DCIT CIR 3(1), v. AI- KABEER EXPORTS P. LTD,

MA 461/MUM/2010 | 2003-2004
Pronouncement Date: 10-12-2010 | Result: Dismissed

Appeal Details

RSA Number 46119924 RSA 2010
Assessee PAN AABCA0500H
Bench Mumbai
Appeal Number MA 461/MUM/2010
Duration Of Justice 4 month(s) 27 day(s)
Appellant DCIT CIR 3(1),
Respondent AI- KABEER EXPORTS P. LTD,
Appeal Type Miscellaneous Application
Pronouncement Date 10-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 10-12-2010
Assessment Year 2003-2004
Appeal Filed On 14-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI B. RAMAKO TAIAH (AM) MA NO.461/MUM/2010 ARISING OUT OF ITA NO.2297/MUM/2008 ASSESSMENT YEAR : 2003-04 DY. COMMISSIONER OF INCOME TAX CIRCLE-3(1) ROOM NO.607 6 TH FLOOR AAYAKAR BHAVAN MUMBAI-20. ..( APPLICANT ) VS. M/S. AL-KABEER EXPORTS PVT. LTD. 91 JOLLY MAKER CHAMBERS NO.2 NARIMAN POINT MUMBAI-400021. ..( RESPONDENT ) P.A. NO. (AABCA 0500 H) APPLICANT BY : SHRI SUMEET KUMAR RESPONDENT BY : SHRI JIT ENDRA B. SANGHVI O R D E R PER D.K. AGARWAL (JM). THIS MISCELLANEOUS PETITION FILED BY THE REVENUE IS DIR ECTED AGAINST THE ORDER DATED 11.9.2009 PASSED BY THE TRI BUNAL IN ITA NO. 2297/M/2008 FOR THE ASSESSMENT YEAR 2003-04. 2. THE REVENUE IN ITS MISCELLANEOUS PETITION DATED 19.7 .2010 SUBMITTED THAT THE TRIBUNAL IN PARA-5 OF ITS ORDER W HILE OBSERVING THAT THE ISSUE PERTAINING TO DEDUCTION U/S.80 HHC WAS NOT ADJ UDICATED BY THE LD. CIT(A) SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER MA NO.461/M/10 A.Y:03-04 2 FOR DENOVO DECISION INSTEAD OF SENDING BACK THE SAME TO T HE FILE OF THE LD. CIT(A). IT WAS THEREFORE SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH MAY BE RECTIFIED TO THE E FFECT THAT THE CONCERNED ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD.CI T(A) IN PLACE OF ASSESSING OFFICER . 3. AT THE TIME OF HEARING THE LD. DR SUBMITS THAT FOR THE REASONS AS MENTIONED IN THE MISCELLANEOUS PETITION THE ORDER PASSED BY THE TRIBUNAL BE RECTIFIED ACCORDINGLY. 4. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE SUB MITS THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL IN SE TTING ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AS THE ASSESSING O FFICER WITHOUT GIVING ANY FINDING HAS ALLOWED THE DEDUCTION U/S.80 HHC AT 50% OF RS.1 80 92 882/- AND THE LD. CIT(A) WITHOUT A DJUDICATING THE GROUND RAISED BY THE ASSESSEE HAS DECIDED THE APPEAL THER EFORE THE TRIBUNAL HAS RIGHTLY SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. HE FURTHER SUBMITS THAT THE ISSUE NOW STANDS COVERE D IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HON'BLE SUPREME COURT I N AJANTA PHARMA LTD. VS. CIT IN CIVIL APPEAL NO.7518 OF 2008 DATED 9.9.2010. HE ALSO PLACED ON RECORD THE SAID COPY OF THE JUDGMENT. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIN D THAT THE FACTS MA NO.461/M/10 A.Y:03-04 3 ARE NOT IN DISPUTE. WE FURTHER FIND THAT THE TRIBUN AL AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE HAS RIGHTLY SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR D ENOVO DECISION ON THE ISSUE OF WORKING OUT THE PROFIT ELIGIBLE FOR DEDUCTION U/S.80 HHC OF THE ACT WHILE COMPUTING BOOK PROFIT U/S.115 JB OF T HE ACT. THIS BEING SO THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE I SSUE ACCORDINGLY AFTER CONSIDERING THE RECENT DECISION OF HON'BL E SUPREME COURT IN AJANTA PHARMA LTD. VS. CIT (2010) 327 ITR 3 05 (SC) WHEREIN IT HAS BEEN HELD THAT THE APPELLATE TRIBUNAL WAS RIGH T IN HOLDING THAT 100% OF THE EXPORT PROFITS EARNED BY THE ASSESSEE AS COMP UTED U/S.80HHC(3) WAS ELIGIBLE FOR REDUCTION UNDER CLAUSE (IV) OF THE EXPLANATION TO SEC.115 JB. ACCORDINGLY THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS REJECTED. 6. IN THE RESULT MISCELLANEOUS PETITION STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.12.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 10.12.2010. JV. MA NO.461/M/10 A.Y:03-04 4 COPY TO: THE APPLICANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.