DCIT,, New Delhi v. Purolator India Ltd.,, New Delhi

MA 547/DEL/2010 | 2002-2003
Pronouncement Date: 18-11-2011 | Result: Allowed

Appeal Details

RSA Number 54720124 RSA 2010
Assessee PAN AAACP5890Q
Bench Delhi
Appeal Number MA 547/DEL/2010
Duration Of Justice 10 month(s) 27 day(s)
Appellant DCIT,, New Delhi
Respondent Purolator India Ltd.,, New Delhi
Appeal Type Miscellaneous Application
Pronouncement Date 18-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 18-11-2011
Assessment Year 2002-2003
Appeal Filed On 22-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE SHRI I. P. BANSAL JM & SHRI K. D. RANJAN AM MISC. APP. NO. 547 (DEL) OF 2010 [ IN I. T. APPEAL NO. 1927 (DEL) OF 2006 ]. ASSESSMENT YEAR : 2002-03. DY. COMMISSIONER OF INCOME-TAX M/S. PUROLA TER INDIA LTD. [NOW KNOWN AS C I R C L E : 14 (1) VS. MAHLE F ILTER SYSTERM INDIA LIMITED] N E W D E L H I. 1 SRI AUROBINDO MARG N E W D E L H I 110 016. P A N / G I R NO. AAA CP 5890 Q. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI ROHIT GARG C. A.; DEPARTMENT BY : SHRI RAJESH GARG SR. D. R.; O R D E R. PER K. D. RANJAN AM : THIS MISC. APPLICATION FILED BY THE REVENUE FOR AS SESSMENT YEAR 2002-03 IS DIRECTED AGAINST THE CONSOLIDATED ORDER PASSED BY THE TRIBUN AL DATED 18 TH FEBRUARY 2010 IN ITA NO 5685/DEL/2004 & 1927/DEL/2006. 2. ITAT WHILE DECIDING THE APPEAL IN ITA NO 1927/DE L/2006 FILED BY THE ASSESSEE IN RESPECT OF DEPB RECEIPTS FOLLOWED THE DECISION OF THE SPECI AL BENCH IN THE CASE OF TOPMAN EXPORTS VS. INCOME-TAX OFFICER 33 SOT 337 (MUM.) (SPECIAL BENCH ) AND HELD THAT THE AMOUNT OF DEPB CREDIT RECEIVED / RECEIVABLE WAS CHARGEABLE TO TAX UNDER SECTION 28(IIIB) OF THE ACT. THE 2 MISC. APP. NO. 547 (DEL) OF 2010 ASSESSING OFFICER WAS DIRECTED TO EXCLUDE ONLY THE PROFITS ON TRANSFER OF DEPB FROM THE PROFITS OF BUSINESS FOR THE PURPOSE OF COMPUTING DEDUCTION UND ER SECTION 80-HHC. THE ASSESSING OFFICER VIDE THIS MISC. APPLICATION HAS SUBMITTED THAT THE DECISION OF ITAT SPECIAL BENCH IN THE CASE OF M/S. TOPMAN EXPORTS VS. ITO (SUPRA) HAS BEEN SUPERS EDED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPTARU COLOURS & CHEMICALS IN I.T.A. (LODG.) NO. 2887 OF 2009. IT HAS THEREFORE BEEN SUBMITTED THAT THE O RDER OF THE ITAT SHOULD BE REVISED IN THE LIGHT OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CAS E OF CIT VS. KALPTARU COLOURS & CHEMICALS (SUPRA). 3. AT THE TIME OF HEARING THE LD. SR. DR SUBMITTED THAT IN VIEW OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPTARU C OLOURS & CHEMICALS (SUPRA) 90% OF RECEIPTS BY WAY OF DEPB WILL BE EXCLUDED FOR THE PU RPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 80-HHC OF THE ACT. SINCE THE DECISION OF T OPMAN EXPORTS (SUPRA) HAS BEEN REVERSED BY THE HONBLE BOMBAY HIGH COURT THE MISTAKE COMMITTE D BY THE TRIBUNAL IN DECIDING THE APPEAL ON THE BASIS OF THE DECISION OF TOPMAN EXPORTS (SUP RA) DESERVES TO BE RECTIFIED AND ORDER DATED 18.02.2010 HAS TO BE RECALLED. ON THE OTHER HAND THE LD. AR OF THE ASSESSEE SUBMITTED THAT FOR ASSESSMENT YEAR 2002-03 THE REVENUE HAS NOT PREFERR ED ANY APPEAL BEFORE THE HONBLE DELHI HIGH COURT AND THEREFORE THE MATTER HAS BECOME FI NAL. THE MISC. APPLICATION FILED BY THE REVENUE DESERVES TO BE REJECTED AS THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED ON THE BASIS OF DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF KALPTARU COLOURS & CHEMICALS (SUPRA). 