Smt. Indu Gupta, New Delhi v. ACIT, New Delhi

ITA 3720/DEL/2008 | 2004-2005
Pronouncement Date: 01-09-2011 | Result: Allowed

Appeal Details

RSA Number 372020114 RSA 2008
Assessee PAN AAFPG4208D
Bench Delhi
Appeal Number ITA 3720/DEL/2008
Duration Of Justice 2 year(s) 8 month(s) 13 day(s)
Appellant Smt. Indu Gupta, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 01-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 01-09-2011
Date Of Final Hearing 01-09-2011
Next Hearing Date 01-09-2011
Assessment Year 2004-2005
Appeal Filed On 19-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI C.L.SETHI JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER I.T. A. NO.3720/DEL/2008 ASSESSMENT YEAR : 2004-05 SMT. INDU GUPTA ASSTT. COMMISSIONER INCOME-TAX PROP. KOTTAGE INDIA VS. CIRCLE 22(1) NEW DELHI. D-10/6 OKHLA INDUSTRIAL AREA PHASE-II NEW DELHI. PAN: AAFPG4208D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K.P.S. GUPTA FCA RESPONDENT BY: SMT. PRATIMA KA USHIK SR. DR. O R D E R PER C.L. SETHI JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 1 4.10.2008 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN 2 ASSESSMENT MADE UNDER SEC. 143(3) OF THE INCOME-TAX ACT 1961 (THE ACT) BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2004- 05. 2. THE ONLY ISSUE ARISES NOW FOR OUR CONSIDERATION IN THIS APPEAL RELATES TO DISALLOWANCE OF 90% OF DEPB RECEIPTS WHILE CALCU LATING DEDUCTION UNDER SECTION 80HHC OF THE ACT. THIS ISSUE STOOD DECIDED VIDE ORDER DATED 17 TH FEBRUARY 2010 PASSED BY THIS TRIBUNAL IN THE PRESE NT APPEAL WHEREBY THE TRIBUNAL SET ASIDE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO COMPUTE THE DEDUCTION UNDER SEC. 80HHC OF THE ACT A S PER THE DECISION OF INCOME-TAX APPELLATE TRIBUNAL SPECIAL BENCH IN THE CASE OF TOPMAN EXPORT VS. ITO 318 ITR (AT) 87. AGAINST THE AFORESAID OR DER DATED 17 TH FEBRUARY 2010 PASSED BY THIS TRIBUNAL THE REVENUE PREFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT OF DELHI. THE APPEAL FILED BY T HE DEPARTMENT WAS REGISTERED AS ITA NO.178 OF 2010 IN THE JURISDICTIO NAL HIGH COURT OF DELHI. THE HONBLE HIGH COURT VIDE DECISION DELIVERED ON 1 8-02-2011 RESTORED THE MATTER BACK TO THE FILE OF THE TRIBUNAL TO DECIDE T HE APPEAL ON MERIT AFTER TAKING INTO ACCOUNT THE FACTUAL POSITION IN ALL THE CASES. THE HONBLE HIGH COURTS ORDER RUNS AS UNDER:- 2. THE ORDERS PASSED BY THE TRIBUNAL IN ALL THESE CASES ARE BRIEF BECAUSE OF THE REASON THAT THE TRIBUNAL HAS S IMPLY FOLLOWED (WHICH IT WAS SUPPOSED TO) THE DECISION OF THE ITAT SPECIAL BENCH MUMBAI IN THE CASE OF TOPMAN EXPORT VS. ITO [ITA NO. 5769/MUM./2006 DECIDED ON DATED 11 TH AUGUST 2009]. BY THAT JUDGMENT THE SPECIAL BENCH OF THE TRIBUNAL HAS HELD 3 THAT THE FACE VALUE OF DEPB IS CHARGEABLE TO TAX U/ S 28(IIIB) AT THE TIME OF ACCRUAL OF INCOME THAT IS WHEN THE AP PLICATION FOR DEPB IS FILED WITH THE COMPETENT AUTHORITY PURSUANT TO EXPORTS AND PROFIT IN SALE OF DEPB REPRESENTING THE EXCESS OF SALE PROCEEDS OF DEPB OVER ITS FACE VALUE IS LIABLE TO B E CONSIDERED U/S 28(IIID) AT THE TIME OF ITS SALE. 3. THE REVENUE HAD FILED THE APPEAL IN THE HIGH COU RT ADJUDICATE AT BOMBAY AGAINST THE AFORESAID DECISION OF THE SPECIAL BENCH OF THE ITAT. THE BOMBAY HIGH COURT H AS REVERSED THE DECISION OF THE TRIBUNAL AND JUDGMENT OF THE BOMBAY HIGH COURT IS REPORTED AS COMMISSIONER OF IN COME TAX VS. KALPATARU COLOURS AND CHEMICALS 328 ITR 45 1. 4. SINCE THE TRIBUNAL HAD SIMPLY FOLLOWED SPECIAL B ENCH DECISION IN TOPMAN EXPORTS (SUPRA) WHICH STANDS OVE R RULED WE SET ASIDE THE ORDER PASSED BY THE TRIBUNAL IN AL L THESE CASES AND REMIT THE CASES BACK TO THE TRIBUNAL TO DECIDE THESE APPEALS ON MERITS AFTER TAKING INTO ACCOUNT FACTUAL POSITIO N IN ALL THESE CASES. 3. HENCE THE MATTER HAS BEEN AGAIN PLACED BEFORE T HE TRIBUNAL FOR FRESH DECISION. 4. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE ORDERS OF THE AUTHORITIES BELOW. 5. IN THIS CASE THE ASSESSING OFFICER DISALLOWED T HE ASSESSEES CLAIM OF DEDUCTION UNDER SEC. 80HHC IN RESPECT OF DEPB INCOM E BY OBSERVING THAT THE TWO CONDITIONS PROVIDED UNDER THE THIRD PROVISO APPENDED TO SEC. 80HHC OF THE ACT HAS NOT BEEN SATISFIED. THE AO F URTHER OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSEE WAS ASKED TO FURNISH RECOMPUTATION OF DEDUCTION U/S 80HHC IN VIE W OF THE AMENDMENT 4 MADE BY THE TAXATION LAWS (AMENDMENT) ACT 2005 BU T NO REPLY WAS SUBMITTED BY THE ASSESSEE. THE ORDER OF THE AO ON THIS POINT WAS CONFIRMED BY THE CIT(A). 6. ON AN APPEAL BEFORE THE TRIBUNAL THE ISSUE WAS DECIDED AFTER FOLLOWING THE DECISION OF SPECIAL BENCH OF TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (SUPRA). THE HONBLE HIGH COURT OF DELHI I N THE AFORESAID DECISION DATED 18-02-2011 HAS OBSERVED THAT THE BOMBAY HIGH COURT HAS REVERSED THE DECISION OF TRIBUNAL IN THE CASE OF TOPMAN EXPORTS VS. ITO AND THE SAID JUDGMENT OF THE BOMBAY HIGH COURT IS REPORTED AS CI T VS. KALPATARU COLOURS AND CHEMICALS 328 ITR 451 (BOM.). 7. AFTER HEARING BOTH THE PARTIES AND HAVING REGARD TO ALL THE FACTS THAT ALL THE DETAILS WITH REGARD TO DEPB RECEIPTS ARE NOT AV AILABLE ON RECORD AN UNDERSTANDING IS ARRIVED TO RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR HIS FRESH DECISION AFTER EXAMINING THE FACTS OF THE PRESENT CASE AND AFTER APPLYING THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS (SUPRA) OR OTHE RWISE AFTER APPLYING THE LATEST POSITION OF LAW ON THE ISSUE AT THE TIME OF PASSING THE ORDER BY THE AO. THE AO SHALL PROVIDE REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. THE ASSESSEE SHALL PRODUCE ALL THE DETAILS AND PART ICULARS WITH REGARD TO THE 5 DEPB RECEIPTS IN ORDER TO ENABLE THE AO TO DECIDE T HE ISSUE AS PER LAW. WE ORDER ACCORDINGLY. 8. IN THE RESULT THE PRESENT APPEAL FILED BY THE A SSESSEE ON THE AFORESAID ISSUE IS TREATED TO BE ALLOWED FOR A STATISTICAL PU RPOSE. 9. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 ST SEPTEMBER 2011 AFTER HEARING WAS OVER. SD/- SD/- (K.G. BANSAL) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 ST SEPTEMBER 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR ITAT.