ACIT, Trichy v. M/s. Metro Fabrics, Karur

MA 179/CHNY/2010 | 2002-2003
Pronouncement Date: 09-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 17921724 RSA 2010
Assessee PAN AAAFM5247P
Bench Chennai
Appeal Number MA 179/CHNY/2010
Duration Of Justice 9 month(s) 17 day(s)
Appellant ACIT, Trichy
Respondent M/s. Metro Fabrics, Karur
Appeal Type Miscellaneous Application
Pronouncement Date 09-09-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 09-09-2011
Date Of Final Hearing 26-08-2011
Next Hearing Date 26-08-2011
Assessment Year 2002-2003
Appeal Filed On 22-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER .. M.P. NO. 179/MDS/2010 (IN I.T.A. NO. 1704/MDS/2009) ASSESSMENT YEAR : 2002-03 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE II RANGE II TRICHY. (PETITIONER) V. M/S METRO FABRICS 44 & 46 50 FEET ROAD RAMAKRISHNAPURAM NORTH KARUR. PAN : AAAFM5247P (RESPONDENT) PETITIONER BY : SHRI T.N. BETGERI JCIT RESPONDENT BY : SHRI N. QUA DIR HOSEYN DATE OF HEARING : 26.08.2011 DATE OF PRONOUNCEMENT: 09.09.2011 O R D E R 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 CL AIM FOR DEDUCTION UNDER SEC. 80HHC ON DEPB BENEFITS BACK TO THE FILE OF AO FOR FRESH CONSIDERATION IN ACCORDANCE WITH THE GUIDELINES LAI D DOWN BY THE M.P.NO. 179/MDS/10 2 SPECIAL 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 & CHEMICAL S (328 ITR 451) REVERSED THE DECISION OF THE SPECIAL BENCH IN TOPMA N EXPORTS (SUPRA) AND HENCE THERE IS A MISTAKE APPARENT IN TH E ORDER OF THE TRIBUNAL IN THIS REGARD. 2. LEARNED D.R. SUBMITTED THAT THE GUIDELINES MENT IONED IN SPECIAL BENCH ORDER IN TOPMAN EXPORTS CASE NO MORE EXISTED SINCE IT WAS OVERTURNED BY HON. BOMBAY HIGH COURT IN KALP ATARU COLOURS & CHEMICALS CASE (SUPRA). THEREFORE ACCORDING TO HI M THE AO IF HE FOLLOWED THE GUIDELINES GIVEN IN TOPMAN EXPORTS CA SE OF SPECIAL BENCH WILL BE DOING AN ACT OF JUDICIAL INDISCIPLIN E SINCE HE WILL HAVE TO GO BY A DECISION WHICH WAS OVERTURNED BY A HIGHE R 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. M.P.NO. 179/MDS/10 3 (II) THERE WILL BE A RECTIFICABLE MISTAKE ONLY IF THERE WAS A DECISION OF THE JURISDICTIONAL HIGH COURT OR THE AP EX COURT AND THERE WAS NOTHING OF THESE SORTS FOR CHENNAI BENCH OF THE TRIBUNAL TO EXERCISE 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. (IV) REVENUE HAD TAKEN THE SUBJECT ORDER OF THE TR IBUNAL IN APPEAL BEFORE THE JURISDICTIONAL HIGH COURT AND HEN CE AN MP CANNOT BE ENTERTAINED ON SUCH ORDER. 4. WE HAVE PERUSED THE ORDER OF THE TRIBUNAL. ONE O F THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL WAS REGARDING THE CALCULATION OF DEDUCTION UNDER SEC. 80HHC OF THE ACT ON DEPB BENEF ITS. THIS TRIBUNAL HAD HELD AT PARA 5 OF ITS ORDER AS UNDER : - 5. THE TREATMENT REGARDING DEPB AT THE POINT OF CRE DIT AS WELL AS WHEN SUCH EXPORT INCENTIVES ARE SOLD HAS BE EN DEALT WITH IN DETAIL BY THE SPECIAL BENCH OF THIS TRIBUNAL IN T HE DECISION OF TOPMAN EXPORTS REPORTED IN 318 ITR [AT] 87. NEITHE R THE ASSESSING OFFICER NOR THE LD. CIT(A) HAD THE OPPORT UNITY TO GO THROUGH THIS ORDER AT THE TIME WHEN THE ISSUE WAS D EALT. HENCE IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND LD. CIT(A) IN THIS REGARD AND REMIT THE M.P.NO. 179/MDS/10 4 ISSUE REGARDING DEPB TO THE FILE OF THE ASSESSING O FFICER FOR CONSIDERATION AFRESH IN THE LIGHT OF GUIDELINES LAI D DOWN BY THE SPECIAL BENCH IN THE AFOREMENTIONED DECISION. 5. 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 ATLEAST TO AN EXTENT BY THE HON. BOMBAY HIGH COURT IN KALPA TARU COLOURS & CHEMICALS CASE (SUPRA). IN OUR OPINION THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL IN THAT POWER OF AO TO CONSIDER TH E ISSUE WAS LIMITED TO THE GUIDELINES LAID DOWN BY THE SPECIAL BENCH IN TOPMAN EXPORTS CASE WHEREAS IT SHOULD HAVE BEEN PRINCIPLES EVOLVI NG OUT OF TOPMAN EXPORTS CASE. IT IS THE MANIFEST DUTY OF A JUDICIA L OR QUASI JUDICIAL BODY TO ENSURE THAT ITS ORDERS ARE CLEAR AND SHOUL D SUBSERVE THE ULTIMATE OBJECT OF RENDERING JUSTICE AND IF THE DIR ECTIONS GIVEN COULD LEAD TO A RESULT WHEREBY JUDICIAL DISCIPLINE OF THE HIERARCHY OF COURTS WOULD GET NEGATED THEN SUCH DIRECTIONS WILL BE SUS CEPTIBLE TO A RECTIFICATORY PROCEEDINGS THE MISTAKE IN SUCH DIRE CTIONS BEING GLARING AND APPARENT. RECTIFICATION OF SUCH A MISTAKE CANNO T BE REFUSED JUST M.P.NO. 179/MDS/10 5 FOR A REASON THAT ONE OF THE PARTIES TO THE DISPUTE HAS MOVED IN FURTHER APPEAL. 6. THEREFORE FOR MAINTAINING JUDICIAL DISCIPLINE W E FIND IT APPROPRIATE TO MODIFY THE DIRECTIONS GIVEN TO THE A O IN PARA 5 OF 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) ON THE ASPECT OF SEC.80HHC DEDUCT ION AND REMIT THE ISSUE BACK TO THE FILE OF THE AO FOR DECIDING I T BASED ON THE PRINCIPLES EVOLVING OUT OF TOPMAN EXPORTS CASE AND THE DECISIONS OF ANY HIGHER JUDICIAL AUTHORITIES ON THE RELEVANT IS SUE WHICH ARE AVAILABLE TO THE AO WHEN HE CONSIDERS IT AFRESH. 7. NEEDLESS TO MENTION ASSESSEE HAS TO BE GIVEN A FAIR CHANCE TO REPRESENT ITS CASE. 8. THE MISC. PETITION FILED BY THE REVENUE IS DISPO SED OF WITH THE ABOVE DIRECTIONS. 9. FOR STATISTICAL PURPOSES THE MISC. PETITION IS T REATED AS PARTLY ALLOWED. M.P.NO. 179/MDS/10 6 THE ORDER WAS PRONOUNCED IN THE COURT ON 9 TH SEPTEMBER 2011. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 9 TH SEPTEMBER 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE