DCIT, New Delhi v. M/s Kavitra Silk Sarees,, New Delhi

ITA 2474/DEL/2010 | 2001-2002
Pronouncement Date: 06-01-2011 | Result: Allowed

Appeal Details

RSA Number 247420114 RSA 2010
Assessee PAN AAFFK5650F
Bench Delhi
Appeal Number ITA 2474/DEL/2010
Duration Of Justice 7 month(s) 11 day(s)
Appellant DCIT, New Delhi
Respondent M/s Kavitra Silk Sarees,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 06-01-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 06-01-2011
Date Of Final Hearing 03-01-2011
Next Hearing Date 03-01-2011
Assessment Year 2001-2002
Appeal Filed On 25-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `D: NEW DELHI BEFORE SHRI C.L.SETHI JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER I.T. A. NO.2474/DEL/2010 ASSESSMENT YEAR: 2001-02 DY. COMMISSIONER OF INCOME-TAX M/S. KAVITRA SILK SAREES CIRCLE 35(1) NEW DELHI. VS. 145 RAM VIHAR DELH I. PAN: AAFFK5650F (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K. RAVI RAMA CHANDARAN SR. DR. RESPONDENT BY: MS. PRIYANKA MAHAJAN CA. O R D E R PER C.L. SETHI JUDICIAL MEMBER: THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 2 ND DECEMBER 2009 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) FOR THE ASSESSMENT YEAR 2001-02. 2. THE ONLY GROUND RAISED BY THE REVENUE IN THIS AP PEAL IS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT(A) HAS ERRED IN DIRECTING THE AO TO COMPUTE THE DEDUCTION U/S 80HHC BY TREATING DEPB CREDIT OF RS.37 31 039/- AS CONTAI NED BY SECTION 28(IIIB) INSTEAD OF SECTION 28(IV) AS ADOPT ED BY THE AO. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING MS. PRIYANKA MAHAJAN CA APPEARING FOR THE ASSESSEE REQUESTED FOR ADJOU RNMENT ON THE GROUND 2 THAT SENIOR COUNSEL IS AWAY FROM DELHI AND IS NOT I N A POSITION TO APPEAR BEFORE THE BENCH TODAY. THE SIMILAR REASONS WERE A LSO SHOWN ON 03.01.2011 WHEN THIS APPEAL WAS FIXED FOR HEARING. ON 03.01.2 011 THE ASSESSEES REQUEST FOR ADJOURNMENT WAS ACCEPTED AND THE MATTER WAS ADJOURNED TO 06.01.2011 WITH AN OBSERVATION THAT THE ISSUE INVOL VED IN THIS APPEAL IS NOW SQUARELY COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT REFERRED TO HEREINAFTER. HAVING REGARD TO THE POINT THAT THE I SSUE IS COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT REFERRED TO H EREINAFTER AND IN THE LIGHT OF THE FACT THAT ALREADY AN ADJOURNMENT WAS G RANTED ON 03.01.2011 ASKING THE ASSESSEE TO APPEAR ON 06.01.2011 WE ARE NOT INCLINED TO GRANT THE ADJOURNMENT. HENCE REQUEST FOR ADJOURNMENT MADE B Y THE LEARNED AR FOR THE ASSESSEE WAS REJECTED. WE THEREFORE PROCEEDED TO DISPOSE OF THIS APPEAL EX PARTE AGAINST THE ASSESSEE AFTER HEARING THE LEA RNED DR. 4. IN THIS CASE THE LEARNED CIT(A) HAS DECIDED THE ISSUE BY DETERMINING AND CONCLUDING AS UNDER:- 6. DETERMINATION: I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AS WELL AS THE FINDINGS OF THE ASSESS ING OFFICER. I AM UNABLE TO AGREE WITH THE CONCLUSIONS ARRIVED AT BY THE ASSESSING OFFICER. 6.1 THE ONLY GROUND OF DISPUTE ON WHICH THE APPELLA NT IS IN APPEAL IS WITH REGARD TO TREATMENT TO BE GIVEN TO D EPB CREDIT 3 IN THE MANNER OF CALCULATION OF DEDUCTION UNDER SEC TION THE AMENDED PROVISIONS OF SECTION 80HHC. 6.2 THE APPELLANT DURING THE COURSE OF APPEAL RELIE D UPON THE DECISION OF ITAT DELHI IN THE CASE OF P&G ENTERPRI SES (93 ITD 138). 6.3 I AM OF THE VIEW THAT THE PRESENT CASE IS SQUAR ELY COVERED BY THE RATIO OF THE JUDGMENT CITED ABOVE & ACCORDIN GLY I DIRECT THE ASSESSING OFFICER TO COMPUTE THE DEDUCTION U/S 80HHC BY TREATING DEPB CREDIT OF RS.37 31 039/- AS CONTAINED BY SECTION 28(IIIB) INSTEAD OF SECTION 28(IV) AS ADOPTED BY TH E ASSESSING OFFICER. 5. IN THE COURSE OF HEARING OF THIS APPEAL IT HAS BEEN POINTED OUT THAT THIS ISSUE HAS SINCE BEEN ELABORATELY CONSIDERED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CH EMICALS (2010) 328 ITR 451 (BOM.). THIS DECISION OF HONBLE BOMBAY HI GH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS (SUPRA) HA S BEEN FOLLOWED BY THE SAME HIGH COURT IN THE LATER DECISION IN THE CASE O F CIT VS. KING METAL WORKS (2010) 329 ITR 426 (BOM.). BE IT NOTED HERE THAT THE DECISION OF SPECIAL BENCH OF INCOME-TAX APPELLATE TRIBUNAL IN T HE CASE OF KALPATARU COLOURS & CHEMICALS VS. ADDL. CIT (2009) 318 ITR (A T) 87 (MUMBAI) (SB) DECIDED ALONG WITH THE CASE OF OTHER ASSESSEE NAMELY TOPMAN EXPORTS VS. ITO HAS BEEN REVERSED BY THE HONBLE BOMBAY HI GH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS (SUPRA). IN THE LIGHT OF THESE FACTS IT IS THUS CLEAR THAT THE ISSUE IS NOW TO BE DECIDED IN THE LIGHT OF THE 4 DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS. KALPATARU COLOURS & CHEMICALS (SUPRA) WHICH HAS BEEN FOLLOWE D IN A LATER DECISION IN THE CASE OF CIT VS. KING METAL WORKS (SUPRA). THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE ENTIRE RECEIPTS OF DEPB ARE ASSESSABLE UNDER SEC. 28(IIID) OF THE ACT. WE THEREFORE RESTORE THE MAT TER BACK TO THE FILE OF THE ASSESSING OFFICER FOR HIS FRESH CONSIDERATION IN TH E LIGHT OF THE VIEW TAKEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KALPAT ARU COLOURS & CHEMICALS (SUPRA) AFTER PROVIDING REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 6 TH JANUARY 2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (K.G. BANSAL) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH JANUARY 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR ITAT.