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE THE TRIBUNAL PASSED CONSOLIDATED ORDER DATED 1 8 TH FEBRUARY 2010 FOR ASSESSMENT YEARS 2001-02 AND 2002-03 IN ITA. NOS. 5685 (DEL) OF 2004 AND 1927 (DEL) OF 2006. THE REVENUE PREFERRED APPEAL AGAINST ORDER FOR ASSESSMENT YEAR 2001-02. THE LD. AR OF THE ASSESSEE ALSO SUBMITTED THAT NO APPEAL FOR ASSESSMENT YEAR 2002-0 3 WAS PREFERRED BY THE REVENUE BEFORE HONBLE DELHI HIGH COURT. HE FILED THE COPY OF DEC ISION DATED 22/03/2011 OF HONBLE DELHI HIGH COURT IN THE CASE OF ASSESSEE FOR ASSESSMENT Y EAR 2001-02. WE HAVE GONE THROUGH THE 3 MISC. APP. NO. 547 (DEL) OF 2010 DECISION OF HONBLE DELHI HIGH COURT FOR ASSESSMENT YEAR 2001-02. HONBLE DELHI HIGH COURT IN VIEW OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPTARU COLOURS & CHEMICALS 328 ITR 451 (BOM.) HAS SET ASIDE THE ORDE R PASSED BY THE TRIBUNAL ON THE GROUND THAT THE DECISION OF TOPMAN EXPORTS (SUPRA) STOOD OVER-R ULED. THE MATTER WAS REMANDED BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPEAL O N MERITS AFTER TAKING INTO ACCOUNT THE FACTUAL POSITION OF THE CASE. FROM THE DECISION OF HONBLE DELHI HIGH COURT IT IS CLEAR THAT ANY DECISION RENDERED BY THE ITAT RELYING ON THE DECISION OF SPE CIAL BENCH IN THE CASE OF TOPMAN EXPORTS (SUPRA) WILL BE BAD IN LAW. IN ASSESSMENT YEAR 2002 -03 ALSO THE TRIBUNAL HAS SIMPLY FOLLOWED THE DECISION OF SPECIAL BENCH IN THE CASE OF TOPMAN EXP ORTS (SUPRA). SINCE HONBLE DELHI HIGH COURT HAS SET ASIDE THE APPEAL FOR ASSESSMENT YEAR 2001-02 TO BE DECIDED ON MERITS THE SAME PRINCIPLE WILL APPLY FOR ASSESSMENT YEAR 2002-03 AL SO EVEN IF NO APPEAL WAS FILED BY THE REVENUE AGAINST THE DECISION OF THE ITAT. WE ARE BOUND BY THE DECISION OF HONBLE DELHI HIGH COURT. THEREFORE ORDER PASSED RELYING ON THE DECISION OF SPECIAL BENCH IN THE CASE OF TOPMAN EXPORTS (SUPRA) WILL CONSTITUTE MISTAKE APPARENT FROM RECOR DS TO BE RECTIFIED U/S 254(2). RELYING ON THE DECISION OF HONBLE DELHI HIGH COURT RENDERED IN AS SESSMENT YEAR 2001-02 ON IDENTICAL FACTS WE RECALL THE ORDER IN RESPECT THE GROUND RELATING DEP B CREDITS FOR ASSESSMENT YEAR 2002-03 TO BE DECIDED ON MERITS. WE ORDER ACCORDINGLY. 5. IN THE RESULT THE MISC. APPLICATION FILED BY TH E REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 18.11. 2011. SD/- SD/- [ I. P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.11. 2011 . *MEHTA * 4 MISC. APP. NO. 547 (DEL) OF 2010 COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 2. RESPONDENT. 3. CIT 4. CIT (APPEALS) 5. DR ITAT NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT RE GISTRAR ITAT.