ACIT, Trichy v. M/s. Expo Fab, Karur

MA 177/CHNY/2010 | 2003-2004
Pronouncement Date: 14-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 17721724 RSA 2010
Assessee PAN AAAFE1996R
Bench Chennai
Appeal Number MA 177/CHNY/2010
Duration Of Justice 1 month(s) 22 day(s)
Appellant ACIT, Trichy
Respondent M/s. Expo Fab, Karur
Appeal Type Miscellaneous Application
Pronouncement Date 14-01-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 14-01-2011
Assessment Year 2003-2004
Appeal Filed On 22-11-2010
Judgment Text
IN THE INCOMETAX APPELLATE TRIBUNAL: C- BENCH:CHENN AI (BEFORE SHRI ABRAHAM P. GEORGE. ACCOUNT ANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER) MA NO.177/MDS/10 ITA NO. 802/MDS/07 ASSESSMENT YEAR 2003-04 THE ACIT CIR.II RANGE II TIRUCHIRAPALLI VS M/S EXPO FAB 56 57 ANNAMALAI CHAMBERS RAMAKRISHNAPURAM NORTH KARUR (PAN AAAFE1996R) (APPLICANT) (RESPONDENT) APPLLICANT BY: RESPONDENT BY: SHRI SHAJI P.JACOB. SHRI PHILIP GEORGE ORDER PER ABRAHAM P.GEORGE ACCOUNTANT MEMBER IN THIS MISC. PETITION GRIEVANCE RAISED BY THE REVE NUE IS THAT THIS TRIBUNAL ;HAD REMITTED THE ISSUE RELATING TO CLAIM FOR DEDUCTION UNDER SEC. 80HHC ON DEPB BENEFITS BACK TO THE FILE OF AO FOR FRESH CONSIDERATION IN ACCORDANCE WITH THE GUIDELINES LAID DOWN BY THE SPE CIAL BENCH IN THE CASE OF TOPMAN EXPORTS V. ITO (318 ITR(AT)87). ACCORDING TO THE LD. DR HONBLE BOMBAY HIGH COURT HAS IN THE CASE OF CIT VS . KALPATARU COLOURS & CHEMICALS (328 ITR 451) REVERSED THE DECISION OF T HE SPECIAL BENCH IN MA 177/MDS/10 2 TOPMAN EXPORTS (SUPRA) AND HENCE THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL IN THIS REGARD. 2. LD.AR SUBMITTED THAT THE GUIDELINES MENTIONED I N SPECIAL BENCH ORDER IN TOPMAN EXPORTS CASE NO MORE EXISTED SINC E IT WAS OVERTURNED BY HON. BOMBAY HIGH COURT IN KALPATARU COLOURS & CHEMI CALS CASE (SUPRA). THEREFORE ACCORDING TO HIM THE AO IF HE FOLLOWED THE GUIDELINES GIVEN IN TOPMAN EXPORTS CASE OF SPECIAL BENCH WILL BE DOIN G AN ACT OF JUDICIAL INDISCIPLINE SINCE HE WILL HAVE TO GO BY A DECISIO N WHICH WAS OVERTURNED BY A HIGHER AUTHORITY. 3. AS AGAINST ABOVE THE LD. AR SUBMITTED THAT THERE WAS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL SUPRA. (I) AS ON DATE WHEN THE TRIBUNAL PASSED THE ORDER THE SPECIAL BENCH DECISION IN TOPMAN EXPORTS CASE WAS THE ONLY AUTHORITY ON THE ISSUE. (II) THERE WILL BE A RECTIFICABLE MISTAKE ONLY IF THERE WAS A DECISION OF THE JURISDICTIONAL HIGH COURT OR THE APEX COURT AN D THERE WAS NOTHING OF THESE SORTS FOR CHENNAI BENCH OF THE TRIBUNAL TO EX ERCISE ITS POWERS UNDER SEC. 254(2) OF THE ACT. (III) GIVING ANY FURTHER DIRECTION TO THE A O WILL RESULT IN A REVIEW OF THE ORDER OF THIS TRIBUNAL. MA 177/MDS/10 3 (IV) REVENUE HAD TAKEN THE SUBJECT ORDER OF THE TR IBUNAL IN APPEAL BEFORE THE JURISDICTIONAL HIGH COURT AND HENCE AN M P CANNOT BE ENTERTAINED ON SUCH ORDER. 4. AS AGAINST THIS THE LD. AR WAS SOF THE OPINION T HAT THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL WARRANTING ANY RECTIFI CATION. 