Asstt. C.I.T.-1, Aligarh v. M/s Raghunath Exports, Aligarh

MA 1/AGR/2011 | misc
Pronouncement Date: 10-03-2011 | Result: Dismissed

Appeal Details

RSA Number 120324 RSA 2011
Bench Agra
Appeal Number MA 1/AGR/2011
Duration Of Justice 2 month(s) 17 day(s)
Appellant Asstt. C.I.T.-1, Aligarh
Respondent M/s Raghunath Exports, Aligarh
Appeal Type Miscellaneous Application
Pronouncement Date 10-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 10-03-2011
Date Of Final Hearing 25-02-2011
Next Hearing Date 25-02-2011
Assessment Year misc
Appeal Filed On 24-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER M.A. NOS. 30 & 31/AGRA/2010 (IN ITA NO. 151 & 152/AGRA/2009) ASSTT. YEAR : 2003-04 AND 2004-05 M/S. RAGHUNATH EXPORTS VS. ASSTT. C.I.T. I GOPAL GANJ SARAI LAVARIA ALIGARAH. ALIGARH. M.A. NO. 01/AGRA/2011 (IN ITA NO. 151 &N 152/AGRA/2009) ASSTT. YEAR : 2003-04 AND 2004-05 ASSTT. C.I.T.-I VS. M/S. RAGHUNATH EXPORTS ALIGARH. GOPAL GANJ SARAI LAVARIA ALIGARH. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI PANKAJ GARGH ADVOCATE FOR REVENUE : SHRI VINOD KUMAR JR. D.R. ORDER PER P.K. BANSAL A.M. : THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATIONS FOR SEEKING RECTIFICATION IN THE ORDER OF THIS TRIBUNAL PASSED IN ASSESSEES APPEALS NOS. 151 & 152/AGRA/2009 DATED 17.09.2010. THE AVERMENTS MADE IN THE APPLICATIONS ARE THAT TRIBUNA L WHILE DECIDING THE ISSUE INVOLVED IN GROUNDS NOS. 3 & 4 RELATING TO THE QUESTION WHETHER DEPB RECEIVED BY ASSESSEE IS EXIGIBLE FOR DEDUCTION U/S. 80IB OF THE ACT OR NOT HAS BY OVERS IGHT ALSO DECIDED THE ISSUE OF DUTY DRAW BACK IN PARA 4 OF THE IMPUGNED ORDER AGAINST THE ASSESSEE DESPITE NO SUCH GROUND RELATING TO DUTY DRAW BACK WAS TAKEN IN THE MEMORANDUM OF APPEA L. IT WAS ALSO AVERRED THAT THIS MISTAKE BEING APPARENT ON THE FACE OF RECORD NEEDS TO BE R ECTIFIED IN THE INTEREST OF JUSTICE. 2 2. ON THE OTHER HAND THE DEPARTMENT HAS ALSO FILED A MISCELLANEOUS APPLICATION FOR SEEKING RECTIFICATION IN AND CLARIFICATION OF THE FINDING G IVEN IN PARA 4 OF THE IMPUGNED ORDER. IT IS STATED THAT THE LEARNED CIT(A) HAS CONCLUDED THAT DUTY DRA WBACK IS EXIGIBLE FOR DEDUCTION U/S. 80IB AND THE TRIBUNAL HAS RELIED UPON THE DECISION OF HONBL E SUPREME COURT IN THE CASE OF LIBERTY INDIA VS. CIT 317 ITR 218(SC) WHEREIN IT HAS BEEN HELD T HAT PROFIT DERIVED BY WAY OF DEPB/DUTY DRAW BACK DO NOT FALL WITHIN THE EXPRESSION PROFIT DERIVED FROM INDUSTRIAL UNDERTAKING UNDER SECTION 80IB. HOWEVER THE FINDING OF TRIBUNAL THAT THE ORDER OF THE CIT(A) IS CONFIRMED ON THIS ISSUE IS CONFUSING AND NOT IN CONSONANCE WITH THE D ECISION OF HONBLE SUPREME COURT (SUPRA) FOR THE REASON THAT THE CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE ON THE ISSUE OF DEDUCTION U/S. 80IB ON DUTY DRAW BACK RECEIVED BY ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. IT APPEARS THAT BOTH THE PARTIES HAVE MISREAD THE FINDING GIVEN BY TRIBUNAL IN PARA 4 OF THE IMPUGNED ORDER. IN PARA 4 OF THE IMPUGNED ORDER THE TRIBUNAL HAS QUOT ED THE OBSERVATIONS OF THE HONBLE SUPREME COURT GIVEN IN THE CASE OF LIBERTY INDIA VS. CIT (S UPRA) BUT THERE BEING NO APPEAL BY THE REVENUE THE TRIBUNAL HAD NO OPTION EXCEPT TO CONFI RM THE ORDER OF CIT(A). THE CONCLUSION OF THE TRIBUNAL IS CONFINED TO THE CONFIRMATION OF THE ORDER OF CIT(A) ON THE ISSUE INVOLVED IN GROUND NO. 3 & 4 OF ASSESSEES APPEALS WHICH NEITH ER MEANS THAT THE TRIBUNAL HAS DECIDED THE ISSUE OF DUTY DRAW BACK NOR DOES THIS CONCLUSION CR EATES ANY CONFUSION PARTICULARLY WHEN THE REVENUE WAS NOT IN APPEAL. WE THEREFORE FIND NO M ISTAKE APPARENT ON THE FACE OF RECORD WHICH MAY BE RECTIFIED U/S. 254(2) OF THE INCOME-TAX ACT. 4. IN THE RESULT THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.03.11. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 TH MARCH 2011 *AKS/- 3 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY