MAHALAXMI CHEMICALS WORKS, MUMBAI v. ACIT CIT CIR 23(2), MUMBAI

ITA 4560/MUM/2010 | 2003-2004
Pronouncement Date: 23-09-2011 | Result: Allowed

Appeal Details

RSA Number 456019914 RSA 2010
Assessee PAN AAAFM1978M
Bench Mumbai
Appeal Number ITA 4560/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 21 day(s)
Appellant MAHALAXMI CHEMICALS WORKS, MUMBAI
Respondent ACIT CIT CIR 23(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 23-09-2011
Date Of Final Hearing 21-09-2011
Next Hearing Date 21-09-2011
Assessment Year 2003-2004
Appeal Filed On 02-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES H MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI V.DURGA RAO JM ITA NOS.4071 4073 & 4074/MUM/2010 : ASST.YEARS 200 0-2001 2003-2004 & 2004-2005 THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 23(2) MUMBAI. VS. M/S.MAHALAXMI CHEMICAL WORKS 3 MANGAL VIHAR 811 M.G.ROAD MULUND (WEST) MUMBAI 400 080. PAN :AAAFM1978M. (APPELLANT) (RESPONDENT) ITA NOS.4558 4560 & 4561/MUM/2010 : ASST.YEARS 200 0-2001 2003-2004 & 2004-2005 M/S.MAHALAXMI CHEMICAL WORKS 3 MANGAL VIHAR 811 M.G.ROAD MULUND (WEST) MUMBAI 400 080. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 23(2) MUMBAI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI GOLI SRINIWAS RAO (CIT-DR) ASSESSEE BY : DR.K.SHIVARAM DATE OF HEARING : 21.09.2011 DATE OF PRONOUNCEMENT :23.09.2011 O R D E R PER BENCH : THIS BATCH OF SIX APPEALS THREE BY THE ASSESSEE A ND EQUAL NUMBER BY THE REVENUE RELATES TO ASSESSMENT YEARS 2000-2001 20 03-2004 AND 2004-2005. SINCE THE ISSUES RAISED IN THESE APPEALS ARE COMMON WE ARE THEREFORE PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ASSESSMENT YEAR 2000-2001 2. THE FACTS OF THIS YEAR ARE THAT THE ORIGINAL ASS ESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 ON 24.03.2006. THE ASSESSEE CLAIM ED DEDUCTION U/S 80HHC OF RS.2 98 87 532 WHICH WAS ALLOWED BY THE ASSESSING O FFICER AT RS.2 80 84 692. AGAINST THIS ORDER THE ASSESSEE PREFERRED APPEAL BE FORE THE LEARNED FIRST APPELLATE AUTHORITY WHO ADJUDICATED ON THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ITA NOS.4071/MUM/2010 & ORS. M/S.MAHALAXMI CHEMICAL WORKS. 2 ALLOWING CERTAIN RELIEF. SUBSEQUENT TO THAT THE LEARNED CIT BY EXERCISING HIS POWER U/S 263 CAME TO HOLD THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 ON 24.03.2006 WAS ERRONEOUS AS WE LL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. RESULTANTLY THE ASSESSMENT ORDER WA S SET ASIDE AND THE ASSESSING OFFICER WAS DIRECTED TO RE-COMPUTE THE TOTAL INCOME . IT IS AN ADMITTED POSITION THAT NO APPEAL WAS PREFERRED BY THE ASSESSEE AGAINST THE ORDER U/S 263. THE ASSESSING OFFICER PURSUANT TO THE ORDER PASSED U/S 263 FRAM ED FRESH ASSESSMENT ON 21.07.2008. THE ASSESSEE CHALLENGED THE SAID ORDER BEFORE THE LEARNED CIT(A) WHO VIDE THE IMPUGNED ORDER DIRECTED THE ASSESSING OFFI CER TO COMPUTE THE DEDUCTION U/S 80HHC AS PER THE SPECIAL BENCH ORDER IN THE CAS E OF TOPMAN EXPORTS VS. ITO [(2009) 318 ITR (AT) 87 (MUMBAI) (SB)]. THE OTHER ISSUES RAISED BY THE ASSESSEE WERE NOT ADJUDICATED ON THE REASONING THAT THE ASSE SSEE HAVING ACCEPTED THE ORDER U/S 263 PASSED BY THE LEARNED CIT WAS NOT ENTITLED TO ASSAIL THE ASSESSMENT ORDER PASSED PURSUANT TO THE REVISIONAL ORDER IN THE APPE AL. 3. THE REVENUE IS AGGRIEVED AGAINST THE APPLICATION OF THE SPECIAL BENCH ORDER IN TOPMAN EXPORTS (SUPRA) ON THE ISSUE OF SALE OF DEPB WHEREAS THE ASSESSEE IS AGGRIEVED TO THE EXTENT OF NON-ADJUDICATION BY THE LEARNED CIT(A) ON CERTAIN OTHER ISSUES FROM THE FRESH ASSESSMENT ORDER WHICH WERE RAISED BY THE ASSESSEE DURING THE FIRST APPEAL. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS SEEN THAT THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 263 COULD NOT HAVE BEEN HELD TO BE NON-APPEALABLE SIMPLY ON THE G ROUND THAT THE ORDER U/S 263 WAS NOT CHALLENGED BY THE ASSESSEE. IF AN ACTION IS TAKEN U/S 263 THE ASSESSEE MAY CHALLENGE THE VERY ORDER U/S 263 AND / OR THE ORDER PASSED U/S 143(3) PURSUANT TO SECTION 263 ORDER. THERE CANNOT BE ANY FETTERS ON T HE POWERS OF THE LEARNED CIT(A) IN DISPOSING OFF THE APPEAL PREFERRED BY THE ASSESS EE AGAINST THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 263 WHEN THE ASSESSEE DOE S NOT CHOSE TO FILE APPEAL AGAINST THE ORDER U/S 263. TO THIS EXTENT WE OVERT URN THE IMPUGNED ORDER AND REMIT ITA NOS.4071/MUM/2010 & ORS. M/S.MAHALAXMI CHEMICAL WORKS. 3 THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR TA KING A FRESH DECISION ON THE OTHER GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL. INSOF AR AS THE REVENUES APPEAL BEFORE US IS CONCERNED THE FINDING OF THE LEARNED CIT(A) IN DIRECTING THE A.O. TO APPLY THE SPECIAL BENCH ORDER IN TOPMAN EXPORTS (SUPRA) IS REQUIRED TO BE SET ASIDE IN VIEW OF THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS [(2010) 328 ITR 4 51 (BOM.)]. 5. TO SUM UP THE IMPUGNED ORDER IS SET AS IDE AND MATTER IS RESTORED TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION TO DECIDE TH E APPEAL OF THE ASSESSEE AFRESH IN THE LIGHT OF THE JUDGEMENT OF THE HONBLE JURISDICT IONAL HIGH COURT IN KALPATARU COLOURS & CHEMICALS (SUPRA) AND ALSO DISPOSE OFF THE OTHER GROUNDS RAISED BY T HE ASSESSEE ON MERITS AS PER LAW AFTER ALLOWING A REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ASSESSMENT YEAR 2003-2004 7. THESE TWO CROSS APPEALS - ONE BY THE ASSESSEE A ND THE OTHER BY THE REVENUE ARISE OUT OF THE ORDER PASSED BY THE LEARNED CIT(A) ON 25.02.2010 IN RELATION TO THE ASSESSMENT YEAR 2003-2004. THE ASSESSMENT ORDER IN THIS CASE WAS PASSED U/S 143(3) R.W.S. 263 AND THE LEARNED CIT(A) VIDE THE I MPUGNED ORDER HAS TAKEN SIMILAR VIEW AS WAS TAKEN IN ASSESSMENT YEAR 2000-2 001. THE GROUNDS RAISED BY BOTH THE SIDES ARE ALSO ON SAME LINES AS WERE THERE IN ASSESSMENT YEAR 2000-2001. FOLLOWING OUR ORDER FOR ASSESSMENT YEAR 2000-2001 WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF THE LEA RNED CIT(A) FOR DISPOSAL OF THE ASSESSEES APPEAL FILED BEFORE HIM AFRESH AS PER LA W AND IN ACCORDANCE WITH OUR ABOVE NOTED DIRECTIONS. 8. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.4071/MUM/2010 & ORS. M/S.MAHALAXMI CHEMICAL WORKS. 4 ASSESSMENT YEAR 2004-2005 9. THESE TWO CROSS APPEALS ARISE OUT OF THE ORDER P ASSED BY THE LEARNED CIT(A) ON 26.02.2010. THE REVENUE IS AGGRIEVED AGAINST THE GRANTING OF DEDUCTION U/S 80HHC ON DEPB IN ACCORDANCE WITH THE SPECIAL BENCH ORDER IN THE CASE OF TOPMAN EXPORTS (SUPRA) . ON THE OTHER HAND THE ASSESSEE IS AGGRIEVED AGAI NST SOME OTHER ASPECTS OF DEDUCTION U/S 80HHC AND CERTAIN OT HER PETTY ISSUES. 10. THE LEARNED DEPARTMENTAL REPRESENTATIVE STATED THAT ALL THE ISSUES TAKEN UP BY THE ASSESSEE IN ITS APPEAL HAVE ALREADY BEEN CON SIDERED AND DECIDED BY THE TRIBUNAL IN EARLIER YEAR. IN SUPPORT OF ITS APPEAL THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE JUDGEMENT OF THE HONB LE HIGH COURT IN KALPATARU COLOURS & CHEMICALS (SUPRA). NO OBJECTION WAS TAKEN BY THE LEARNED A.R. TO THE FACTS STATED BY THE LEARNED DEPARTMENTAL REPRESENTA TIVE. IN VIEW OF THESE RIVAL BUT COMMON SUBMISSIONS WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE OF A.O. FOR A FRESH DECISION. INSOFAR AS THE Q UESTION OF COMPUTATION OF DEDUCTION U/S 80HHC ON THE AMOUNT OF DEPB IS CONCER NED HE IS DIRECTED TO FOLLOW THE JUDGEMENT OF THE JURISDICTIONAL HIGH COU RT IN KALPATARU COLOURS & CHEMICALS (SUPRA). ON THE ISSUES RAISED BY THE ASSESSEE THE A.O. IS DIRECTED TO FOLLOW THE ORDER PASSED BY THE TRIBUNAL IN ASSESSEE S OWN CASE IN EARLIER YEAR. 11. IN THE RESULT THE BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23 RD DAY OF SEPTEMBER 2011. SD/- SD/- (V.DURGA RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 23 RD SEPTEMBER 2011. DEVDAS* ITA NOS.4071/MUM/2010 & ORS. M/S.MAHALAXMI CHEMICAL WORKS. 5 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXIII MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.