ASST CIT 14(1), v. DILIP P. SHAH, MUMBAI

MA 649/MUM/2010 | 2004-2005
Pronouncement Date: 07-01-2011 | Result: Dismissed

Appeal Details

RSA Number 64919924 RSA 2010
Assessee PAN AAIPS7030C
Bench Mumbai
Appeal Number MA 649/MUM/2010
Duration Of Justice 2 month(s) 10 day(s)
Appellant ASST CIT 14(1),
Respondent DILIP P. SHAH, MUMBAI
Appeal Type Miscellaneous Application
Pronouncement Date 07-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 07-01-2011
Assessment Year 2004-2005
Appeal Filed On 28-10-2010
Judgment Text
1 MA 649/MUM/2010 I II IN THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH D DD D MUMBAI MUMBAI MUMBAI MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI D MANMOHAN VP & D MANMOHAN VP & D MANMOHAN VP & D MANMOHAN VP & SHRI SHRI SHRI SHRI R R R R K PANDA AM K PANDA AM K PANDA AM K PANDA AM MA NO. 649/MUM/2010 MA NO. 649/MUM/2010 MA NO. 649/MUM/2010 MA NO. 649/MUM/2010 ARISING OUT OF ITA NO. 2755/MUM/2008 (ASST YEAR2004-05) THE ASST COMMR OF INCOME TAX CIR14(1) MUMBAI VS SHRI DILIP P SHAH 26/27DUBASH MARKET SHEIKH MEMON ST MUMBAI 400 002 (APPLICANT) (RESPONDENT) PAN PAN PAN PAN AAIPS7030C AAIPS7030C AAIPS7030C AAIPS7030C ASSESSEE BY: SHRI R K KOTIAN REVENUE BY: SHRI JITENDRA YADAV/DR O OO O R RR R D DD D E EE E R RR R PER PER PER PER R RR R K PANDA K PANDA K PANDA K PANDA: :: : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATIO N REQUESTS THE TRIBUNAL TO MODIFY THE ORDER PASSED BY IT. THE TRIBUNAL IN T HE IMPUGNED APPEAL HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OF FICER WITH A DIRECTION TO ADJUDICATE THE ISSUE RELATING TO DEDUCTION U/S 80HH C OF DEPB IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF TOPMAN EXPORTS AND IN ACCORDANCE WITH LAW. ACCORDING TO THE REVENUE S INCE THE DECISION OF THE SPECIAL BENCH HAS SINCE BEEN REVERSED BY THE DECISI ON OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS KALPATARU COLOURS & CHEMICALS; THEREFORE TO AVOID UNNECESSARY LITIGATION APPROPRIATE ORDER MAY BE PASSED. 2 THE LD DR AT THE TIME OF HEARING SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS DATED 18.9.2009 AND THE HONBLE HIGH COURT VID E ORDER DATED 29.6.2010 IN THE CASE OF KALPATARU COLOURS & CHEMICALS HAS REVE RSED THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS. DUE TO LOW TAX EFFECT NO APPEAL HAS BEEN FILED BY THE REVENUE AGA INST THE ORDER OF THE TRIBUNAL. 2 MA 649/MUM/2010 HOWEVER IN VIEW OF THE SUBSEQUENT DECISION OF THE JURISDICTIONAL HIGH COURT THE ORDER OF THE TRIBUNAL REQUIRES MODIFICATION. 2.1 THE LD COUNSEL FOR THE ASSESSEE ON THE OTHER H AND SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH L AW. THEREFORE THERE BEING NO MISTAKE APARTMENT FROM THE ORDER OF THE TRIBUNAL; T HE MISCELLANEOUS APPLICATION FILED BY THE REVENUE DESERVES TO BE DISMISSED. 3 WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE PARTIES. WE FIND THE ISSUE IN THE IMPUGNED APPEAL BEFORE THE TR IBUNAL WAS THE ALLOWABILITY OF DEDUCTION U/S 80HHC ON DEPB. WE FIND WHEN THE MAT TER CAME UP BEFORE THE TRIBUNAL BOTH THE PARTIES HAD AGREED THAT THE MATT ER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF TOPMAN EXPORTS. ACCORDINGLY THE ISSUE WAS SET ASIDE TO THE FILE OF THE ASSESSING OF FICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF THE DEC ISION OF THE SPECIAL BENCH CITED AND IN ACCORDANCE WITH LAW. SINCE THE ASSESSING OFF ICER HAS BEEN DIRECTED TO DECIDE THE ISSUE IN THE LIGHT OF THE DECISION OF TH E SPECIAL BENCH AND IN ACCORDANCE WITH LAW; THEREFORE THE ASSESSING OFFIC ER IN OUR OPINION IS DUTY BOUND TO CONSIDER THE DECISION OF THE JURISDICTIONA L HIGH COURT RENDERED SUBSEQUENT TO THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL AND PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW. THEREFOR E REVENUE SHOULD NOT HAVE ANY GRIEVANCE SINCE THE ASSESSING OFFICER IS BOUND TO FOLLOW THE DECISION OF THE JURISDICTIONAL HIGH COURT WHICH HAS BEEN RENDERED S UBSEQUENT TO THE ORDER PASSED BY THE TRIBUNAL. IN THIS VIEW OF THE MATTER WE DO NOT FIND ANY MISSTATE IN 3 MA 649/MUM/2010 THE ORDER OF THE TRIBUNAL AND THE MISCELLANEOUS APP LICATION FILED BY THE REVENUE IS THEREFORE DISMISSED. 4 IN THE RESULT THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 7 TH DAY OF JAN 2011. SD/- SD/- ( (( ( D MANMOHAN D MANMOHAN D MANMOHAN D MANMOHAN ) )) ) VICE PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED 7TH. JAN 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI