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,
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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
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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
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