ADDL CIT RG 14(1), MUMBAI v. BOMBAY EXPORTS, MUMBAI

ITA 1380/MUM/2010 | 2003-2004
Pronouncement Date: 28-07-2011 | Result: Allowed

Appeal Details

RSA Number 138019914 RSA 2010
Assessee PAN AADFB5438N
Bench Mumbai
Appeal Number ITA 1380/MUM/2010
Duration Of Justice 1 year(s) 5 month(s) 10 day(s)
Appellant ADDL CIT RG 14(1), MUMBAI
Respondent BOMBAY EXPORTS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-07-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted J
Tribunal Order Date 28-07-2011
Date Of Final Hearing 28-07-2011
Next Hearing Date 28-07-2011
Assessment Year 2003-2004
Appeal Filed On 18-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH MUMBAI BEFORE SHRI R.S. PADVEKAR JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER ITA NO. 1380/MUM/2010 (ASSESSMENT YEAR: 2003-04) D C I T 14(1) M/S. BOMBAY EXPORTS ROOM NO. 201 II FLOOR 110 CREATIVE INDUSTRIAL EST ATE EARNEST HOUSE NARIMAN POINT VS. SITARAM MILL COMPOUND MUMBAI 400021 N.M. JOSHI MARG LOWER PAREL MUMBAI 400011 PAN - AADFB 5438 N APPELLANT RESPONDENT APPELLANT BY: SHRI D.S. SUNDER SINGH RESPONDENT BY: DR. P. DANIEL DATE OF HEARING: 28.07.2011 DATE OF PRONOUNCEMENT: 28.07.2011 O R D E R PER B. RAMAKOTAIAH A.M. BY WAY OF THIS APPEAL THE REVENUE CHALLENGES THE CO RRECTNESS OF THE ORDER OF THE CIT(A) DATED 30.11.2009 IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 254 OF THE I.T. ACT DATED 22. 12.2008. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THE APP EAL: - 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND F ACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) ERRED IN IGNORING THE FINDINGS OF THE AS SESSING OFFICER IN PARA 5 OF THE ASSESSMENT ORDER HAS CLEARLY STATE D THAT ALSO IN VIEW OF THE INABILITY TO FULFIL ANY OF THE TWO COND ITIONS INTRODUCED VIDE AMENDMENT OF TAXATION LAWS (AMENDMENT) ACT 20 05 THE CLAIM OF DEDUCTION U/S. 80HHC OF THE I.T. ACT 1961 ON SUCH DEPB RECEIPTS IS DISALLOWED. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE FACT T HAT THE DECISION OF THE HON'BLE ITAT IN THE CASE OF GLENMARK LABORAT ORIES VS. DCIT IN ITA NO. 5979(MUM) OF 2006 DT. 27.12.2007 (1 16 TTJ 131) MUMBAI HAS NOT BEEN ACCEPTED BY THE DEPARTMEN T. AN APPEAL BEFORE THE HON'BLE HIGH COURT HAS BEEN FILED . THE LD. CIT(A) HAS ERRED IN IGNORING THIS FACT IN DIRECTING THE AO TO FOLLOW THE ABOVE DECISION. ITA NO. 1380/MUM/2010 M/S. BOMBAY EXPORTS 2 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING THE FACT T HAT THE AMENDMENT INSERTED VIDE TAXATION LAWS (AMENDMENT) A CT 2005 IS WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL 1998 AND HENCE THE TWO CONDITIONS LAID DOWN ARE TO BE FULFILLED BY THE ASSESSEE. 3. THE LEARNED D.R. SUBMITTED THAT THE ISSUE WAS ALREA DY DECIDED BY THE HON'BLE HIGH COURT IN FAVOUR OF THE REVENUE AND AGA INST THE ASSESSEE BY THE JUDGEMENT OF CIT KALPATARU COLOURS AND CHEMICALS 32 8 ITR 451 ON THE ISSUE OF DEPB AND THEREFORE THE ORDER OF THE CIT(A) REQUI RE MODIFICATION. 4. ASSESSEE HAS FILED A DECLARATION UNDER SECTION 158( 1) OF THE ACT STATING THAT THE QUESTION OF LAW ARISING IN THE PRESENT APP EAL IS IDENTICAL WITH THE QUESTION OF LAW PENDING BEFORE THE HON'BLE SUPREME COURT IN ASSESSEES OWN CASE FOR A.Y. 2004-05 AND THE SPECIAL WRIT PETITION NO. 32228 OF 2010 DATED 18.10.2010 HAS BEEN ADMITTED BY THE HON'BLE SUPREME COURT BY CONDONING THE DELAY. IT IS STATED IN THE DECLARATION THAT THE FINAL DECISION ON THE QUESTION OF LAW PENDING BEFORE THE HON'BLE SUPREME COURT IN ASSESSEES OWN CASE FOR A.Y. 2004-05 IN THE APPEAL FILED UNDER SEC TION 261 OF THE ACT MAY BE APPLIED FOR DECIDING THE QUESTION OF LAW ARISING IN THE PRESENT APPEAL. 5. THE LEARNED D.R. WAS DIRECTED TO CALL FOR THE REPOR T OF THE A.O. AND ACCORDINGLY THE A.O. HAS FURNISHED HIS REPORT DATED 21.07.2011. THE A.O. HAS NOT OBJECTED TO THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE. WE ACCORDINGLY ADMIT THE DECLARATION FILED BY THE ASSE SSEE. AS WE HAVE ADMITTED THE DECLARATION/CLAIM OF ASSESSEE IN CONFORMITY WIT H THE PROVISIONS OF SUB- SECTION (5) OF SECTION 158A WE DIRECT THAT WHEN TH E QUESTION OF LAW BEFORE THE HON'BLE SUPREME COURT BECOMES FINAL THE SAME WI LL BE APPLIED TO THE PRESENT ASSESSMENT YEAR AND IF NECESSARY THE A.O. CAN AMEND THE ORDER WITH REFERENCE TO IN CONFORMABLY TO THE SAID DECISI ON. 6. IN THE ABOVE TERMS REVENUES APPEAL IS DISPOSED OFF . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JULY 2011. SD/- SD/- (R.S. PADVEKAR) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 28 TH JULY 2011 ITA NO. 1380/MUM/2010 M/S. BOMBAY EXPORTS 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXV MUMBAI 4. THE CIT XIV MUMBAI CITY 5. THE DR J BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.