INDOCO REMEDIES LTD, v. DCIT CEN CIR 34,

MA 241/MUM/2010 | 2003-2004
Pronouncement Date: 09-07-2010 | Result: Allowed

Appeal Details

RSA Number 24119924 RSA 2010
Assessee PAN AAACI0380C
Bench Mumbai
Appeal Number MA 241/MUM/2010
Duration Of Justice 3 month(s)
Appellant INDOCO REMEDIES LTD,
Respondent DCIT CEN CIR 34,
Appeal Type Miscellaneous Application
Pronouncement Date 09-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 09-07-2010
Assessment Year 2003-2004
Appeal Filed On 09-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI BEFORE SHRI. N.V. VASUDEVAN (J.M.) AND SHRI. B. RAM AKOTAIAH (A.M) M.A. NO.241/MUM/2010 (ARISING OUT OF ITA NO.6863/MUM/2006 ) ASSESSMENT YEAR : 2001-2002 & M.A. NO.242/MUM/2010 (ARISING OUT OF ITA NO.3968/MUM/2007 ) ASSESSMENT YEAR : 2004-2005 INDOCO REMEDIES LTD. INDOCO HOUSE 166 CST RD. SANTACRUZ (E) MUMBAI 400 098 PAN : AAACI0380C VS. DCIT CENTRAL CIRCLE-34 AAYAKAR BHAVAN M.K. RD. MUMBAI 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ JAIN RESPONDENT BY : SHRI ARUN C. BHARAT O R D E R PER N.V. VASUDEVAN J.M. M.A. NO.241/MUM/2010 IN THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS POINTED OUT CERTAIN ERROR IN THE ORDER OF THE TRIBUNAL IN ITA NO.6863/M UM/06 FOR ASSESSMENT YEAR 2001-2002 AND HAS PRAYED THAT THE SAME MAY BE RECTIFIED. 2. GROUND NO.6 RAISED BY THE ASSESSEE IN THE AFORES AID APPEAL WAS WITH REGARD TO ALLOWABILITY OF DEDUCTION U/S.80HHC IN RE SPECT OF TWO ITEMS NAMELY SALES TAX REFUND OF RS.34 80 036/- AND EXCHA NGE GAIN OF RS.23 89 402/-. IN RESPECT OF ALLOWABILITY OF DEDU CTION U/S.80HHC IN RESPECT OF SALES TAX REFUND THE ISSUE WAS COVERED B Y GROUND NO.2 IN ASSESSEES APPEAL IN ITA NO.3780/MUM/05 FOR ASSESSM ENT YEAR 2001-2002 BUT THE TRIBUNAL HAS WRONGLY MENTIONED THAT SAME IS COVERED BY GROUND NO.1(B) IN ITA NO.3780/MUM/05 FOR ASSESSMENT YEAR 2 001-2002. THIS MISTAKE IS APPARENT AND SAME IS DIRECTED TO BE RECT IFIED BY SUBSTITUTING THE M.A. NO.241/MUM/2010 M.A. NO.242/MUM/2010 2 WORD GROUND NO.2 IN PLACE OF GROUND NO.1(B) IN PARA 44 18 THE LINE TOP AT PAGE 21 OF THE ORDER OF THE TRIBUNAL. 3. IN RESPECT OF EXCHANGE GAIN THE TRIBUNAL DID NOT ADJUDICATE THE SAME. AFTER PERUSING THE ORDER OF THE TRIBUNAL WE FIND TH AT THE CONTENTION OF THE ASSESSEE THAT THIS ISSUE WAS NOT ADJUDICATED BY THE TRIBUNAL IS CORRECT. WE FIND THAT ISSUE WITH REGARD TO ALLOWING DEDUCTION U /S.80HHC IN RESPECT OF EXCHANGE GAIN HAS BEEN ADJUDICATED BY SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. PRAKASH SHAH 115 ITD 167 (SB) (MUM ) AND ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE IN ACCORDAN CE WITH THE LAW LAID DOWN IN THE AFORESAID DECISION. THE ORDER OF THE TRIBU NAL IS DIRECTED TO BE RECTIFIED AS FOLLOWS: IN PARA-44 AT PAGE 21 A19TH LINE FROM TOP AFTER THE WORDS ASSESSMENT YEAR 2001-02 THE FOLLOWING SENTEN CE SHALL BE INSERTED. WITH REGARD TO ALLOWING DEDUCTION U/S.80HHC IN RES PECT OF EXCHANGE GAIN THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE ISSUE IN THE LIGHT OF SPECIAL BENCH DECISION IN THE CASE OF ACIT VS. PRAKASH L. SHAH 115 ITD 167(SB). 4. ANOTHER MISTAKE POINTED OUT BY THE ORDER OF THE TRIBUNAL IS WITH REGARD TO GROUND NO.8 IN ITA NO.6863/MUM/09 IN PARA 45 OF THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS UPHELD THE ORDER O F THE CIT(A) ACCEPTING THE ASSESSEES CLAIM BUT IN THE CONCLUDING PORTION OF P ARA 45 THE TRIBUNAL HAD OBSERVED THAT GROUND OF APPEAL OF THE REVENUE IS AL LOWED WHEREAS IT SHOULD HAVE BEEN MENTIONED THAT GROUND OF APPEAL OF THE RE VENUE IS DISMISSED. THIS MISTAKE IS ALSO APPARENT FROM THE RECORD AND I S DIRECTED TO BE RECTIFIED BY SUBSTITUTING THE WORD DISMISSED INSTEAD OF THE WORD ALLOWED IN PARA- 45 LAST SENTENCE LAST WORD. 5. IN THE RESULT MISCELLANEOUS APPLICATION 241/MUM /2010 IS ALLOWED. M.A. NO.241/MUM/2010 M.A. NO.242/MUM/2010 3 M.A. NO.242/MUM/2010 6. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSE SSEE PRAYING FOR RECTIFICATION OF CERTAIN APPARENT ERROR IN THE ORDE R OF THE TRIBUNAL IN ITA NO.3968/MUM/07 FOR ASSESSMENT YEAR 2004-05. 7. IN GROUND NO.9 TO 12 IN THE AFORESAID APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 2004-05 THE REVENUE HAD CHALLENGED THE ACTION OF THE CIT(A) IN ALLOWING DEDUCTION U/S.80HHC IN RESPECT O F FOLLOWING ITEMS.: GR.NO. NATURE OF INCOME AMOUNT 9 INTEREST INCOME 1 13 28 336 10 SALE OF SCRAP 4 11 494 11 SALES TAX REFUND 35 58 078 11 EXCHANGE GAIN 63 92 247 12 BALANCES WRITTEN BACK 82 445 8. WHILE DEALING WITH THE AFORESAID GROUNDS THE TRI BUNAL HAS COMMITTED THE FOLLOWING ERRORS: GROUND NO.9 (INTEREST INCOME) HAVE BEEN ALLOWED BY THE TRIBUNAL AS BEING COVERED BY GROUND 1(B) (PARA 5-7) OF ASSESSEES APPEAL (ITA 3780/M/05) FOR ASSESSMENT YE AR 2001-02 INSTEAD OF GROUND NO.4(C)(PARA 56) OF ASSES SEES APPEAL (ITA 6813/M/06) FOR ASSESSMENT YEAR 2003-04. GROUND NO.10 (SALE OF SCRAP) HAVE BEEN ALLOWED BY THE TRIBUNAL AS BEING COVERED BY GROUND 1(B) (PARA 5-7) OF ASSESSEES APPEAL (ITA 3780/M/05) FOR ASSESSMENT YE AR 2001-02 INSTEAD OF GROUND NO.3 (PARA 24) OF ASSESSE ES APPEAL (ITA 880/M/06) FOR ASSESSMENT YEAR 2002-03. GROUND NO.11 (SALES TAX REFUND) HAVE BEEN ALLOWED BY THE TRIBUNAL AS BEING COVERED BY GROUND 1(B) (PARA 5-7) OF ASSESSEES APPEAL (ITA 3780/M/05) FOR ASSESSMENT YE AR 2001-02 INSTEAD OF COVERED BY GROUND NO.2(PARA11) O F ASSESSEES APPEAL (ITA 3780/M05) FOR ASSESSMENT YEA R 2001-02. M.A. NO.241/MUM/2010 M.A. NO.242/MUM/2010 4 FURTHER THE ISSUE OF TREATMENT OF EXCHANGE GAIN IN COMPUTING DEDUCTION UNDER SECTION 80HHC HAS NOT BEE N DISCUSSED IN ANY OF THE EARLIER ASSESSMENT YEAR. GROUND NO12 (BALANCES WRITTEN BACK) HAVE BEEN ALLOWED BY THE TRIBUNAL AS BEING COVERED BY GROUND 1(B)(PAR A 5-7) OF ASSESSEES APPEAL (ITA 3780/M/05) FOR ASSESSMENT YE AR 2001-02 INSTEAD OF COVERED BY GROUND NO.2 (PARA 11) OF ASSESSEES APPEAL (ITA 3780/M/05) FOR ASSESSMENT YE AR 2001-02. 9. IN OUR OPINION THE ERRORS POINTED OUT ABOVE ARE ERROR APPARENT ON THE FACE OF THE RECORD. THEY ARE DIRECTED TO BE RECTI FIED AS PRAYED FOR BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION. IN RESP ECT OF FOREIGN EXCHANGE GAIN WHICH IS PART OF GROUND NO.11 THE TRIBUNAL HA D NOT ADJUDICATED THE SAME. WE HOWEVER FIND THAT THIS ISSUE HAVE BEEN CONSIDERED AND DECIDED BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. PRAKASH SHAH 115 ITD 167 (SB) (MUM). WE DIRECT THE ASSESSING O FFICER TO CONSIDER THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE RATIO LAI D DOWN IN THE AFORESAID DECISION. TO THIS EXTENT THE ORDER OF THE TRIBUNAL IS MODIFIED IN RESPECT OF THIS PORTION OF GROUND NO.11. 10. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 9 TH DAY OF JULY 2010. SD/- (B. RAMAKOTAIAH) (ACCOUNTANT MEMBER) SD/- (N.V. VASUDEVAN) (JUDICIAL MEMBER) MUMBAI DATED 09.07.2010 JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUMB AI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH C MUMBAI M.A. NO.241/MUM/2010 M.A. NO.242/MUM/2010 5 //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI