TMI Blog2012 (10) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to exports and profit on sale of DEPB representing the excess of sale proceeds of DEPB over its face value is liable to be considered under section 28(iiid) at the time of its sale - in favour of assessee for statistical purposes. - I.T.A. No. 2925/Del/2007 - - - Dated:- 15-10-2012 - SHRI A.D. JAIN, AND SHRI SHAMIM YAHYA, JJ. Assessee by : Sh. S.K. Aggarwal, Adv. Department by : S h. Prithi Lal, Sr. D.R. ORDER PER SHAMIM YAHYA: AM This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XVII, New Delhi dated 30.3.2007 pertaining to assessment year 2003-04. 2. The grounds raised read as under:- i) That the order of the Ld. Commissioner of Income Tax (A)-X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 4,98,91,301/- from the profits business as per Explanation (baa) of Section 80HHC of the Act and not adding the same in the profits of the business under the proviso to subsection (3) of Section 80HHC of the Act. viii) That the conclusions and inferences of the Assessing Officer and /or Ld. Commissioner of Income Tax (A) are based on suspicions, conjectures, surmises and extraneous and irrelevant considerations. ix) That the reliefs prayed for may kindly be allowed and the orders(s) of the Assessing Officer and / or Ld. Commissioner of Income Tax (A) may kindly be quashed, set aside, annulled or modified; x) That the aforesaid Grounds of appeal are without prejudice to each other; xi) That the appellant craves leave to vary, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by this Tribunal in the assessee s own case pertaining to the A.Y. 2004-05 where the Tribunal vide its order dated 30th September, 2009 in I.T.A. No.2677/Del/2008 has restored the matter back to the file of the A.O. for fresh adjudication in the light of the decision of the Special Bench of the Tribunal dated 01.08.2009 in the case of Topman Exports in I.T.A. No.5769/Mum/06 and the ld. D.R. also accepted the said decision. 5. In the light of the aforesaid order of the Tribunal passed in assessee s own case for the A.Y. 2004-05 on identical issue, we restore the matter involved in this appeal back to the file of the A.O. for fresh adjudication in the light of the order of the Special Bench of the Tribunal in the case of Topman Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction as per the first proviso below sub-section 3 of Section 80HHC in respect of DEPB credit utilized by the assessee? 2. The orders passed by the tribunal in all these cases are brief because of the reason that the tribunal has simply followed (which it was supposed to) the decision of the ITAT, Special Bench, Mumbai in the case of Topman Export vs. I.T.O. [I.T.A. NO. 5769/MUM.2006 decided on dated 11th August, 2009.]. By that judgement, the Special Bench of the Tribunal has held that the face value of DEPB is chargeable to tax u/s. 28(iiib) at the time of accrual of income, that is, when the application for DEPB is filed with the competent authority pursuant to exports and profit in sale of DEPB representing the excess proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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