M/s. Murlidhar Ratanlal Exports Ltd., Kolkata v. A.C.I.T., CC-XXVII, Kol, Kolkata

ITA 2100/KOL/2009 | 2003-2004
Pronouncement Date: 31-07-2013

Appeal Details

RSA Number 210023514 RSA 2009
Assessee PAN AABCM8371Q
Bench Kolkata
Appeal Number ITA 2100/KOL/2009
Duration Of Justice 3 year(s) 7 month(s) 21 day(s)
Appellant M/s. Murlidhar Ratanlal Exports Ltd., Kolkata
Respondent A.C.I.T., CC-XXVII, Kol, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2013
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 31-07-2013
Date Of Final Hearing 20-05-2010
Next Hearing Date 20-05-2010
Assessment Year 2003-2004
Appeal Filed On 10-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.2099 AND 2100/KOL/2009 ASSESSMENT YEARS:2002-03 & 2003-04 M/S. MURLIDHAR RATANLAL 15B HEMANTA BASU SARANI KOLKATA 7001 [ PAN NO.AABCM 8371Q ] / V/S . ACIT CENTRAL CIRCLE- XXVII PODDAR COURT 1B RABINDRA SARANI KOLKATA 700 001 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI RAJEEVA KUMAR AR /BY REVENUE SHRI D.K. SANOWAL SR-DR /DATE OF HEARING 12-06-2013 ! /DATE OF PRONOUNCEMENT 31-07-2013 ' ' ' ' /O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- BOTH THESE APPEALS FILED BY ASSESSEE ARE ARISING O UT OF DIFFERENT ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-CENTRAL-II KO LKATA IN APPEAL NOS.43 & 30.CC-XXVII/CIT(A)C-II/06-07 DATED 07-11-2006 AND 2 8-04-2006 RESPECTIVELY. ASSESSMENTS WERE FRAMED BY ACIT CENTRAL CIRCLE-XXI I KOLKATA U/S 143(3) OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDERS DATED 31-03- 2005/2006 FOR THE ASSESSMENT YEARS 2002-03 AND 2003 -04. 2. AT THE OUTSET IT IS SEEN THAT THESE TWO APPEALS FOR AYS 2002-03 AND 2003-04 ARE BARRED BY LIMITATION BY 1024 AND 1012 DAYS RESP ECTIVELY. WE FIND THAT ASSESSEE HAS ITA NO.2099 & 2100/KOL/2009 A.YS. 02-03 & 03-04 M/S. MURLIDHAR RATANLAL V. ACIT CC-XXVII KOL PAGE 2 FILED IDENTICAL PETITIONS FOR CONDONATION OF DELAY WITH AFFIDAVIT. THE RELEVANT CONDONATION PETITION IN ITA NO.2099/KOL/2009 FOR AY 2002-03 READS AS UNDER:- IN THIS CASE RETURN OF INCOME WAS FIELD SHOWING N IL TOTAL INCOME AND TAX WAS PAID U/S. 115JB OF THE INCOME TAX ACT ON BOOK PROFIT. AS SESSMENT WAS COMPLETED U/S. 143(3) ON 31.03.05 FOR A TOTAL INCOME AT NIL. BUT F OR THE PURPOSE OF COMPUTATION OF TAX U/S.115JB NET PROFIT WAS REDUCED BY DEDUCTION U/S. 80HHC AND DIVIDEND U/S. 10(33) OF THE INCOME TAX ACT. IN COMPUTING THE DEDU CTION U/S. 80HHC IT WAS HELD THAT THE INCOME DISCLOSED UNDER THE HEAD DEPB (DUTY