DCIT CIR 24(2), v. UNISYATH CHEMICAL,

MA 300/MUM/2011 | 2004-2005
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 30019924 RSA 2011
Assessee PAN AAAFU1724D
Bench Mumbai
Appeal Number MA 300/MUM/2011
Duration Of Justice 3 month(s) 16 day(s)
Appellant DCIT CIR 24(2),
Respondent UNISYATH CHEMICAL,
Appeal Type Miscellaneous Application
Pronouncement Date 09-09-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted F
Tribunal Order Date 09-09-2011
Assessment Year 2004-2005
Appeal Filed On 24-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER & SHRI R.S.PADVEKAR JUDICIAL MEMBER. M. A. NO. 300/MUM/2011 (IN I TA NO. 3701/MUM/2008) ASSE SSMENT YEAR : 2004-05. DY. COMMISSIONER OF INCOME-TAX M/S UNISYATH CHEMICALS CIRCLE-24(2) MUMBAI. VS. 11 SARAF UDYOG BHAWAN NEAR CHINCHOLI PHATAK MALAD (W) MUMBAI-400 064. PAN AAAFU1724D. APPLICANT. RESPONDENT. APPLICANT BY : SHRI SHANTAM BOSE. RESPONDENT B Y : SHRI R.C. JAIN/ SHRI NAVNEET LAHOTI. DATE OF HEARING : 26-08-2011. DATE OF PRONOUNCEMENT : 09-09-2011. O R D E R. PER P.M. JAGTAP A.M. : BY THIS MISCELLANEOUS APPLICATION THE REVENUE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF T HE TRIBUNAL DATED 10 TH SEPT. 2009 PASSED IN ITA NO. 3701/MUM/2008. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE MAIN IS SUE RAISED BY THE ASSESSEE IN ITS APPEAL BEING ITA NO. 3701/MUM/2008 WAS RELATING TO ASSESSEES CLAIM FOR DEDUCTION U/S 80HHC ON THE AMOUNT OF RS.7 48 899/- RECEIVED IN RESPECT OF DEPB 2 M.A. NO.300/MUM/2011 (IN ITA NO. 3701/MUM/2008) ASSESSMENT YEAR : 2004-05. LICENCE. VIDE ITS ORDER DATED 10 TH SEPT. 2009 (SUPRA) THE TRIBUNAL HELD THAT THE SA ID ISSUE WAS COVERED BY THE DECISION OF SPECIAL BENCH OF ITAT IN THE CASE OF M/S TOPMAN EXPORTS VS. ITO REPORTED IN 318 ITR (AT) 87 (MUM.) (S.B.) WHEREIN IT WAS HELD THAT ON SALE OF DEPB ENTITLEMENTS BOOK VA LUE OF DEPB WOULD BE TAXABLE AS BUSINESS INCOME U/S 28(IIIB) AND DEDUCTION U/S 8 0HHC WILL BE AVAILABLE ON THIS AMOUNT IN THE YEAR OF ACCRUAL. ACCORDINGLY THE MAI N ISSUE INVOLVED IN THE ASSESSEES APPEAL WAS RESTORED BY THE TRIBUNAL TO T HE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME AFRESH IN THE LIGHT OF THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (SUPRA). 3. AS SUBMITTED IN THE PRESENT APPLICATION FILED BY THE REVENUE AND FURTHER REITERATED BY THE LEARNED DR AT THE TIME OF HEARING BEFORE US THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOURS AND CHEMICALS REPORTED IN 328 ITR 451 HAS OVERRULED THE DECISION OF SPECIAL B ENCH OF ITAT IN THE CASE OF TOPMAN EXPORTS (SUPRA) HOLDING THAT THE AMOUNT EQUI VALENT TO THE FACE VALUE OF DEPB AS WELL AS THE AMOUNT RECEIVED IN EXCESS OF DE BP CREDIT CONSTITUTE PROFIT OF BUSINESS U/S 28(IIID) AND NOT U/S 28(IIIB) AS HELD BY THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS (SUPRA). IT IS THUS CLEAR THAT THE D ECISION OF THE TRIBUNAL RENDERED ON THIS ISSUE IN ITA NO.3701/MUM/2008 (SUPRA) IS N OT IN CONFORMITY WITH THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE O F KALPATARU COLOURS AND CHEMICALS (SUPRA) AND THERE IS A MISTAKE APPARENT F ROM RECORD IN THE SAID ORDER. WE THEREFORE RECTIFY THE SAME BY REVISING OUR DIR ECTION TO THE AO TO THE EFFECT THAT HE SHALL DECIDE THE MAIN ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE AFRESH IN THE LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH CO URT IN THE CASE OF KALPATARU COLOURS AND CHEMICALS (SUPRA). AS SUBMITTED BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES THERE ARE CERTAIN INCIDENTAL ISSUES RELATING TO THE MAIN ISSUE AS RAISED 3 M.A. NO.300/MUM/2011 (IN ITA NO. 3701/MUM/2008) ASSESSMENT YEAR : 2004-05. IN THE APPEAL OF THE ASSESSEE AND THE AO MAY BE DIR ECTED TO CONSIDER THE SAME ALSO. ACCORDINGLY THE AO IS DIRECTED TO CONSIDER THE SAI D ISSUES WHICH ARE STATED TO BE INCIDENTAL TO THE MAIN ISSUE THAT HAVE BEEN RAISED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE TRIBUNAL. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED ON THIS 9 TH DAY OF SEPT. 2011. SD/- SD/- (R.S. PADVEKAR)) (P.M . JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI DATED: 9 TH SEPT. 2011. COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR F-BENCH. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR ITAT MUMBAI BENC HES MUMBA I. WAKODE .