SHANKAR PACKAGINGS LTD., MUMBAI v. M/s. ACIT Rg. - 5(3), MUMBAI

ITA 1518/MUM/2008 | 1999-2000
Pronouncement Date: 07-05-2010 | Result: Allowed

Appeal Details

RSA Number 151819914 RSA 2008
Assessee PAN AAACS8076P
Bench Mumbai
Appeal Number ITA 1518/MUM/2008
Duration Of Justice 2 year(s) 2 month(s) 7 day(s)
Appellant SHANKAR PACKAGINGS LTD., MUMBAI
Respondent M/s. ACIT Rg. - 5(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 07-05-2010
Date Of Final Hearing 15-12-2009
Next Hearing Date 15-12-2009
Assessment Year 1999-2000
Appeal Filed On 29-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI. N.V. VASUDEVAN (J.M.) AND SHRI. R.K. P ANDA (A.M) ITA NO.1518/MUM/2008 ASSESSMENT YEAR: 1999-2000 SHANKAR PACKAGINGS LTD. A/4 PUTUSHOTTAM BLDG. OPERA HOUSE MUMBAI 400 004. PAN : AAACS8076P VS. ACIT CIR 18(2) PIRAMAL CHAMBER 1 ST FLR. LALBAUG PAREL MUMBAI 400 012. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NITESH JOSHI RESPONDENT BY : SHRI NAVEEN GUPTA O R D E R PER N.V. VASUDEVAN J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 17.01.2007 OF LEARNED CIT(A) - V MUMBAI RELATING TO ASSESSMEN T YEAR 1999-2000. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ A S FOLLOWS: 1. NOT ACCEPTING THAT IF AT ALL WHAT WAS TO BE DE NIED A DEDUCTION U/S.80HHC WAS THE PROFIT MADE ON SALE OF DEPB LICENSES AND THAT THE AMOUNT RECOVERED TOWARDS THE PRINCIPAL VALUE OF THE DEPB ENTITLEMENTS WAS TO BE TREATED AS A RECOUPMENT OF COSTS AND NOT AS AN INCENTIVE U/S.28( IIID) OF THE ACT. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF HDPE/ P P/ WOVEN/ SACKS/ FABRICS. THE ASSESSEE CLAIMED DEDUCTION U/S.80HHC INCLUDING RECEIPTS OF DEPB. HOWEVER THE ASSESSING OFFICER DISALLOWED T HE DEDUCTION CLAIMED BY THE ASSESSEE ON DEPB. ON APPEAL THE LEARNED CIT(A ) UPHELD THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. AGAI NST THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEAL B EFORE THE TRIBUNAL. ITA NO.1518/MUM/2008 A.Y.: 1999- 2000 2 3. THERE IS A DELAY OF 365 DAYS IN FILING THE APPEA L BY THE ASSESSEE. THE ASSESSEE HAD FILED THE APPLICATION FOR CONDONATION OF DELAY. THE MANAGING DIRECTOR OF THE ASSESSEE HAS FILED AN AFFIDAVIT REG ARDING CONDONATION OF DELAY IN FILING THE APPEAL. IN THE APPLICATION FOR CON DONATION OF DELAY IN FILING THE APPEAL IT HAS BEEN STATED THAT THE APPEAL WAS FILED ONLY AFTER NOTICING RECENT JUDGEMENT OF THE ITAT MUMBAI IN THE CASE OF GLENMA RK LABORATORIES WHICH HAS BEEN CIRCULATED TO US BY FIEO IN WHICH THE TRIB UNAL HAD TAKEN A VIEW THAT DEDUCTION U/S.80HHC IS ALLOWABLE ON DEPB RECEI PTS. THE ASSESSEE HAS CLAIMED THAT NON FILLING OF THE APPEAL WITHIN T HE TIME WAS NOT INTENTIONAL. 4. AT THE TIME OF HEARING OF THIS APPEAL IT WAS BRO UGHT TO THE NOTICE THAT THE SIMILAR ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL AND ALSO ISSUE WITH REGARD TO CONDONATION OF DELAY IN FILING THE APPEAL ON IDENTICAL FACTS AND CIRCUMSTANCES WAS CONSIDERED FOR ASSESSMENT YEAR 20 03-04 IN ITA NO.2231/MUM/08 AND THIS TRIBUNAL BY ITS ORDER DATED 11.12.2009 HELD AS FOLLOWS: 3. SHRI G.S. PANDYA MD OF THE COMPANY HAS FILED A N AFFIDAVIT DATED 28.3.2008 INTERALIA STATING THAT THE APPEAL I S BEING FILED ON ACCOUNT OF RECENT JUDGMENT DELIVERED BY THE JURISDI CTIONAL ITAT IN THE CASE OF GLENMARK LABORATORIES WHICH HAS BEEN CIRCULATED TO US BY FIEO. IT WAS FURTHER STATED THAT NON FIL ING OF THE APPEAL WAS NOT WITH ANY MOTIVE AND THE ASSESSEE HAS NOT SE CURED ANY BENEFIT WHATSOEVER BY NOT FILING THE SAID APPEAL IN TIME. IT WAS THEREFORE SUBMITTED THAT THE DELAY MAY BE CONDONED WHICH WAS NOT SERIOUSLY OBJECTED TO BY THE LD. DR. 4. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE AR E NOT CONVINCED WITH THE PLEA TAKEN BY THE ASSESSEE FOR C ONDONATION OF DELAY. HOWEVER IT HAS BEEN CONSISTENTLY HELD BY T HE HONBLE APEX COURT THAT EXPRESSION EACH DAYS DELAY MUST B E EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MA DE AND IT MUST BE APPLIED IN A RATIONAL COMMONSENSE PRAGMATIC MANNER. 5. IN BHARAT AUTO CENTRE VS. CIT AND ANOTHER (2006 ) 282 ITR 366 (ALL.) IT HAS BEEN HELD THAT IN THE MATTER OF C ONDONATION OF DELAY A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAKEN. 6. IN SURYA GENERAL TRADERS VS. CTO (2003) 133 STC 388 389(A.P.) THEIR LORDSHIPS AFTER APPLYING COLLE CTOR LAND ITA NO.1518/MUM/2008 A.Y.: 1999- 2000 3 ACQUISITION V. MST. KATIJI (1987) 167 ITR 471(SC) OBSERVED AND HELD AS UNDER : WHEN AN APPELLANT HAS A GOOD CASE ON MERITS DEFE AT OF HIS CLAIM ON TECHNICAL PLEA OF LIMITATION WOULD ULTIMATELY LEAD TO INJUSTICE. STATE SHOULD NOT STAND BY A TECH NICAL PLEA OF LIMITATION OF THE CITIZENS CASE WAS OTHERWISE M ERITORIOUS 7. IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED O N RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ABOVE DECISIO NS AND KEEPING IN VIEW THAT THE APPELLANT HAS A GOOD CASE ON MERIT S CONDONE THE DELAY. 5. ON MERITS OF THE ISSUE THIS TRIBUNAL IN THE AFOR ESAID DECISION HELD AS FOLLOWS: 10. AT THE TIME OF HEARING BOTH THE PARTIES HAVE A GREED THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE ITA T MUMBAI SPECIAL BENCH IN THE CASE OF M/S. TOPMAN EXPORTS VS . ITO (2009) 318 ITR (AT) 87(MUM.)(SB) AND FURTHER AGREED THAT THE MATTER REQUIRES TO BE RESTORED TO THE FILE OF THE ASSESSIN G OFFICER WITH A DIRECTION TO RECONSIDER THE ISSUE IN LINE WITH THE VIEW TAKEN BY THE AFORECITED DECISION. 11. THAT BEING SO RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) WE SET ASIDE THE ORDERS PASSED BY THE TAX AUTHORITIES ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO RECONSIDER THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH THE LAW I.E. IN THE LIGHT OF THE DECISION OF THE ITAT CITE D (SUPRA) AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS THEREFORE PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 6. RESPECTFULLY FOLLOWING THE AFORESAID DECISION O F THE TRIBUNAL WE CONDONE THE DELAY IN FILING THE APPEAL AND WE DIREC T THE ASSESSING OFFICER TO CONSIDER THE CLAIM OF THE ASSESSEE IN ACCORDANCE WI TH LAW AND IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH REFERRED TO ABOVE AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE A PPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1518/MUM/2008 A.Y.: 1999- 2000 4 7. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 7 TH DAY OF MAY 2010. SD/- (R.K. PANDA) (ACCOUNTANT MEMBER) SD/- (N.V. VASUDEVAN) (JUDICIAL MEMBER) MUMBAI DATED 07.05.2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUMB AI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI