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Showing 301 to 320 of 1244 Records

• 2013 (7) TMI 945
  
  Issues involved: Appeal against Final Order Nos. 763 to 767 of 2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai.
  
  Issue 1: Disregarding Board Circular No. 345/4/2005-TRU while deciding the appeal.
  The Tribunal's decision to disregard the Board Circular raises the question of whether the interpretation of the Central Board of Excise and Customs should be binding upon the Revenue, as held by the Apex Court and other High Courts. The issue revolves around the Tribunal's handling of the Circular in relation to the appeal.
  
  Issue 2: Taxability of service provided by respondents in manufacturing excisable product.
  The Tribunal's finding that the respondents did not provide a taxable service despite manufacturing an excisable product is challenged. The explanation provided regarding the GTA service received by the respondents and its classification as "input service" or "output service" under Cenvat Credit Rules is crucial in determining the tax implications.
  
  In a related case, C.M.A. No. 894 of 2008 was dismissed by the Court on July 5, 2013, which led to the rejection of the Revenue's appeal in the present Civil Miscellaneous Appeal. The decision in C.M.A. No. 894 of 2008 served as a precedent for the dismissal of the current appeals, with no costs imposed on either party.

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• 2013 (7) TMI 944
  

  Capital gain - LTCG OR STCG - dates of acquisition of the shares for determining capital gain - Held that:- The assessee had given the dates of allotment, but this had to be verified by the Assessing Officer. For the purpose of verification, the matter was remanded. It was directed that if the dates of allotment of shares were found to be correct, the Assessing Officer would accept the claim of the assessee relating to long term capital gain and pass consequential order. Thus, what was to be verified and examined were the dates of allotment of shares. While examining the said aspect, the Assessing Officer had to go into the question as to when the shares were actually allotted as per the stock option plan. It cannot be said here that hands of the Assessing Officer were tied and he could not have gone into the question of date of allotment and should have been treated the date of vesting as the date of allotment. There is no such observation or finding by the tribunal. In view of the concession made by the both sides, tribunal had not examined and answered any aspect on merits. The Assessing Officer has specifically gone into the question as to when the allotment has taken place i.e. the date of allotment as per the stock option plan. He had made observations in this regard and recorded his findings. The first appellate authority and tribunal have not gone into the said aspect and merits.

  We answer the question of law in favour of the appellant-Revenue and against the respondent-assessee, but with an order of remand to the tribunal for deciding whether the findings recorded by the Assessing Officer on the question of date of allotment are correct or not

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• 2013 (7) TMI 943
  

  - distinction between the word “suspicion” and the word “reasons to believe”. The statute 'when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute'.

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• 2013 (7) TMI 942
  
  Issues Involved:
  1. Addition on account of unexplained/unaccounted expenditure in construction of residential premises.
  2. Addition on account of unexplained investment in construction of a residential bungalow.
  3. Treatment of long-term capital gain as exempt u/s 10(38) of the Act.
  4. Addition on account of alleged commission expenditure for arranging bogus long-term capital gain.
  
  Summary:
  
  1. Addition on account of unexplained/unaccounted expenditure in construction of residential premises:

  The solitary dispute in ITA No. 516/PN/2012 pertains to an addition of Rs. 1,53,057/- made on account of unexplained/unaccounted expenditure in construction of residential premises. The Assessing Officer (AO) referred the valuation of the bungalow to the Departmental Valuation Officer (DVO), who valued the investment at Rs. 66,62,000/-. The difference in the value of investments was distributed over the assessment years 2002-03 to 2007-08. The CIT(A) upheld the addition. The ITAT found that incriminating material was seized showing unrecorded expenses, justifying the AO's referral to the DVO. However, the ITAT directed to reduce the DVO's estimated value by 5% for self-supervision and re-compute the addition accordingly.

  2. Addition on account of unexplained investment in construction of a residential bungalow:

  In ITA No. 522/PN/2012, the issue involved an addition of Rs. 7,41,644/- on account of unexplained investment in construction of a bungalow. The AO distributed the difference in valuation over the relevant years. The CIT(A) upheld the addition. The ITAT found no incriminating material showing unrecorded investment and held that the AO's addition based solely on the DVO's report was unjustified. The ITAT directed the deletion of the addition.

  3. Treatment of long-term capital gain as exempt u/s 10(38) of the Act:

  In ITA No. 520/PN/2012, the issue was the treatment of long-term capital gain of Rs. 1,17,47,571/- on the sale of shares of 'Fast Track Entertainment Ltd.' (FTEL), claimed as exempt u/s 10(38). The AO treated the sale proceeds as income from other sources, alleging the transactions were sham. The CIT(A) held the sale proceeds were capital gains but treated them as short-term. The ITAT found credible evidence showing the shares were held from a date prior to 11.02.2004, thus qualifying the gain as long-term and eligible for exemption u/s 10(38). The ITAT upheld the CIT(A)'s decision to treat the proceeds as capital gains but classified them as long-term.

  4. Addition on account of alleged commission expenditure for arranging bogus long-term capital gain:

  The AO made an addition of Rs. 7,20,359/- estimating commission expenditure for arranging bogus long-term capital gain. The CIT(A) deleted the addition, which was upheld by the ITAT, as the sale proceeds were treated as capital gains.

  Mutatis-mutandis Application:

  The ITAT's decisions in ITA No. 516/PN/2012 and ITA No. 520/PN/2012 were applied mutatis-mutandis to similar issues in the appeals of other family members, resulting in partial or full allowance of their appeals accordingly.

  Conclusion:

  The ITAT disposed of the captioned appeals, allowing some and dismissing others based on the detailed examination of evidence and legal principles.

  Order pronounced in the open Court on 30th July, 2013.

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• 2013 (7) TMI 941
  

  Adjustment of excess paid duty - whether appellant can adjust the duty paid excess or less from the depots of their own without resorting to refund provisions under Section 11B of the Central Excise Act, 1944?

  Held that: - The judgment of Bajaj Tempo Ltd. v. CCE, Pune [2004 (7) TMI 145 - CESTAT, MUMBAI] is squarely applicable to this case where appeal filed by Bajaj Tempo Ltd. was allowed holding that such an adjustment is proper.

  Appeal allowed - decided in favor of appellant.

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• 2013 (7) TMI 940
  
  Issues Involved:
  1. Jurisdiction u/s 263 of the IT Act.
  2. Merits of the submissions in response to the Show Cause Notice u/s 263.
  3. Justification of the CIT in canceling the assessment order and directing a fresh assessment.
  
  Summary:
  
  Issue 1: Jurisdiction u/s 263 of the IT Act
  The Assessee challenged the jurisdiction invoked by the CIT u/s 263, arguing that the original assessment framed by the Assessing Officer (AO) for AY 2008-09 was neither "erroneous nor prejudicial to the interests of the revenue." The Tribunal noted that the CIT has the power to revise an order if it is both erroneous and prejudicial to the interests of the Revenue. However, the Tribunal found that the CIT did not adequately address the decisions relied upon by the Assessee, which is a necessary step in exercising jurisdiction u/s 263.
  
  Issue 2: Merits of the submissions in response to the Show Cause Notice u/s 263
  The Assessee contended that the CIT failed to appreciate the merits of the submissions filed in response to the Show Cause Notice. The Tribunal observed that the AO had made various inquiries and had duly applied his mind to the evidences placed before him, concluding that the Assessee was entitled to the deduction u/s 80IB(8A). The Tribunal found that the CIT's assertion that the AO accepted the Assessee's contention without proper inquiries was unfounded, as the AO had indeed made several queries and received detailed responses.
  
  Issue 3: Justification of the CIT in canceling the assessment order and directing a fresh assessment
  The CIT canceled the assessment order dated 31/12/2010 and directed the AO to make a fresh assessment, citing that there was no evidence on record to show that the condition relating to the transfer of technology developed had been fulfilled. The Tribunal found this approach to be unjustified, noting that the CIT did not ask the Assessee for a copy of the said Annexure-2, which could have been easily presented. The Tribunal also noted that there is no statutory requirement for the technology developed to be granted a patent for availing the deduction u/s 80IB(8A). The Tribunal concluded that the CIT should have given the Assessee an opportunity to produce the requisite details before setting aside the order.
  