ENTI TLEMENT PASS BOOK) AMOUNTING TO RS.224 39 523/- IS NOT TO BE CONSIDERED FOR CALC ULATION OF DEDUCTION U/S. 80HHC. THIS WAS DONE IN VIEW OF CBDTS CIRCULAR VIDE BOARD S F.NO.153/93/2004 TPL DT. 8.09.04. IN VIEW OF THE ABOVE CIRCULAR THE DEDUCTI ON U/S. 8HHC WAS REDUCED FROM RS.49 26 850/- TO RS.46 02 032/-. AGAINST THIS ORDE R OF THE AO AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A)-C-II KOL. IN THE S AID APPEAL THE LD. CIT(A)-C- II KOL REJECTED THE PRAYER ASKING FOR CONSIDERATIO N OF DEPB CREDIT IN CALCULATION OF DEDUCTION U/S. 80HHC. THE ASSESSEE HAD NOT PREFERRED APPEAL AGAINST THE S AID ORDER AS ADVISED BY ITS CHARTERED ACCOUNTANT THAT THE APPEAL WOULD BE YIELD ING NO BENEFIT WORTH AND IT WILL BE WASTE OF LITIGATION COST. ON SUCH ADVICE NO APPE AL WAS FILED. BUT IN VIEW OF RECENT ITA NO. 5769/MUM/2006 FOR THE ASST. YEAR 20002-03 I N THE CASE OF M/S. TOPMAN EXPORTS & ITA NO. 5651/MUM/2006 FOR ASST. YEAR 2003 -04 IN CASE OF M/S. KALPATARU COLOURS & CHEMICALS THE HONBLE MEMBERS OF THE APP ELLATE TRIBUNAL SPL. BENCH. IN VIEW OF THE ABOVE DECISION WHICH HAS COME TO OU R KNOWLEDGE THROUGH A COMMUNICATION FROM FEDERATION OF INDIAN EXPORT ORGA NIZATION IT NOW SEEMS OUR CASE IS FULLY COVERED BY HONBLE ITATS SPECIAL BENCH M UMBAI. IF SUCH RELIEF IS AVAILABLE TO US IT WOULD HAVE EFFECT OVER THE OTHER YEARS WH ERE DEDUCTION ONUS US. 80HHC HAS BEEN REVISED CAUSING HEAVY TAX BURDEN ON US. IN THE CIRCUMSTANCES REFERRED TO ABOVE IT IS THE REFORE PRAYED THAT THE DELAY OF 1024 DAYS MAY KINDLY BE CONDONED AND WE MAY KINDLY BE GI VEN AN OPPORTUNITY OF MAKING SUBMISSION BEFORE YOUR HONOUR TO PRAY FOR JUSTICE. EVEN IN THE AFFIDAVIT THE ASSESSEE HAS STATED THE FOLLOWING REASONS FOR DELAY WHICH IS REPRODUCED BELOW:- 1) THAT I AM PRACTICING AS A CHARTERED ACCOUNTANT FOR THE PAST SEVERAL YEARS UNDER THE NAME & STYLE OF M/S. A.K. TULSYAN & ASSOCIATES. 2) THAT I AM A TAX CONSULTANT OF M/S. MURLIDHAR RAT ANLAL EXPORTS LTD. HAVING ITS REGISTERED OFFICE AT 15B HEMANTA BASU SARANI KOLKA TA-700001 FOR THE PAST SEVERAL YEARS. 3) THAT ON THE RECEIPT OF CIT(A)S ORDER FOR ASST. Y EARS 2002-03 & 2003-04 MR. AJAY KUMAR KAJARIA DIRECTOR OF M/S. MURLIDHAR RATANLAL EXPORTS LTD. DISCUSSED WITH ME AND SOUGHT MY OPINION WHETHER THEY SHOULD FILE SECO ND APPEAL AGAINST THE LD. CIT(A)S ORDER BEFORE THE HONBLE ITAT. ITA NO.2099 & 2100/KOL/2009 A.YS. 02-03 & 03-04 M/S. MURLIDHAR RATANLAL V. ACIT CC-XXVII KOL PAGE 3 4) THAT I EXAMINED THE PROVISIONS OF DEDUCTION