012. (ARISING OUT OF ITA NOS.63 4 & 635/AHD/2008) (ASSESSMENT YEAR 1999 -2000 & 2004-05 ) MILTON LAMINATES LTD., CHITRA AMI APARTMENTS, OPP. OILD RBI, ASHRAM ROAD, AHMEDABAD. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4, AHMEDABAD. (RESPONDENT) PAN: AABCM 0398K APPELLANT BY : MS. URVASHI SHODHAN RESPONDENT BY : MR. T,. SHANKAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 7-9-2012 DATE OF PRONOUNCEMENT : 5- 10 -2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THESE TWO MISCELLANEOUS APPLICATIONS BOTH DATED 4- 4-12 FILED ON 9-4- 2012 ARE FILED BY THE ASSESSEE IN RESPECT OF ITA, N O.634/AHD/2008 (FOR A.Y. 1999-2000) AND ITA. NO.635/AHD/2008 (FOR A.Y. 2004- 05). 2. IN MA. NO.75/AHD/2012, THE ASSESSEE HAS STATED T HAT GROUND NOS.3, 4 AND 5 OF ITA NO.634/AHD/2008 (A.Y. 1999-2000) WAS WITH RESPECT TO TAXABILITY OF PROFITS ON SALE OF DEPB LICENSE FOR W ORKING OUT DEDUCTION MA NOS 75 & 76/AHD/2012 IN ITA NO.634 & 635/AHD/2008 A.YRS..1999 -2000 & 2004-05 2 U/S.80HHC. THESE GROUNDS WERE DISPOSED OFF BY HONB LE TRIBUNAL VIDE PARA-4 BY HOLDING AS UNDER:- 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FAIRLY CONCEDED THAT THESE GROUNDS ARE DECIDED AGAINST THE ASSESSEE BY THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF CO MMISSIONER OF INCOME TAX V. KALPATARU COLOURS AND CHEMICALS 328 I TR 451. IN VIEW OF THE ABOVE FAIR ADMISSION ON THE PART OF THE LD. COUNSEL FOR THE ASSESSEE, WE REJECT GROUND NOS.3,4 AND 5 OF THE ASS ESSEES APPEAL. 3. ONE OF THE ISSUE BEFORE HONBLE TRIBUNAL WAS TAXABI LITY OF PROFITS ON SALE OF DEPB LICENSE FOR WORKING OUT DEDUCTION U/S. 80HHC. THE HONBLE TRIBUNAL RELYING ON THE DECISION IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS, 328 ITR 451DISMISSED THE ASSESSEES APPE AL. 4. BEFORE US IT IS NOW SUBMITTED THAT THE HONBLE A PEX COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT REPORTED AT 247 CTR 353 H AS HELD THAT ONLY 90% OF THE PROFIT ON SALE OF DEPB LICENSE IS TO BE EXCLUDED AND NOT THE ENTIRE SUM FOR WORKING OUT DEDUCTION U/S. 80HHC. IN VIEW OF THE AFORESAID DECISION OF APEX COURT IN THE CASE OF TOPMAN EXPORT S (SUPRA) THE LD. A.R. SUBMITTED THAT THERE IS ERROR APPARENT AND THEREFOR E THE ORDER NEEDS TO BE MODIFIED. 5. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT TH ERE IS NO APPARENT MISTAKE IN THE ORDER PASSED BY HONBLE ITAT AS THE HONBLE TRIBUNAL HAD CONSIDERED THE DECISION THAT WAS AVAILABLE AT THAT TIME. HE THUS SUBMITTED THAT THERE WAS NO REASON TO RECALL THE ORDER. MA NOS 75 & 76/AHD/2012 IN ITA NO.634 & 635/AHD/2008 A.YRS..1999 -2000 & 2004-05 3 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT WHILE DECIDING THE ISSUE OF PROFIT ON SALE OF DEPB, THE CO-ORDINATE BENCH HAD RELIED ON THE DECIS ION OF BOMBAY HIGH COURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS (SUPRA) WHEREIN IT WAS HELD THAT AMOUNT REALIZED ON TRANSFER OF DEPB IS PR OFIT ON TRANSFER OF DEPB U/S. 28 (IIID).THE HONBLE APEX COURT IN THE CASE O F TOPMAN EXPORTS VS. CIT (SUPRA) SETTING ASIDE AFORESAID ORDER OF HONBLE BO MBAY HIGH COURT HELD THAT PROFIT ON TRANSFER OF DEPB WOULD BE SALE VALUE OF DEPB LESS ITS FACE VALUE WHICH REPRESENTS THE COST OF DEPB AND NOT THE ENTIRE SUM RECEIVED BY ASSESSEE ON SUCH TRANSFER. 7. THE HONBLE APEX COURT IN THE CASE OF ACIT VS. S AURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 HAS HELD THA T NON CONSIDERATION OF A DECISION OF JURISDICTIONAL COURT OR OF THE HONBL E SUPREME COURT CAN BE SAID TO BE MISTAKE APPARENT FROM THE RECORD. 8. IN THE LIGHT OF THE DECISION OF HONBLE APEX COU RT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND IN THE CASE OF SAURASHTR A KUTCH STOCK EXCHANGE (SUPRA), WE ARE OF THE VIEW THAT THERE IS MISTAKE APPARENT FROM THE RECORD IN THE ORDER PASSED BY CO-ORDINATE BENCH OF ITAT. IN VIEW OF THE AFORESAID FACTS, WE RECALL THE ORDER ONLY FOR T HE LIMITED PURPOSE OF ADJUDICATING GROUND NOS.3,4 & 5 OF ITA NO. 634/AHD/ 2008. IN VIEW OF THE AFORESAID FACTS, WE THUS RECALL THE ORDER FOR LIMIT ED PURPOSE ONLY IN RESPECT OF ISSUE OF CALCULATION OF PROFIT ON SALE OF DEPB D EDUCTION U/S. 80HHC. THUS, MISCELLANEOUS APPLICATION NO.75/AHD/2012 IS A LLOWED. MA NOS 75 & 76/AHD/2012 IN ITA NO.634 & 635/AHD/2008 A.YRS..1999 -2000 & 2004-05 4 9. SINCE THE FACTS IN M.A. NO.76/AHD/2012 ARE SIMIL AR TO M.A. NO.75/AHD/2012, FOR SIMILAR REASONS STATED IN PARAG RAPH 8 ABOVE, WE ALSO RECALL THE ORDER FOR LIMITED PURPOSE ONLY FOR ADJUD ICATING GROUND NOS.3,4 & 5 IN ITA NO. 635/AHD/2008 ALSO. 10. IN THE RESULT BOTH THE MISC. APPLICATIONS ARE A LLOWED FOR LIMITED PURPOSES AS MENTIONED IN PARAGRAPHS-8 & 9 ABOVE. T HE REGISTRY MAY FIX THE HEARING OF THESE TWO APPEALS IN NORMAL COURSE. ORDER PRONOUNCED IN OPEN COURT ON 5 - 10 - 2012. SD/- SD/- (MUKUL KUMAR SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)- 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. MA NOS 75 & 76/AHD/2012 IN ITA NO.634 & 635/AHD/2008 A.YRS..1999 -2000 & 2004-05 5 1.DATE OF DICTATION 26 - 9 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 26,27,28, 2 / 9-10 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..