5. WE HAVE SEEN THE ORDER OF THE TRIBUNAL. ONE OF T HE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL WAS REGARDING THE CALCUL ATION OF DEDUCTION UNDER SEC. 80HHC OF THE ACT ON DEPB BENEFITS. THIS TRIBUNAL HAD HELD AS UNDER AT PARA-4 OF ITS ORDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS. QUESTION RAISED IN THIS APPEAL IS ON TREATMENT OF D EPB FOR THE PURPOSE OF COMPUTING DEDUCTION U/S 80HHC OF THE ACT . HOW THE DEPB BENEFITS HAVE TO BE CONSIDERED WHETHER AT THE TIME OF RECEIPT OR AT THE TIME OF ACCRUAL OR AT THE TIME OF CREDIT OR ON SALE HAVE ALL BEEN CONSIDERED BY THE SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS (SUPRA). NEITHER AO NOR THE LD. CIT9A0 HAD THE BENEFIT OF THE WISDOM OF THE SPECIAL BENCH AT THE TIME OF DEALING WITH THIS ISSUE. HENCE IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDER OF THE AO AND LD. CIT(A) IN THIS REGARD AND REMIT THE ISSUE B ACK TO THE FILE OF THE AO FOR DECIDING IT BASED ON THE GUIDELINES LAID DOWN BY THE SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS (SUPRA) 6. AS ON THE DATE WHEN THIS TRIBUNAL PASSED ORDER NO DOUBT IT WAS JUSTIFIED IN REMITTING THE MATTER AND DIRECTING THE AO TO FOLLOW THE GUIDELINES IN TOPMAN EXPORTS CASE (SUPRA). BUT IT REMAINS AN UNCONTROVERTED FACT THAT THE SAID DECISION HAS BEEN OVERRULED BY THE HO N. BOMBAY HIGH COURT IN KALPATARU COLOURS & CHEMICALS CASE (SUPRA). IN OUR OPINION THERE IS AN MA 177/MDS/10 4 ERROR IN THE ORDER OF THE TRIBUNAL IN THAT POWER O F AO TO CONSIDER THE ISSUE WAS LIMITED TO THE GUIDELINES LAID DOWN BY THE SPEC IAL BENCH IN TOPMAN EXPORTS CASE WHEREAS IT SHOULD HAVE BEEN PRINCIPL ES EVOLVING OUT OF TOPMAN EXPORTS CASE. IT IS THE MANIFEST DUTY OF A JUDICIAL OR QUASI JUDICIAL BODY TO ENSURE THAT ITS ORDERS ARE CLEAR AND SHOUL D SUBSERVE THE ULTIMATE OBJECT OF RENDERING JUSTICE AND IF THE DIRECTIONS G IVEN COULD LEAD TO A RESULT WHEREBY JUDICIAL DISCIPLINE OF THE HIERARCHY OF COU RTS WOULD GET NEGATED THEN SUCH DIRECTIONS WILL BE SUSCEPTIBLE TO A RECTI FICATORY PROCEEDINGS THE MISTAKE IN SUCH DIRECTIONS BEING GLARING AND APPARE NT. RECTIFICATION OF SUCH A MISTAKE CANNOT BE REFUSED JUST FOR A REASON THAT ONE OF THE PARTIES TO THE DISPUTE HAS MOVED IN FURTHER APPEAL. 7. THEREFORE FOR MAINTAINING JUDICIAL DISCIPLINE W E FIND IT APPROPRIATE TO MODIFY THE DIRECTIONS GIVEN TO THE AO IN THE ORDER OF THE TRIBUNAL AS UNDER: HENCE IN THE INTEREST OF JUSTICE WE SET ASIDE TH E ORDER OF THE AO AND LD. CIT(A) OM THE ASPECT OF SEC.80HHC DEDUCTION AND REMIT THE ISSUE BACK TO THE FILE OF THE AO FOR DECIDING IT BA SED ON THE PRINCIPLES EVOLVING OUT OF TOPMAN EXPORTS CASE AND THE DECISI ONS OF ANY HIGHER JUDICIAL AUTHORITIES ON THE RELEVANT ISSUE WHICH ARE AVAILABLE TO THE AO WHEN HE CONSIDERS IT AFRESH. MA 177/MDS/10 5 8. NEEDLESS TO MENTION ASSESSEE HAS TO BE GIVEN A FAIR CHANCE TO REPRESENT ITS CASE. 9. THE MISC. PETITION FILED BY THE REVENUE IS DISPO SED OF WITH THE ABOVE DIRECTIONS. 10. FOR STATISTICAL PURPOSES THE MISC. PETITION IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 14 -1-2011. SD/- SD/- ( GEORGE MATHAN) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI: 14TH JANUARY 2011 NBR CC: ASSESSEE/ ASSESSING OFFICER/ CIT(A)/ CIT/ D .R/ GUARD FILE.