TMI Blog2012 (11) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Urvashi Shodhan, AR Respondent by: Shri Y.P.Verma, Sr. DR O R D E R PER SHRI T. R. MEENA, AM:- This miscellaneous application is filed by the assessee pointing out some mistake in the tribunal order dated 30.11.2010. 2. The mistake pointed out by the assessee in the tribunal order is this that ground No.1 2 of the C.O. for the assessment year 2004-05 was decided by the tribunal against the assessee by following the judgment of Hon ble Bombay High Court rendered in the case of CIT Vs Kalpataru Colour Chemicals Ltd Vs CIT as reported in 328 ITR 451 (Mum.) It is further submitted that this decision of Hon ble Bombay High Court has been reversed by the Hon ble Apex Court in the judgement rendered in the case of Topma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt rendered in the case of Topman Exports as per which, it was held by the Hon ble Apex Court that only the profit on sale of DEPB is to be excluded from business profit for the purpose of computation of deduction allowable to the assessee u/s 80HHC and for the purpose of this computation of profit on sale of DEPB, face value of DEPB should be considered as costs of DEPB. We also find that as per the judgment of Hon ble Apex Court in the case of Saurashtsra Kutch Stock Exchange (supra) in which the Hon ble Apex Court has referred to the judgement of Hon ble Jurisdictional High court also rendered in the case of Suhrid Geigy Ltd. Vs Commissioner of Sales Tax as reported in 237 ITR 834 wherein, it was held that if the point is covered by a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputing deduction allowable to the assessee u/s 80HHC and for the computation of profit on sale of DEPB, face value of DEPB is to be considered as costs of DEPB. We, therefore, rectify this apparent mistake in the impugned tribunal order and hold that this issue should go back to the file of the A.O. for a fresh decision as per this judgement of Hon ble Apex Court rendered in the case of Topman Exports (supra). 5. The Hon ble Gujarat High Court has held in the case of Sayaji Iron Engineering Co. Vs ACIT (2002) 253 ITR 749 (Guj.) that when Coordinate bench of the Tribunal decision is available, subsequent bench cannot differ and if the subsequent bench is not in agreement then the matter should be referred to the President for constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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