U/S. 80HHC OF THE I. TAX ACT ON THE PROFIT ON SALE OF DEPB LICENSE AND THE EFFECT OF TH E AMENDED TAX PROVISION 2005 W.E.F. 1.4.2001. I WRONGLY INTERPRETED THAT THE ORDER OF THE LD. CIT (A)-C-II KOLKATA IS CORRECT. I BY MISTAKE AT THAT TIME COULD NOT BE ABLE TO NOTICE T HE DIFFERENCE BETWEEN SALE PROCEED OF DEPB LICENSE AND PROFIT ON SALE OF DEPB LICENSE. SU CH IS THE MISTAKE OF INTERPRETATION OF MEANING OF PROFIT AS GIVEN IN THE INCOME TAX ACT. 5) BASED ON MY ABOVE MISTAKEN INTERPRETATION OF THE PROVISION OF INCOME TAX ACT I WRONGLY ADVISED M/S. MURLIDHAR RATANLAL EXPORTS LTD . NOT TO FILE SECOND APPEAL AGAINST THE ORDER OF LD.CIT(A)-C-II KOL BEFORE TH E HONBLE ITAT KOLKATA. 6) THAT M/S. MURLIDHAR RATANLAL EXPORTS LTD. FOLLO WED MY ADVICE AND DIDNT FILE ANY APPEAL BEFORE THE HONBLE ITAT KOLKATA FOR THE ASS T. YEAR 2002-03 & 2003-04. 7) THAT WHEN M/S. MU9RLIDHAR RATANLAL EXPORTS LTD. RECEIVED A CIRCULAR DATED 20 TH AUGUST 2009 OF FEDERATION OF INDIAN EXPORT ORGANIS ATION (FIEO) ALONG WITH THE COPY OF HONBLE ITAT SPECIAL BENCH MUMBAIS ORDER IN THE MATTER OF M/S. TOPMAN EXPORTS & M/S. KOLPATARU COLOUR & CHEMICALS ON THE ISSUE OF DEDUCTION U/S. 80HHC ON THE PROFIT ON SALE OF DEPB LICENSE THEY BROUGHT THE SAME INTO MY KNOWLEDGE. ON PERUSAL OF THE SAID ORDER OF HONBLE ITAT SPECIAL BENCH MUMBAI AND AFTER CONSULTATION WITH THE SENIOR COUNSELS AT KOLKATA I REALIZED MY MISTAKE ABOUT INTERPRETATION OF THE MEANING OF PROFIT ON SALE OF DEPB LICENSE. 8) THAT MY MISTAKE INTERPRETATION OF LAW RESULTED I N NON-FIILNG OF THE APPEAL BY MY CLIENT M/S. MURLIDHAR RATANLAL EXPORTS LTD. BEFORE THE HONBLE TRIBUNAL FOR THE ASST. YEARS 2002-03 & 2003-04. 9) THAT M/S. MURLIDHAR RATANLAL EXPORTS LTD. HAS N O REMEDY AVAILABLE TO IT OTHER THAN FILING APPEAL BEFORE THE HONBLE ITAT WITH APP LICATION FOR THE CONDONATION OF DELAY IN FILING OF THE APPEAL. I ACCEPT MY MORAL RE SPONSIBILITY FOR WHATEVER DELAY WAS THERE IN FILING APPEAL BEFORE THE HONBLE ITAT BY M /S. MURLIDHAR RATANLAL EXPORTS LTD. AS THE SAME IS DUE TO MY MISTAKE IN INTERPRET ATION OF THE PROVISION AND MEANING OF LAW. 10) THAT MY CLIENT M/S. MURLIDHAR RATANLAL EXPORTS LTD. SHALL SUFFER IRREPARABLE LOSS IF THE DELAY IN FILING OF APPEAL IS NOT CONDONED BY THIS HONBLE TRIBUNAL FOR THE ASST. YEARS 2002-03 & 2003-04. THIS AFFIDAVIT WAS SWORN BY THE DIRECTOR OF M/S. MU RLIDHAR RATANLAL EXPORTS LTD. SHRI AJAY KUMAR KAJARIA. DURING THE COURSE OF HEARING L D. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ORDER OF CIT(A) FOR AY 2002-03 WAS RECEIVED ON 03-01-2007AND FOR AY 2003-04 WAS RECEIVED ON 22-12-2006. THE DUE DATES FOR FILING OF APPEAL BEFORE THE TRIBUNAL WAS ON 02-03-2007 AND 20-02-2007 BUT A CTUALLY APPEALS IN BOTH YEARS ITA NO.2099 & 2100/KOL/2009 A.YS. 02-03 & 03-04 M/S. MURLIDHAR RATANLAL V. ACIT CC-XXVII KOL PAGE 4 WERE FILED ON 10-12-2009. IN SUCH CIRCUMSTANCES AND REASONS STATED ABOVE LD. COUNSEL FOR THE ASSESSEE PRAYED FOR CONDONATION OF DELAY. 3. ON THE OTHER HAND LD. SR-DR OF THE REVENUE OBJE CTED TO CONDONATION OF DELAY AND STATED THAT THIS IS A VERY LONG DELAY AND NO SU FFICIENT CAUSE IS ADVANCED BY THE ASSESSEE. LD. DR POINTED OUT FROM THE AFFIDAVIT THA T ADVICE FROM THE LD. COUNSEL WAS RECEIVED ON 20-08-2009 AND FROM 20-08-2009 NO STEPS WAS TAKEN BY ASSESSEE FOR FILING OF APPEAL TILL 10-12-2009. ACCORDING TO LD. DR THE ASSESSEE FOR ALMOST FOUR MONTHS KEPT SILENT AND NO REASON WHATSOEVER IS STAT ED FOR THE ABOVE DELAY. LD. DR RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. JBM INDUSTRIES LIMITED (2010) IN ITA NO. 372/2010 WHEREIN THE HONBLE DE LHI HIGH COURT HAS NOT CONDONED THE DELAY OF 517 DAYS. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ISSUE ON CONDONATION OF DELAY IS COVERED BY THE DECISION OF COORDINATE BENCH IN THE CASE OF M/S. A. V. THOMAS L EATHER & ALLIED PRODUCTS PVT. LTD. VS. ACIT ITA NOS. 450 TO 454(MDS)/2012 FOR A YS 2000-01 TO 2004-05 DATED 03.01.2013 AND ON MERITS ISSUE IS IDENTICAL IN THES E APPEALS WHEREIN THE TRIBUNAL VIDE PARAS7 8 11 AND 12 HAS HELD AS UNDER: 7. WE HEARD BOTH SIDES IN DETAIL. ON GOING THROUGH THE AVERMENTS MADE BY THE ASSESSEE-COMPANY IN THE AFFIDAVIT FILED BEFORE US WE FIND THAT THE ASSESSEE WAS NOT GUILTY OF NEGLIGENCE OR SUCH ATTRIBUTES IN NOT FILING THE APPEALS BEFORE THE TRIBUNAL IN TIME. IN FACT THE ASSESSEE-COMPANY HAS EARNESTLY MADE A FOLLOW-UP OF ITS CLAIM OF DEDUCTION UNDER SECTION 8OHHC IN RE SPECT OF THE DEPB. THIS IS CLEAR FROM THE FACT THAT THE ASSESSEE HAS CLAIMED S UCH DEDUCTION IN THE LIGHT OF THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL MUMBAI SPECIAL BENCH RENDERED IN THE CASE OF TOPMAN EXPORTS VS. ITO AND KALPATARU COLOURS AND CHEMICALS VS. ADDL. CIT 318 ITR (AT) 87 (MUMBAI) ( SB). BY THE TIME THE COMMISSIONER OF INCOME-TAX(APPEALS) HAD DISMISSED T HE ASSESSEES CLAIM THE HONBLE BOMBAY HIGH COURT RENDERED ITS JUDGMENT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS 328 ITR 451 WHERE IN THE HONBLE HIGH COURT HAS