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M/s Abhishek Industries Ltd.,Ludhiana Vs The JCIT, Range-1,Ludhiana
May, 29th 2012
            IN THE INCOME TAX APPELLATE TRIBUNAL
              CHANDIGARH BENCHES `A' CHANDIGARH

        BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT
         AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER

                                    MA No. 57/Chd/2012
                                 (In ITA No. 321/Chd/2009)
                                 Assessment Year: 2004-05

M/s Abhishek Industries Ltd.,             Vs     The JCIT, Range-1,
Ludhiana                                         Ludhiana


(Appellant)                                             (Respondent)


                    Appellant By                 : Shri Ashwani Kumar
                    Respondent By                : Shri Akhilesh Gupta

                    Date of hearing       : 25.5.2012
                    Date of Pronouncement : 28.5.2012

                                         ORDER


PER H.L.KARWA, VP


      This M isc. Application preferred by the assessee arises out of the order

of the Tribunal dated 27.09.2011 passed in ITA No. 321/Chd/2009 relating to

assessment year 2004-05.



2.    The assessee vide its application dated 18.4.2012 has stated as under:-

     "Before the Hon'ble Bench Income
     Tax Appellate Tribunal Chandigarh
     Bench "A" Chandigarh

     Sub : Miscellaneous application u/s 254(2) of the Income Tax Act, 1961 in the
           case of M/s Abhishek Industries Ltd. (Now Trident Limited), Ludhiana
           Vs Joint Commissioner of Income Tax, Range-l, Ludhiana arising out of
           ITA No. 321/Chd/2009 A/Y 2004-05

     Sir,
                                                                                        2


       Respectfully the following is submitted for kind consideration and
necessary adjudication by the Hon'ble Bench.

       That the ITA No. 321/Chd/2009 in the case of M/s Abhishek Industries
Ltd., Ludhiana for A/Y 2004-05 was adjudicated upon by the Hon'ble "A" Bench
vide order dated 27.09.2011.

       That while deciding the appeal, ground No. 3(d) which read as under:-

         "Disallowing deduction u/s 80HHC in respect of whole amount of DEPB
         entitlement amounting to Rs. 19,45,46,911/- by not considering it as an
         export benefit"

was adjudicated vide paras 27 & 28 at pages 14 to 17 of the impugned order.

       That vide para 28 of the order, it was observed as under:-

         "Since the issue is squarely covered by the decision of the Hon'ble Bombay
         High Court in the case of CIT v Kalapataru Colours and Chemicals
         (supra), therefore respectfully following the same, we hold that deduction
         in respect of 90% of DEPB and DFRS benefits are not allowable u/s
         80HHC of the Act. We, therefore, dismiss ground No. 3(d) of the appeal."

       That the judgment of the Hon'ble Bombay High Court in the case of CIT
Vs Kalapatru Colours and Chemicals has over ruled by Their Lordships of the
Hon'ble Supreme Court in the case of Topman Exports Vs CIT reported in 67
DTR page 185.

       That as the issue with respect to the claim of deduction u/s 80 HHC on
the receipts of DEPB entitlement stands finally settled by the judgment of Their
Lordships of Hon'ble Supreme Court in the case referred to supra, the order
passed by the Hon'ble Bench deserves to be rectified as the mistake is apparent
from record.





       It is, thus submitted that the mistake in adjudicating ground No. 3(d) of the
appeal filed by the appellant deserves to be rectified and in the circumstances it is
prayed that the miscellaneous application being filed, be kindly adjudicated
accordingly.

       Thanking you,

       Submitted by
                                                                              3

                                                   Sd/-
                                            For Trident Limited
                                     (Formerly Abhishek Industries Ltd)

     Dated 18.04.2012"


3.    We have heard the rival submissions and have also perused the

materials available on record. The ground No. 3(d) raised by the assessee in

ITA No. 321/Chd/2009) reads as under:-


          "That the Ld. CIT(A) has erred in upholding the action of
          Assessing Officer in disallowing deduction u/s 80HHC in
          respect of the amount of DEPB entitlement amounting to Rs.
          19,45,46,911/- by not considering it as an export benefit ."


4.    The Tribunal vide its order dated 27.9.2011 decided the above issue

against the assessee following the judgment of Hon'ble Bombay High Court

in the case of CIT v Kalapataru Colours and Chemicals (2010) 328 ITR 451

(Bom.).   It is observed that the Hon'ble Supreme Court in the case of M/s

Topman Exports v CIT, Mumbai reported in (2012) 67 DTR (SC) 185 has set

aside the judgment and orders of Hon'ble Bombay High Court in the case of

CIT Vs Kalapataru Colours and Chemicals (2010) 328 ITR 451(Bom.), M/s

Topman Exports and other connected appeals.          Shri Ashwani Kumar, Ld.

Counsel for the assessee submitted that the issue in respect to the claim of

deduction u/s 80HHC of the receipt of DEPB entitlement stands finally

settled by Hon'ble Supreme Court in the case of M/s Topman Exports (supra),

therefore, the order passed by the Tribunal deserves to be rectified as the

mistake is apparent from record.   Taking into consideration the entire facts

and circumstances of the present case as well as the settled legal position, we

are of the view, that the order of the Tribunal deserves to be rectified as the

mistake is apparent from record. Accordingly, we rectify our order dated
                                                                               4


27.9.2011 with respect to Ground No. 3(d) passed in ITA No.321/Chd/2009

relating to assessment year 2004-05 holding that the issue raised by the

assessee is squarely covered by the ratio laid down by the Hon'ble Supreme

Court in the case of Topman Exports Vs CIT, Mumbai reported in (2012) 67

DTR (SC) 185, and hence we remand the issue to Assessing Officer with a

direction to recompute the deduction u/s 80HHC of the Income Tax Act, 1961

(in short 'the Act'), in accordance with law and in the light of the judgment of

the Hon'ble Supreme Court in the case of Topman Exports (supra).            The

Assessing Officer is also directed to give an opportunity of being heard to the

assessee in the matter.    For statistical purposes, the ground No.3 (d) of the

appeal in ITA No. 321/Chd/2009 is allowed. The order of the Tribunal dated

27.9.2011 is rectified to the above extent.


5.    In the above terms, the Misc. Petition preferred by the assess ee stands

disposed off.


      Order Pronounced in the Open Court on this 28 t h day of May, 2012


      Sd/-                                                Sd/-

  (MEHAR SINGH)                                       (H.L.KARWA)
ACCOUNTANT MEMBER                                   VI CE PRESIDENT

Dated : 28 t h May, 2012
Rkk
Copy to:
  1.     The Appellant
  2.     The Respondent
  3.     The CIT
  4.     The CIT(A)
  5.     The DR
                           True Copy
                                                   By Order

                                               Assistant Registrar
5



 
 
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