  Conclusion:
  The Tribunal set aside the order of the CIT and restored the issue back to the file of the CIT to decide afresh after affording sufficient opportunity to the Assessee to furnish the requisite details. The appeal of the Assessee was allowed for statistical purposes.

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• 2013 (7) TMI 939
  

  Condonation of delay - Interests of justice would be served if delay in filing the appeal is condoned, subject to the condition that the appellant shall pay costs quantified at ₹ 10,000/- to the respondent-, which shall be paid within one month from today.

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• 2013 (7) TMI 938
  

  Penalty u/s 271(1)(c) - additions on account of difference in cost of construction of the house - Held that:- In assessee’s case does not warrant any imposition of penalty because books of account were audited and cost of construction was duly recorded; return was filed on this basis; thus a proper disclosure in the return of income was made; and on top of that assessee submitted registered valuer’s report. So what I find on record are three different estimates of valuers which have equal evidentiary value i.e. registered valuer’s report which supports assessee’s cost of construction; CPWD valuation which is not accepted by ITAT and PWD report which has certain unanswered issues and assessee’s year wise audited books of accounts which are not rejected and returns are filed accordingly. Penalties u/s 271(1)(c) levied by the assessing officer and confirmed by the CIT(A) for all the years under consideration are deleted.

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• 2013 (7) TMI 937
  
  The Supreme Court dismissed the Civil Appeal due to delay, while keeping the question of law open. (Case: 2013 (7) TMI 937 - SC)

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• 2013 (7) TMI 936
  
  Issues involved:
  The issues involved in this case include the rejection of the application for amendment of the Bill of Entry under Section 149 of the Customs Act, 1962, imposition of differential duty, interest, penalty, confiscation of goods, redemption fine, direction for predeposit by the Commissioner (Appeals), and rejection of the appeal for non-compliance of stay order.
  
  Application for Amendment of Bill of Entry:
  The appellant, a 100% EOU engaged in manufacturing, filed a Bill of Entry for clearance of machinery and later sought an amendment under Section 149 of the Customs Act, 1962. The adjudicating authority initially rejected the amendment claim. The matter was remanded by the Commissioner (Appeals) for reexamination based on documents at the time of clearance. Subsequently, the Assistant Commissioner rejected the application, demanded differential duty, imposed penalties, and confiscated goods. The appellant appealed, and the Commissioner (Appeals) directed a predeposit for hearing under Section 129E. The appeal was rejected for non-compliance of the stay order.
  
  Tribunal's Decision:
  The Tribunal found that the Commissioner (Appeals) had directed the adjudicating authority to consider the amendment application under Section 149 previously. Notably, the original authority demanded duty without a show cause notice during de novo proceedings. The Tribunal held that the predeposit direction by the Commissioner (Appeals) was unsustainable. The impugned order was set aside, and the Commissioner (Appeals) was directed to decide the appeal on merits without insisting on any predeposit. The appeal was allowed by way of remand for further consideration without the need for predeposit. The stay application was disposed of accordingly.

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• 2013 (7) TMI 935
  
  The Appellate Tribunal ITAT Mumbai allowed the appeal filed by the assessee against the penalty of Rs. 8,40,000 imposed under section 271(1)(c) for the assessment year 2005-06. The Tribunal had restored the matter to the AO for fresh consideration in a quantum appeal, leading to the penalty being set aside. The AO may initiate penalty proceedings again after making a fresh assessment.

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• 2013 (7) TMI 934
  

  Levy of penalty u/s 271(1)(c) - additional income offered pursuant to search and seizure conducted under Section 132 on the Kedia Group of case along with the assessee on 01.02.2008 - Held that:- Assessee had declared the amount he will be offering, in the course of statement recorded u/s 132(4), the AO has not brought on record any other materials or evidence for coming to the conclusion that the Assessee had concealed any income except for the statement recorder u/s 132(4), even the CBDT has cautioned the Assessing officers to make additions based purely on the sworn statements recorded u/s 132(4), the explanation 5 as it stood on the date of filing of return/ revised return by the Assessee, we are opinion that levy of penalty of Rs. On the additional income included in the return based only on the sworn statement of the Assessee cannot be sustained. Accordingly we allow the Assessee's appeal and delete the penalty levied u/s 271(1)(c).

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• 2013 (7) TMI 933
  
  Issues Involved:
  1. Jurisdiction of Assessing Officer.
  2. Validity of assessment proceedings.
  3. Taxability of interest income.
  4. Allowance of expenses and waiver of interest.
  5. Validity of reopening of assessment.
  
  Summary:
  
  1. Jurisdiction of Assessing Officer:
  The primary issue was whether the ADIT (International Taxation)-II, Hyderabad had jurisdiction over the assessee, Platex Ltd. The assessee contended that the jurisdiction lay with the DDIT (International Taxation), Circle 1(1), New Delhi, where the PAN was registered, and the return was initially processed. The Tribunal referenced the judgment in Vijayasanthi Investments Pvt. Ltd. vs. CCIT & Ors. (187 ITR 405) and ruled that the transfer of jurisdiction must comply with the due process u/s 127, including giving the assessee a reasonable opportunity to be heard and recording reasons for the transfer. The Tribunal found no evidence of such compliance and annulled the order passed by the ADIT (International Taxation)-II, Hyderabad.
  
  2. Validity of Assessment Proceedings:
  The Tribunal noted that the assessment proceedings by the ADIT (International Taxation)-II, Hyderabad were invalid due to the lack of a proper transfer order u/s 127. The proceedings initiated by the ADIT (International Taxation), New Delhi, were not lawfully transferred to Hyderabad, rendering the subsequent actions by the Hyderabad office without jurisdiction.
  
  3. Taxability of Interest Income:
  The Tribunal addressed the taxability of interest income earned by Platex Ltd. from debentures issued by PVP Ventures Pvt. Ltd. The Assessing Officer had taxed the interest income at 20% under section 115A, considering the provisions of the DTAA between India and Mauritius. However, the Tribunal found that the interest income was already assessed in the hands of the representative assessee, PVP Ventures Ltd., and thus, could not be reassessed in the hands of Platex Ltd.
  
  4. Allowance of Expenses and Waiver of Interest:
  The Tribunal upheld the CIT(A)'s decision allowing the deduction of expenses incurred by Platex Ltd. and recognizing the waiver of interest. The CIT(A) observed that the interest amount of Rs. 49,54,68,397 was neither paid by PVP Ventures Ltd. nor received by Platex Ltd., and thus, could not be taxed. The Tribunal supported this view, citing judgments like CIT vs. Giriraj Udyog (P) Ltd. (273 ITR 495) and Pranav Vikas (India) Ltd. vs. ACIT (116 ITD 141).
  
  5. Validity of Reopening of Assessment:
  The Tribunal found the reopening of the assessment u/s 148 invalid as the notice was issued before the cancellation of the certificate u/s 192, which was still in force. The reopening was deemed without valid reasons to believe that income had escaped assessment, leading to the allowance of the assessee's cross-objections.
  
  Conclusion:
  The Tribunal annulled the assessment order passed by the ADIT (International Taxation)-II, Hyderabad, due to lack of jurisdiction and upheld the CIT(A)'s decision on the taxability of interest income, allowance of expenses, and waiver of interest. The reopening of the assessment was also found invalid. The appeals by the Revenue were dismissed, and the assessee's appeals and cross-objections were allowed.

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• 2013 (7) TMI 932
  
  Issues Involved:
  1. Validity of mining lease post the death of the original lessee.
  2. Jurisdiction of the Delhi High Court to interfere with the grant of lease by the State Government.
  3. Entitlement of legal heirs to continue or renew the mining lease.
  4. Delay and laches in seeking legal remedy by the legal heirs.
  5. Creation of third-party rights in favor of the Mining Corporation.
  
