ACIT 8(1), V. INTERCOM INDIA LTD,

MA 766/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3785 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2002-2003
• Appeal Filed On: 19-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARUN C BHARAT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI N.V.VASUDEVAN, JM M.A.NO.766/MUM/2009 (ARISING OUT OF ITA NO.4256/MUM/2006 : ASST.YEAR 20 02-2003) THE ASSTT.COMMISSIONER OF INCOME-TAX RANGE 8(1) MUMBAI. VS. M/S.ENERCON (INDIA) LIMITED KOLSITE HOUSE, PLOT NO.31 SHAH INDUSTRIAL ESTATE, VEER DESAI ROAD ANDHERI (WEST), MUMBAI 400 053. PA NO.AAACE0319D (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ARUN C.BHARAT RESPONDENT BY : SHRI J.P.BAIRAGRA `O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE REVENUE PRAYING FOR THE RECTIFICA TION OF THE EX PARTE ORDER OF THE TRIBUNAL DATED 26 TH NOVEMBER, 2007 IN ITA NO.4256/MUM/2006. THE LEARNE D DEPARTMENTAL REPRESENTATIVE CONTENDED THAT THE TRIB UNAL VIDE PARA 6 OF THE IMPUGNED ORDER ACCEPTED THE ASSESSEES CONTENTION O F COMPUTING THE BOOK PROFIT U/S.115JB AFTER REDUCING THE PROFIT ELIGIBLE FOR DE DUCTION U/S.80HHC BY RELYING ON THE ORDER OF THE SPECIAL BENCH IN SYNCOME FORMULATIONS INDIA LTD. [106 ITR 193 (MUM.)(SB)] . HE CONTENDED THAT THE HONBLE BOMBAY HIGH COURT I N CIT VS. AJANTA PHARMA LIMITED [(2009) 318 ITR 252 (BOM.)] HAS REVERSED THE SPECIAL BENCH ORDER IN THE CASE OF SYNCOME FORMULATIONS INDIA LTD. AND AS A RESULT OF THAT THE VIEW TAKEN BY THE TRIBUNAL BECOMES ERRONEOUS REQUIRING R ECTIFICATION. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY ACCEPTED THAT THE I SSUE NOW DESERVES TO BE DECIDED AGAINST THE ASSESSEE IN VIEW OF THE JUDGEMENT OF TH E HONBLE JURISDICTIONAL HIGH COURT IN AJANTA PHARMA LIMITED (SUPRA). MA NO.766/MUM/2009 M/S.ENERCON (INDIA) LIMITED. 2 2. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS OBVIOUS THAT THE VIEW TAKEN BY THE TRI BUNAL IN PARA 6 OF THE IMPUGNED ORDER IS NO MORE VALID IN VIEW OF THE SUBSEQUENT JU DGEMENT IN THE CASE OF AJANTA PHARMA LIMITED (SUPRA) . WE, THEREFORE, MODIFY PARA 6 OF THE IMPUGNED ORDE R TO READ AS UNDER:- THE NEXT DISPUTE IN THE ASSESSEES APPEAL IS IN R ESPECT OF COMPUTATION OF BOOK PROFIT U/S.115JB OF THE ACT. THE ASSESSEE H AS COMPUTED THE BOOK PROFIT U/S.115JB AFTER REDUCING THE PROFIT ELI GIBLE FOR DEDUCTION U/S.80HHC. THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED IN VIEW OF THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT I N THE CASE OF CIT VS. AJANTA PHARMA LIMITED [(2009) 318 ITR 252 ( BOM.)] . THE IMPUGNED ORDER IS, THEREFORE, UPHELD ON THIS ISSUE. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JUNE, 2010. SD/- SD/- (N.V.VASUDEVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 25 TH \ JUNE, 2010. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) VIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.