REVERSED THE ABOVE STATED DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL MUMBAI SPECIAL BENCH. THEREAFTER THE HON BLE SUPREME COURT REVERSED THE JUDGMENT OF THE HONBLE BOMBAY HIGH CO URT ON THE SUBJECT AND DECLARED THE LAW ON THE SUBJECT IN THEIR JUDGMENT R ENDERED BY THEIR LORDSHIPS ITA NO.2099 & 2100/KOL/2009 A.YS. 02-03 & 03-04 M/S. MURLIDHAR RATANLAL V. ACIT CC-XXVII KOL PAGE 5 N THE CASE OF TOPMAN EXPORTS VS. CIT 342 ITR 49. ONCE AGAIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. 8. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE F IND THAT IT IS ONLY JUST AND PROPER TO CONDONE THE DELAY CAUSED IN FILING THE AP PEALS. ACCORDINGLY THE DELAY IN FILING THESE APPEALS BEFORE THE TRIBUNAL IS CONDONED AND THE APPEALS ARE ADMITTED ON THE ROLLS OF THE TRIBUNAL FOR HEARI NG AND DISPOSAL. 11. THEREFORE WE FIND THAT THE QUANTUM OF DEDUCTI ON AVAILABLE TO THE ASSESSEE UNDER SECTION 8OHHC IN THE LIGHT OF DEPB I S TO BE RECOMPUTED BY THE ASSESSING AUTHORITY IN ACCORDANCE WITH THE JUDGMENT OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF TOPMAN EXPORTS VS. CI T 342 ITR 49. THE ASSESSEE IS ENTITLED FOR THE BENEFIT TO THE EXTENT EXPLAINED BY THE HONBLE SUPREME COURT. 12. THEREFORE ALL THESE FILES ARE REMITTED BACK TO THE ASSESSING OFFICER FOR RECOMPUTATION OF QUANTUM OF DEDUCTION AVAILABLE TO THE ASSESSEE UNDER SECTION 8OHHC IN ACCORDANCE WITH LAW AND IN THE LIGHT OF TH E JUDGMENT OF THE HONBLE SUPREME COURT N THE CASE OF TOPMAN EXPORTS VS. CIT 342 ITR 49. SINCE THE ISSUE IS COVERED BY THE DECISION IN THE C ASE OF M/S. A. V. THOMAS LEATHER & ALLIED PRODUCTS PVT. LTD. SUPRA AND RESPECTFULLY F OLLOWING THE AFORESAID DECISION WE CONDONE DELAY AND ADMIT THESE APPEALS. ON MERITS B OTH THE FILES ARE REMITTED TO AO FOR RECOMPUTATION OF QUANTUM OF DEDUCTION U/S. 80HH C OF THE ACT IN THE LIGHT OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F TOPMAN EXPORTS VS. CIT 342 ITR 49. 5. IN THE RESULT BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.07.201 3 SD/- 26.07.2013 SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA PRONOUNCED BY *DKP SD/- (PRAMOD KUMAR) SD/- (MAHAVIR SINGH) #$% - AM 31/7/13 JM 31/7/13 ITA NO.2099 & 2100/KOL/2009 A.YS. 02-03 & 03-04 M/S. MURLIDHAR RATANLAL V. ACIT CC-XXVII KOL PAGE 6 ' ' ' ' &&' &&' &&' &&' (' (' (' (' / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $$&) * / CONCERNED CIT 4. * - / CIT (A) 5. '+ &&&) &)! / DR ITAT KOLKATA 6. -. /0 / GUARD FILE. BY ORD ER/ ' 1 / 2 $ &)!