  Detailed Analysis:
  
  1. Validity of Mining Lease Post the Death of the Original Lessee:
  The original lessee was granted a mining lease for 20 years starting from November 3, 1966. On September 7, 1982, the original lessee died, and no substitution application was filed by the legal heirs. The Madhya Pradesh High Court set aside the determination of the lease and directed the State Government to re-evaluate the matter. However, the legal heirs did not apply for a fresh grant of lease. The Supreme Court held that after the death of the original lessee, all rights under the lease came to an end, and the legal heirs were neither entitled to continue the lease nor to renew it.
  
  2. Jurisdiction of the Delhi High Court:
  The State and the Mining Corporation argued that the Delhi High Court had no jurisdiction to interfere with the order of grant passed by the State Government pursuant to the direction of the Madhya Pradesh High Court. The Supreme Court noted that the Delhi High Court failed to consider the jurisdictional issue and should have directed the first respondent to seek relief from the Madhya Pradesh High Court.
  
  3. Entitlement of Legal Heirs to Continue or Renew the Mining Lease:
  The legal heirs, including the first respondent, did not file a fresh application for the grant of a mining lease after the death of the original lessee. The Supreme Court referred to the precedent in G. Buchivenkata Rao v. Union of India, which established that legal representatives must apply afresh for a mining lease if they wish to continue the business. Rule 25A, inserted in 1991, which allows legal representatives to be deemed applicants for a mining lease, was not applicable as it was introduced nine years after the death of the original lessee.
  
  4. Delay and Laches in Seeking Legal Remedy by the Legal Heirs:
  The first respondent made representations and filed a contempt petition years after the original lessee's death and the High Court's order. The Supreme Court observed that the legal heirs did not explain the delay of over 14 years after the original lessee's death and 10 years after the High Court's order. The Court opined that the High Court should have dismissed the case on the grounds of delay and laches.
  
  5. Creation of Third-Party Rights in Favor of the Mining Corporation:
  During the pendency of the legal heirs' revision application, the State Government granted a lease to the Mining Corporation. The Supreme Court noted that third-party rights were created pursuant to the Madhya Pradesh High Court's order, which was not challenged. The Delhi High Court failed to consider this and the jurisdictional issue, which led to the Supreme Court setting aside the Delhi High Court's orders.
  
  Conclusion:
  The Supreme Court set aside the judgments of the Single Judge and the Division Bench of the Delhi High Court, allowing the appeals by the State and the Mining Corporation. The legal heirs were not entitled to continue or renew the mining lease, and the Delhi High Court lacked jurisdiction to entertain the writ petitions filed by the first respondent. The appeals were allowed with no order as to costs.

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• 2013 (7) TMI 931
  

  Deduction u/s 80 HHC(3) - whether exchange rate fluctuation was not in the nature of “other receipts” and could not be reduced from 'profit of business' under clause (baa) of Explanation? - Held that:- As we have already held that words appearing in Explanation (baa) do not support the argument of the revenue that amount received on account of foreign exchange fluctuation should not be included in the export income of the party, the Income Tax Appellate Tribunal was right in holding that amount received for exchange rate fluctuation does not fall within the expression “other receipts” and shall not be reduced from profit in terms of Explanation (baa) to Section 80 HHC of the Act. In this view of the matter, the question of law is answered in favour of the assessee and against the revenue

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• 2013 (7) TMI 930
  
  Issues involved: Appeal challenging order passed by Income Tax Appellate Tribunal on questions related to insurance claim, exchange rate fluctuation, and premium on export quota sales under Section 80HHC of Income Tax Act.
  
  Insurance claim and exchange rate fluctuation: The High Court dismissed the appeal filed by the revenue challenging the Tribunal's decision that insurance claim and exchange rate fluctuation were not 'other receipts' to be reduced from 'profit of business' under clause (baa) of Explanation below Section 80 HHC(4C) of the Income Tax Act. The Court referred to separate judgments where similar issues were decided in favor of the assessee.
  
