The ACIT, Circle-2, RAJKOT-GUJARAT V. Smt Meenaben H. Lakhani, RAJKOT-GUJARAT

MA 75/RJT/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7317 (ITAT-RAJKOT)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-11-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-09-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 16-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) M.A. NO.75/RJT/2010 (ARISING OUT OF I.T.A. NO.125/RJT/2008) (ASSESSMENT YEAR 2004-05) THE ACIT, CIR.II VS SMT. MEENABEN H LAKHANI RAJKOT C/O D.M. ENTERPRISE 404, EMBASSY TOWER JAWAHAR ROAD, RAJKOT PAN : AAVPL3224G (APPLICANT) (RESPONDENT) DATE OF HEARING : 04-11-2011 DATE OF PRONOUNCEMENT : 04-11-2011 APPLICANT BY : SHRI AVINASH KUMAR RESPONDENT BY : SHRI JC RANPURA O R D E R PER AL GEHLOT (AM) THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE ARISES OF THE ORDER PASSED BY THE TRIBUNAL DATED 17-01-2009 FOR THE ASS ESSMENT YEAR 2004-05. 2. IN THE MISCELLANEOUS APPLICATION IT IS POINTED O UT BY THE REVENUE THAT THE ITAT WHILE DECIDING THE APPEAL HAS SENT BACK THE MA TTER RELATED TO DEDUCTION U/S 80HHC ON DEPB TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER TAKING INTO CONSIDERATION THE DE CISION IN THE CASE OF ECONOMIC TRADERS & ORS VS ACIT IN ITA NOS.70 & 71/RJT/2007 A ND IN THE LIGHT OF DECISION OF THE ITAT, MUMBAI SPECIAL BENCH IN THE CASE OF TO PMAN EXPORT VS ITO 125 TTJ (MUM) (SB) 289. IT IS FURTHER SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT MA NO.75/RJT/2010 2 THE ISSUE IS COVERED IN FAVOUR OF THE REVENUE AND A GAINST THE ASSESSEE BY THE JUDGMENT OF THE APEX COURT IN THE CASE OF LIBERTY I NDIA LTD VS. CIT 317 ITR 218(SC) WHICH AFFIRMS THE JUDGMENT OF BOMBAY HIGH C OURT IN THE CASE OF KALPATARU COLOURS & CHEMICALS (BOMBAY HC) (ITA (LUD HIANA) NO.2887 OF 2009 WHICH DID NOT APPROVE THE SPECIAL BENCH DECISION IN THE CASE OF TOPMAN EXPORTS. THE LD.AR SUBMITTED THAT THE JUDGMENT OF THE APEX COURT WAS NOT THERE WHEN THE ITAT DECIDED THE ISSUE. 3. WE HAVE HEARD THE LD.REPRESENTATIVES OF THE PART IES, RECORD PERUSED. WE FIND THAT IN THE CASE OF TURBO BEARING PVT LTD IN M A NO.32/RJT/2010 VIDE ORDER DATED 31 ST DECEMBER, 2010 HAS CONSIDERED AN IDENTICAL SET OF FACTS AND CIRCUMSTANCES AND HELD AS FOLLOWS: 2. THE ITAT, VIDE ORDER DATED 07-08-2009 IN ITA NO.51/RJT/2008 FOR ASSESSMENT YEAR 2003-04 WHILE DE CIDING THE ISSUE FOLLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF INDIAN GILLETIN & CHEMICAL UNIT 275 ITR 284 (GUJ) HAS HELD IN FAVOUR OF THE ASSESSEE TREATING THAT DEPB INCOME IS DERIVED FROM INDUSTRIAL UNDERTAKING. IT IS POINTED OUT IN THE MISCELLANEOUS APPLICATION THAT THE APEX COURT IN THE CASE OF LIBE RTY INDIA LTD VS CIT 317 ITR 218 (SC) HELD THAT DEPB / DUTY DRAW BAC K ARE INCENTIVE WHICH FLOWS FROM THE SCHEME FRAMED BY THE CENTRAL GOVERNMENT THROUGH INCENTIVE PROFITS AND ARE NOT PR OFIT DERIVED FROM THE ELIGIBLE BUSINESS AND THEREFORE, DEPB / DUTY DR AW BACK RECEIVED DO NOT FORM PART OF NET PROFIT OF THE INDU STRIAL UNDERTAKING FOR THE PURPOSE OF DEDUCTION U/S 80IA / 80IB OF THE ACT. THE CONTENTION OF THE REVENUE IS THAT THE JUDGMENT OF T HE JURISDICTIONAL HIGH COURT IN INDIAN GILLETIN & CHEMICAL UNIT (SUPR A) IS THUS IMPLIEDLY REVERSED BY THE APEX COURT AND THEREFORE THERE IS A MISTAKE APPARENT IN THE IMPUGNED ORDER OF THE TRIBU NAL. 3. AFTER HEARING THE LD.DR WE FIND THAT THE ITAT HA S DECIDED THE ISSUE FOLLOWING THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN MA NO.75/RJT/2010 3 THE CASE OF INDIAN GILLETIN & CHEMICAL UNIT (SUPRA) WHICH HAS BEEN IMPLIEDLY REVERSED BY THE APEX COURT IN THE JUDGMEN T OF LIBERTY INDIA LTD (SUPRA). IN THE LIGHT OF LAW LAID DOWN B Y THE APEX COURT WE RECALL OUR ORDER DATED 07-08-2009. THE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN DUE COURSE. 4. CONSISTENT WITH THE PRECEDENT WE MODIFY THE ORDE R OF ITAT AND DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE IN ACCORDANCE WITH THE ABOVE JUDGMENT OF THE APEX COURT IN THE CASE OF LIBERTY INDIA LTD (SU PRA) AND IN ACCORDANCE WITH LAW AFTER PROVIDING OPPORTUNITY OF HEARING TO THE A SSESSEE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED AS INDICATED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE AS M ENTIONED ABOVE. SD/- SD/- (T.K. SHARMA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 04 TH NOVEMBER, 2011 PK/- COPY TO: 1. APPLICANT 2. RESPONDENT 3. THE CIT(A)-III, RAJKOT 4. THE CIT -II, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT