ACIT CIR 16(1), MUMBAI v. MAYFAIR INTERNATIONAL, MUMBAI

ITA 1750/MUM/2010 | 2003-2004
Pronouncement Date: 22-02-2012 | Result: Dismissed

Appeal Details

RSA Number 175019914 RSA 2010
Assessee PAN AAFFM7392E
Bench Mumbai
Appeal Number ITA 1750/MUM/2010
Duration Of Justice 1 year(s) 11 month(s) 18 day(s)
Appellant ACIT CIR 16(1), MUMBAI
Respondent MAYFAIR INTERNATIONAL, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 22-02-2012
Date Of Final Hearing 14-02-2012
Next Hearing Date 14-02-2012
Assessment Year 2003-2004
Appeal Filed On 05-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE HONBLE PRESIDENT SHRI G.E.VEERABHADRAPPA AND SHRI D.K.AGARWAL (JM) ITA NO.1749 AND 1750/MUM/2010 (ASSESSMENT YEARS:2002-03 AND 2003-04) ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-16(1) MATRU MANDIR MUMBAI-400007. M/S MAYFAIR INTERNATIONAL 16 SARVODAYA MILL COMPOUND UNIT NO.15(15) & 15(16) TARDEO ROAD MUMBAI-400034 PAN: AAFFM7392E APPELLANT V/S RESPONDENT DATE OF HEARING : 14.2.2012 DATE OF PRONOUNCEMENT : 22.2.2012 APPELLANT BY : SHRI ARUN KUMAR RESPONDENT BY : NONE O R D E R PER D.K.AGARWAL (JM) THESE TWO APPEALS PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 3.12.20 09 AND 15.12.2009 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS 2002-03 AND 2003-04 AGAINST THE DIRECTION TO THE AO TO TREAT THE SALE OF DEPB LICE NSES AS DECIDED BY THE SPECIAL BENCH OF TRIBUNAL IN TOPMAN EXPORTS V/S ITO (2010) 318 ITR 87 ITA NO.1749 AND 1750/MUM/2010 (AYS:2002-03 AND 2003-04) 2 (MUM)(SB)(AT) AND CALCULATE DEDUCTION U/S 80HHC. SINCE FACTS ARE IDENTICAL AND ISSUES INVOLVE ARE COMMON BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN THIS CASE THE ORIGINAL NOTICE OF DATE OF HEARING WAS SENT BY RPAD FIXING THE CASE FOR 3.2.2011. HOWEVER THE CASE WAS ADJOURNED AND THE FINAL NOTICE OF DATE OF HEARING WAS PLACED ON NOTI CE BOARD FIXING THE DATE OF HEARING ON 14.2.2012. HOWEVER AT THE TIME OF HEARING NONE WAS PRESENT O N BEHALF OF THE ASSESSEE NOR FILED ANY APPLICATION FO R ADJOURNMENT OF THE CASE. THEREFORE IT WAS DECIDED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE O N MERITS AFTER HEARING THE LEARNED D.R. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF EXPORT. THE SCRUTINY ASSESSMENTS U/S 143(3) WERE COMPLETED FOR THE ASSESSMENT YEARS 2002-03 AND 2003-04 ON 31.1.2005 AND 14.9.2005 DETERMINING THE TOTAL INCOM E OF THE ASSESSEE AT RS.73 60 470/- AND RS.41 89 020 /- AS AGAINST THE RETURNED INCOME OF RS.22 28 580/- A ND RS.19 63 656/- RESPECTIVELY. ON APPEAL THE LD. ITA NO.1749 AND 1750/MUM/2010 (AYS:2002-03 AND 2003-04) 3 CIT(A) HOWEVER DIRECTED THE AO TO GIVE OPPORTUNI TY TO THE ASSESSEE TO PROVE THAT IT HAD FULFILLED CONDITIONS AS PROVIDED UNDER THE 3 RD PROVISO TO SECTION 80HHC(3) OF THE INCOME TAX ACT 1961 (THE ACT). ACCORDINGLY FRESH OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. THE AO OBSERVED THAT THE MAJOR ADDITION TO THE RETURNED INCOME WAS ON ACCOUNT OF DISALLOWANCE OF DEDUCTION U/S 80HHC OF THE ACT ON ACCOUNT OF S ALE OF DEPB LICENSE. ACCORDING TO THE AO THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN UNDER T HE THIRD PROVISO TO SECTION 80HHC(3) AND THE BOARD CIRCULAR NO.2/06 DATED 17.1.2006 AND HENCE THE AO COMPLETED THE ASSESSMENTS AT THE SAME INCOME AS ASSESSED ORIGINALLY VIDE SEPARATE ORDERS DATED 4.3.2008. ON APPEAL THE LD. CIT(A) FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO (SUPRA) DIRECTED T HE AO TO TREAT THE SALE OF DEPB LICENSE AS PER THE O RDER OF THE TRIBUNAL (SUPRA) AND RECALCULATE THE DEDUC TION U/S 80HHC OF THE ACT. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US CHALLENGING I N ALL THE GROUNDS THE DIRECTION OF THE LD. CIT(A) TO ITA NO.1749 AND 1750/MUM/2010 (AYS:2002-03 AND 2003-04) 4 RECOMPUTE THE DEDUCTION AS PER THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL (SUPRA). 5. AT THE TIME OF HEARING THE LD.DR FAIRLY SUBMIT S THAT THAT THIS ISSUE STANDS COVERED IN FAVOUR OF T HE ASSESSEE BY THE RECENT DECISION OF THE HONBLE SUPREME COURT IN M / S TOPMAN EXPORTS V/S CIT AND ORS. CONNECTED APPEALS IN CIVIL APPEAL NO.1699 OF 2012 ARISING OUT OF SLP ( C ) NO . 26558 OF 2010 DATED 8.2.2012 THEREFORE THE ISSUE MAY BE DECIDED ACCORDINGLY. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD.DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE OF THE OPINION THAT THE ISSUE INVO LVED IN THE PRESENT CASE IS NO MORE RES INTEGRA AND IS COVERED BY THE DECISION OF THE HONBLE APEX COU RT IN THE CASE OF TOPMAN EXPORTS V/S CIT (SUPRA) WHERE IN IT HAS BEEN HELD THAT NOT THE ENTIRE AMOUNT RECEIVE D BY THE ASSESSEE ON SALE OF DEPB BUT THE SALE VALUE LESS THE FACE VALUE OF THE DEPB WILL REPRESENT PROF IT ON TRANSFER OF DEPB BY THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE AUTHORITATIVE PRONOUNCEMENT OF THE HONBLE SUPREME COURT WE DIRECT THE AO TO ITA NO.1749 AND 1750/MUM/2010 (AYS:2002-03 AND 2003-04) 5 RECOMPUTE THE DEDUCTION U/S 80HHC IN ACCORDANCE WITH THE AFORESAID JUDGMENT OF THE HONBLE APEX COU RT AND ACCORDINGLY THE ORDERS PASSED BY THE LD.CIT(A ) FOR THE ABOVE ASSESSMENT YEARS DO NOT CALL FOR AN Y INTERFERENCE. THE GROUNDS TAKEN BY THE REVENUE ARE THEREFORE REJECTED. 7. IN THE RESULT THE REVENUES APPEALS STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND FEB. 2 012. SD SD (G.E.VEERABHADRAPPA) (D.K.AGARWAL ) PRESIDENT JUDICIAL MEMBER MUMBAI DATED 22ND FEBRUARY 2012. SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT MUM BAI