Crystal Quinone Pvt. Ltd., Ahmedabad V. The Dy.CIT(OSD),Range-1, Ahmedabad

MA 94/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8880 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: M G PATEL
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWATS, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.94/AHD/2012 IN I.T.A. NO.3530 / AHD/2007 (ASSESSMENT YEAR 2004-05) CRYSTAL QUINONE PVT. LTD., 143, GIDC, PHASE II, VATVA, AHMEDABAD VS. DCIT, RANGE I, AHMEDABAD PAN/GIR NO. : AABCC1413H (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI M G PATEL, AR RESPONDENT BY: SHRI D K SINGH, SR. DR DATE OF HEARING: 21.09.2012 DATE OF PRONOUNCEMENT: 28.09.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE ALLEGING CERTAIN MISTAKE IN THE TRIBUNAL ORDER. IT IS ALSO SUBMITTED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION THAT THE ADDITIONA L GROUND RAISED BY THE ASSESSEE IN THE APPEAL WAS REJECTED BY THE TRIBUNAL ON THIS BASIS THAT THE SAME WAS NOT PRESSED BY THE ASSESSEE. IT HAS ALSO BEEN SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT AT THE TIME OF HEARI NG OF THE APPEAL, THIS ADDITIONAL GROUND WAS NOT PRESSED IN VIEW OF THE DE CISION OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF KALPATARU COLOUR &CHEMICALS VS CIT AS REPORTED IN 328 ITR 451 AS PER WHICH, THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF TOPMAN M.A.NO.94 /AHD/2012 2 EXPORTS VS ITO AS REPORTED IN 33 SOT 337 (MUM. SB) WAS REVERSED. IT IS ALSO SUBMITTED THAT SUBSEQUENT TO THIS TRIBUNAL DECISION, THERE IS JUDGEMENT OF HONBLE APEX COURT IN THE CASE OF TOPM AN EXPORTS AS REPORTED IN 342 ITR 49 (S.C.) WHICH IS DATED 08.02. 2012 AS PER WHICH, THE ENTIRE SALE PROCEEDS OF DEPB CANNOT BE TREATED AS P ROFIT ON SALE OF DEPB BUT ONLY THE DIFFERENCE BETWEEN THE SALE VALUE AND FACE VALUE OF DEPB CAN BE CONSIDERED AS PROFIT ON SALE OF DEPB. IT IS SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT IN VIEW OF THIS SUBS EQUENT JUDGMENT OF HONBLE APEX COURT, THE ASSESSEE SHOULD BE GIVEN ON E OPPORTUNITY FOR ARGUING THE ADDITIONAL GROUND AS ORIGINALLY FILED. 2. IT IS ALSO SUBMITTED IN THE MISCELLANEOUS APPLIC ATION THAT GROUND NO.2 OF THE APPEAL WAS ALSO REJECTED BY THE TRIBUNA L ON THE BASIS OF THE SAME DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF KALPATARU (SUPRA) WHICH IS NO LONGER A GOOD LAW IN VIEW OF THE HONBLE APEX COURT DECISION IN THE CASE OF TOPMAN EXPORTS ( SUPRA) AND HENCE, THE TRIBUNAL DECISION IS NOT IN LINE WITH THE SUBSE QUENT JUDGEMENT OF HONBLE APEX COURT AND, THEREFORE, THIS IS AN APPAR ENT MISTAKE IN THE TRIBUNAL ORDER ON THIS ISSUE ALSO. 3. IN THE COURSE OF HEARING BEFORE US, LD. A.R. REI TERATED THE SAME CONTENTIONS, WHICH ARE RAISED IN THE MISCELLANEOUS APPLICATION. LD. D.R. SUBMITTED THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ISSUE INVOLVED IN THE ADDITIONAL GROUND IS REGARDING ALLO WABILITY OF DEDUCTION TO THE ASSESSEE U/S 80HHC IN RESPECT OF DEPB. AS PER GROUND NO.2, THE CLAIM OF THE ASSESSEE WAS THIS THAT DEDUCTION IS AL LOWABLE TO THE ASSESSEE U/S 80HHC IN RESPECT OF DEPB INCOME OF RS.94,76,464 /-. AS PER THE ADDITIONAL GROUND, THE ISSUE RAISED BY THE ASSESSEE WAS THIS THAT INSTEAD OF REDUCING THE ENTIRE SALE PROCEEDS OF DEPB LICENSE S ALE OF RS.94,34,964/-, M.A.NO.94 /AHD/2012 3 ONLY PROFIT ON SALE OF DEPB LICENSE SHOULD BE CONSI DERED FOR EXCLUSION FROM BUSINESS PROFIT. HENCE, THE ISSUE INVOLVED IN GROUND NO.2 AND IN THE ADDITIONAL GROUND IS INTERCONNECTED. GROUND NO.2 O F THE ASSESSEE WAS REJECTED BY THE TRIBUNAL BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF KALPATARU COLOUR AND CHEMICALS (SUPRA) BUT AS PER THE SUBSEQUENT DECISION OF THE H ONBLE SUPREME COURT RENDERED IN THE CASE OF TOPMAN EXPORTS (SUPRA), THI S TRIBUNAL DECISION IS NOT IN LINE WITH THIS SUBSEQUENT DECISION OF HONBL E APEX COURT AND, THEREFORE, THIS IS AN APPARENT MISTAKE IN THE TRIBU NAL ORDER ON THIS ASPECT I.E. GROUND NO.2. SINCE THE ADDITIONAL GROUND IS A LSO INTERCONNECTED AND THE SAME WAS NOT PRESSED BY THE ASSESSEE ONLY IN VI EW OF THE SAME JUDGEMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF KALPATARU COLOUR & CHEMICALS (SUPRA), WE FEEL THAT THIS TRIBUNAL ORDER SHOULD BE RECALLED TO THE EXTENT OF DECIDING GROUND NO.2 AND THE ADDITIONAL GROUND AFRESH AS PER LAW AFTER HEARING B OTH THE SIDES. HENCE, WE RECALL THE TRIBUNAL ORDER TO THIS EXTENT TO DECI DE GROUND NO.2 AND THE ADDITIONAL GROUND AFRESH AS PER LAW AFTER HEARING B OTH THE SIDES, WE HOLD ACCORDINGLY. THE REGISTRY IS DIRECTED TO FIX THIS APPEAL FOR HEARING IN DUE COURSE FOR DECIDING GROUND NO.2 AND ADDITIONAL GROU ND AND NOTICES SHOULD BE ISSUED TO BOTH THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED IN TERMS INDICATED ABOVE. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP M.A.NO.94 /AHD/2012 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 24.09/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER26/09/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28/09/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.28/9/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28/09/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .