D.M. Exporters, Mumbai vs Assessee

ी संजय अरोड़ा, लेखा सद य एवं ी वजय पाल राव, या यक सद य के सम । BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RAO, JM

आयकर अपील सं./I.T.A. No. 3690/Mum/2012 ( नधा रण वष / Assessment Year: 2003-04)

D. M. Exporters, ITO, Ward-14(1)(2), 80, Kolbhat Lane, Jain Bhavan, बनाम/ Mumbai 2nd Floor, Kalbadevi Road, Vs. Mumbai-400 002 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAAFD 1917 F (अपीलाथ" /Appellant) : (#$यथ" / Respondent)

अपीलाथ" क% ओर से / Appellant by : Shri Vijay Mehta

#$यथ" क% ओर से/Respondent by : Shri Love Kumar

सनु वाई क% तार+ख / : 27.01.2015 Date of Hearing घोषणा क% तार+ख / : 30.01.2015 Date of Pronouncement आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-25, Mumbai ('CIT(A)' for short) dated 18.01.2012, dismissing the Assessee's appeal contesting its assessment u/s.143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2003-04 vide order dated 21.03.2006.

2. Opening the argument for and on behalf of the assessee, it was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the assessee's appeal is delayed by a period of 62 days. However, there are valid reasons to it, which in fact, 2 ITA No. 3690/Mum/2012 (A.Y. 2003-04) D. M. Exporters vs. ITO

stand accepted by the Tribunal in the case of another assessee, i.e., Sanjay Dineshchandra Ajmera vs. ITO (in ITA No. 3689/Mum/2012 dated 12.12.2013), placing a copy of the same on record, with in fact the subject matter of the appeal being also the same, since allowed by the Bench, so that the matter can be said to be squarely covered by the said decision.

As regards the reasons for the delay, i.e., as per the condonation application filed along with the appeal memo (per Annexures thereto) and, further, duly averred per the affidavit dated 21.05.2012 by Ravindra Dineshchandra Ajmera, the managing partner of the assessee-firm, are that the ld. CIT(A) disallowed the assessee's claim for deduction u/s.80-HHC on Duty Entitlement Pass Book (DEPB) receipt following the decision by the hon'ble jurisdictional high court in the case of CIT vs. Kalpataru Colours & Chemicals [2010] 328 ITR 451 (Bom), which stood rendered on 18.01.2012. The said decision stood disapproved by the hon'ble apex court vide its decision dated 08.02.2012 in the case of Topman Exports vs. CIT [2012] 342 ITR 49 (SC). The assessee, accordingly, moved an application u/s. 154 of the Act with the ld. CIT(A) on 29.12.2012 (Annexure A to the application) in-as-much as the judgment of the apex court lays down the law of the land, so that any decision inconsistent therewith constitutes, to that extent, a mistake apparent from record, rectifiable u/s. 154, also enclosing along with the gist of the relevant Board Circular in the matter (Ann. B). The ld. CIT(A), however, despite repeated reminders, chose not to take any action in the matter. The assessee, considering that the time was passing by, filed an appeal, and hence the delay of nearly 2 months.

On merits, the tribunal as in the case of Sanjay Dineshchandra Ajmera (supra), restored the matter back to the file of the Assessing Officer (A.O.) to recompute the deduction u/s.80-HHC in accordance with the decision by the apex court in Topman Exports (supra). In fact, the ld. AR would further continue, the tribunal has itself in several decisions recalled its earlier order confirming the denial of deduction u/s.80-HHC on DEPB/DDB following the decision in the case of Kalpataru Colours & Chemicals (supra), restoring the matter back for reconsideration.

3 ITA No. 3690/Mum/2012 (A.Y. 2003-04) D. M. Exporters vs. ITO

The ld. Departmental Representative (DR), on being questioned in the matter, could not rebut any of the assertions by the ld. AR.

3. We have heard the parties, and perused the material on record. 3.1 The assessee was, and in our view not incorrectly, perusing an alternate remedy, i.e., u/s.154, before the first appellate authority, and which explains the delay by about two months in filing the instant appeal before the tribunal. An appeal before the tribunal entails cost in terms of filing fees and counsel fees and, therefore, if the matter is in its opinion directly covered by the decision by the apex court, recourse to section 154 cannot be faulted with. Even otherwise, pursuing an alternate remedy itself establishes the assessee's bona fides with regard to the delay attending its appeal. We, therefore, admit the assessee's appeal, condoning the delay.

3.2 The facts of the case are undisputed. The assessee's claim for deduction u/s.80HHC, claimed at Rs.7,79,040/-, stood determined at nil vide the impugned assessment in view of the amendment to the Taxation Laws (Amendment) Act, 2005. The same stood confirmed in appeal following the decision by the apex court in Liberty India vs. CIT [2009] 317 ITR 218 (SC). The matter has since been considered by the apex court in Topman Exports (supra). Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the Assessing Officer to consider the assessee's claim for deduction u/s.80-HHC in light of the said decision. We decide accordingly.

4. In the result, the assessee's appeal is allowed for statistical purposes.

प0रणामतः नधा30रती क% अपील सां4यक%य उ6े7य के 8लए वीकृत क% जाती है ।

Order pronounced in the open court on January 30, 2015

Sd/- Sd/-

(Vijay Pal Rao) (Sanjay Arora) या यक सद य / Judicial Member लेखा सद य / Accountant Member

मंब ु ई Mumbai; >दनांक Dated : 30.01.2015

व. न.स./Roshani, Sr. PS 4 ITA No. 3690/Mum/2012 (A.Y. 2003-04) D. M. Exporters vs. ITO

आदे श क" # त%ल&प अ'े&षत/Copy of the Order forwarded to :

1. अपीलाथ" / The Appellant

2. #$यथ" / The Respondent

3. आयकर आयु?त(अपील) / The CIT(A)

4. आयकर आयु?त / CIT - concerned

5. वभागीय # त नDध, आयकर अपील+य अDधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड3 फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai