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B.R. Exports D1st Floor, Oberoi Garden Estates Chandivali Road Farms Chandivali, Andheri (E)Mumbai 400 072 VS. Dy. Commissioner of Income Tax Circle2(3), Pratyakshakar Bhavan Bandra Kurla Complex Mumbai 400 051
July, 07th 2012
                    ,   `' 

                 IN THE INCOME TAX APPELLATE TRIBUNAL
                               "B" BENCH, MUMBAI

           ..  ,                                   ,     

            BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER, AND
                  SHRI RAJENDRA, ACCOUNTANT MEMBER


                . / ITA no. 5879 & 5880/Mum./2011
            (   / Assessment Years : 2003­04 & 2004­05)

B.R. Exports
D­1st Floor, Oberoi Garden Estates                       .......................  /
Chandivali Farms Road                                                       Appellant
Chandivali, Andheri (E)
Mumbai 400 072

                                     v/s

Dy. Commissioner of Income Tax
Circle­2(3), Pratyakshakar Bhavan                            ...................    /
Bandra Kurla Complex                                                    Respondent
Mumbai 400 051

   ./ ./PAN/GIR no.AABFA1730B



                 / Assessee by : Mr. K.V. Beswal
                 / Revenue by             : Mr. P.C. Mourya



    /                                                    /
Date of Hearing ­ 19.06.2012                       Date of Order ­ 04.07.2012






                                   / ORDER

PER B.R. MITTAL, J.M.


      These appeals preferred by the assessee, are directed against the
impugned orders 17th January 2011, passed by the Commissioner (Appeals)­
XXXII, Mumbai, for assessment years 2003­04 and 2004­05, on common
                                                                                 B.R. Exports
                                                                                          2
grounds except the amount of deduction granted and the claim under section
80HHC of the Income Tax Act, 1961 (for short "the Act") are different. We
consider it prudent to state the grounds of appeal for assessment year
2003­04, which reads as under:­

     "1.     On the facts and circumstances of the case and in law the learned
     CIT(Appeals) erred in holding that the direction of Hon'ble Tribunal was
     inapplicable to the facts of this case. The order of the learned Assessing
     Officer as well as the CIT(A) is bad in law, void ab initio on the ground that
     the learned AO failed to follow the direction of Hon'ble Tribunal in giving effect
     to the order of ITAT.

     2.     On the facts and circumstances of the case the learned CIT(A) erred in
     not holding the impugned order of the AO bad in law as the right course
     before the AO would have been to file an appeal before the Hon'ble High
     Court or Miscellaneous application before ITAT.

     2.1    Under the circumstances the impugned order of the CIT(A) is bad in
     law.

     3.      Without prejudice to the above and in the alternative and on the merit,
     the learned AO legally erred in granting the deduction u/s 80HHC at
     Rs.4208,256 instead of Rs.1,60,85,444/- as claimed by the appellant by not
     taking into account the benefit of deduction u/s 80HHC in respect of sale of
     profit / receipt of DEPB.."


2.   Since the issues and facts are identical, we dispose off both these
appeals by this common order for the sake of convenience.


3.   These appeals are arising out of the assessment orders passed by the
Assessing Officer under section 143(3) r/w section 254 of the Act. It is
relevant to state that the Assessing Officer completed the assessment for
assessment year 2003­04 on 5th November 2003 and for assessment year
2004­05 on 30th October 2004. The Assessing Officer allowed deduction
under section 80HHC for ` 42,08,256, for assessment year 2003­04 and of `
11,96,466, for assessment year 2004­05, which were confirmed by the
learned Commissioner (Appeals). In the appeals filed before the Tribunal
being ITA no.3007/Mum./2007, for assessment year 2003­04, and ITA
no.4346/Mum./2007, for assessment year 2004­05, the Tribunal set aside
the assessment orders and restored the matter of allowing deduction under
section 80HHC, with the direction to re­compute the deduction under section
80HHC, in accordance with the view taken by the Tribunal, Special Bench,
Mumbai, in the case of Topman Export v/s ITO, 318 (AT) 87 (SB) (Mum.).
                                                                   B.R. Exports
                                                                            3

4.   The Assessing Officer, while giving effect to the orders of the Tribunal,
observed that the Hon'ble Jurisdictional High Court vide its judgment dated
29th June 2010, in the case of CIT v/s Kalpataru Colour & Chemicals, 233
CTR 313, disapproved the views of the Tribunal, Special Bench, Mumbai, in
the case of Topman Export (supra). The Assessing Officer, by applying the
said judgment of Hon'ble Jurisdictional High Court, worked out the deduction
under section 80HHC, as allowed in the original assessment orders. The
learned Commissioner (Appeals) also confirmed the action of the Assessing
Officer. Hence, these appeals before the Tribunal.


5.   At the time of hearing, the learned Counsel for the assessee submitted
that the Hon'ble Supreme Court, vide its order dated 8th February 2012, in
the case of Topman Exports v/s CIT, [2012] 67 DTR 185 (SC), has reversed
the order of the Hon'ble Jurisdictional High Court and has confirmed the view
taken by the Special Bench of the Tribunal in the case of Topman Exports
(supra). He submitted that the matter could be restored to the file of
Assessing Officer with a direction to allow deduction to the assessee under
section 80HHC of the Act in conformity with the order of the Hon'ble
Supreme Court (supra).


6.   Learned Departmental Representative has not objected to above
submissions of the learned Counsel for the assessee.





7.   In view of above submissions of the learned Representatives of the
parties and the fact that the Hon'ble Supreme Court has confirmed the view
taken by the Special Bench of the Tribunal in the case of Topman Export
(supra) and has reversed the judgment of Hon'ble Jurisdictional High Court,
we restore the matter to the file of Assessing Officer with a direction to
compute the deduction under section 80HHC of the Act following the Special
Bench decision of the Tribunal in the case of Topman Export which has now
been confirmed by the Hon'ble Supreme Court. Therefore, we allow the
ground of appeal taken by the assessee for both the assessment years under
consideration.
                                                                     B.R. Exports
                                                                               4
8.                       

10.    In the result, Revenue's appeals are allowed for statistical purpose.

                th
               4 July 2012    
       Order pronounced in the open Court on 4th July 2012



              Sd/-                                                 Sd/-
                                                              ..  
                                                                  
         RAJENDRA                                             B.R. MITTAL
     ACCOUNTANT MEMBER                                     JUDICIAL MEMBER



MUMBAI,     DATED:      4th July 2012

Copy to:

(1)    The Assessee;
(2)    The Respondent;
(3)    The CIT(A), Mumbai, concerned;
(4)    The CIT, Mumbai City concerned;
(5)    The DR, "B" Bench, ITAT, Mumbai.


                                                    TRUE COPY
                                                    BY ORDER



Pradeep J. Chowdhury                            ASSISTANT REGISTRAR
Sr. Private Secretary                     ITAT, MUMBAI BENCHES, MUMBAI
 
 
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