  Premium on export quota sales: The Court also upheld the Tribunal's decision regarding the premium on export quota sales, stating that 90% of such premium could not be considered for computing deductions under Section 80HHC of the Income Tax Act. This decision was in line with previous judgments where similar issues were decided against the revenue and in favor of the assessee.
  
  Conclusion: The High Court answered the questions of law in accordance with the separate judgments passed in similar cases, ultimately dismissing the appeal and ruling in favor of the assessee.

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• 2013 (7) TMI 929
  
  The High Court of Andhra Pradesh dismissed the revision petition as no illegality or infirmity was found in the order passed by the Tribunal. The Tribunal's decision was based on the fact that the Advance Ruling relied upon was not applicable to the case, citing a judgment in the case of M/s. Maxworth Plywood Pvt. Ltd. vs. The Assistant Commissioner.

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• 2013 (7) TMI 928
  
  Issues involved: The judgment involves challenges to the order passed by the Income Tax Appellate Tribunal on questions related to the treatment of insurance claim, exchange rate fluctuation, and sales tax under section 80 HHC(4C) and section 80HHC of the Income Tax Act.
  
  Treatment of insurance claim and exchange rate fluctuation: The High Court upheld the Tribunal's decision that insurance claim and exchange rate fluctuation were not to be considered as 'other receipts' and that 90% of such receipts could not be reduced from the 'profit of business' under clause (baa) of Explanation below Section 80 HHC(4C) of the Income Tax Act. This decision was consistent with previous rulings in other cases.
  
  Inclusion of sales tax in total turnover: The Court also affirmed the Tribunal's ruling that sales tax should not be included in the total turnover for computing deduction under section 80HHC of the Income Tax Act. The sales tax, realized as part of the sale proceeds of goods manufactured by the respondent, was deemed not includible in the total turnover.
  
  Conclusion: With the agreement between the parties and in line with the separate orders passed in related cases, the High Court answered questions (i) and (ii) against the revenue and in favor of the assessee. The appeal was dismissed accordingly.

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• 2013 (7) TMI 927
  

  Deduction u/s 80HHC(4C) - ITAT held insurance claim was not in the nature of 'other receipts' and 90% of such receipts could not be reduced from 'profit of business' under clause (baa) of Explanation below Section 80 HHC (4C) - Held that:- The words “any other receipt of a similar nature included in such profits” used in the explanation have to be read “edjusdem generis” to the preceding words, i.e., “brokerage”, “commission”, “rent”, “charges”. The words “similar nature” used before the words “any other receipt” refers to and alludes to the principle of “edjusdem generis” and in fact leaves no ambiguity as to legislative intent that only such receipts would fall within the meaning of sub-clause (1) of the explanation as would partake the nature of the words preceding the expression “receipts of a similar nature”. A claim for insurance arises on account of a special loss to an assessee and, therefore, does not require any degree of legal acumen or scholarship to infer that such receipt cannot be included within sub-clause (1) of the aforementioned explanation. We draw support for a conclusion from a judgment of this Court in CIT Vs. Khemka Containers Private Ltd. (2004 (8) TMI 68 - PUNJAB AND HARYANA High Court).

  In view of what we have discussed above, we answer the first question accordingly and hold that Commissioner of Income Tax (Appeal) and Income Tax Appellate Tribunal have not committed any error of law while holding against the revenue.

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• 2013 (7) TMI 926
  

  Claim of deduction u/s 80HHC in respect of sale of DEPB licences - Held that:- Learned counsel of the assessee submitted that all these appeals may kindly be restored back to the file of AO for fresh adjudication in the light of decisions in the cases of Topman Exports vs. CIT (supra), Eastman Industries vs. DCIT (2012 (2) TMI 100 - SUPREME COURT OF INDIA ), Avani Exports & Ors (2012 (7) TMI 190 - GUJARAT HIGH COURT ). Ld. D.R. did not object to this prayer of the assessee, therefore the matter involved in all these appeals is restored back to the file of AO for fresh adjudication

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