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TMI Blog2013 (6) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rs.2.45 crores, by relying on the Special Bench Tribunal decision in the case of Topman Exports which has subsequently been reversed. 2. The Hon'ble Supreme Court in its latest decision in the case of Tompan Exports, dated Feb.2012, held that "While the face valued of the DEPB falls under clause (iiib) of s. 28, the difference between the sale value and the face value of the DEPB (the "profit") will fall under clause (iiid) of s. 28. The High Court was not right in taking the view that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB." 3. At the outset, it is noted that there is a delay of 129 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condonation of delay. However, this does not mean that a litigant gets free license to approach the court at his will. In view of this legal and factual position, we condone the delay of 129 days in filing the appeal before the Tribunal and take up the matter for adjudication on merits. 4. The relevant facts are that the original assessment u/s 143(3) r.w.s. 147 was made on 29.11.2007 computing total income at Rs.2,20,14,240/- In this assessment order, the assessee's claim for deduction u/s 80HHC amounting to Rs.2,44,53,921/- in respect of DEPB licence was not allowed by the AO. The deduction u/s 80HHC was allowed at Rs.15,64,835/- against a claim of Rs.2,44,53,921/-. In first appeal Ld.CIT(A) confirmed the order of the AO. On second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer. The Hon'ble Tribunal has directed the Assessing Officer to recompute the deduction u/s 80HHC in respect of profit from sale of DEPB by applying the ratio of the decision in Topman Exports and Others in ITA No. 5769, 2651/Mum/2006 dated 11.08.2009. However the Assessing Officer has found that the ratio of this decision has been reversed by the jurisdictional High Court of Bombay itself in the case of the appellant only in ITAL No. 3019 of 2010 dated 25.10.2010. Hence the order of the Tribunal does not survive. The High Court has directed the Assessing Officer to apply the ratio of the decision in the case of Kalpataru Colour and Chemicals 192 Taxman 435 (Bom). Therefore I find that the Assessing Officer has acted according to law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Hon'ble High Court in the assessee's own case in ITA No. 3019 of 2010 dated 25.10.2010, due to judicial discipline, we are procedurally constrained to provide the requisite relief to the assessee as this Tribunal has no authority to direct the AO to follow the decision of the Supreme Court in contravention of the said existing direction of the jurisdictional High Court. Hence, the assessee is directed to approach the appropriate forum to seek the relief in view of the existing direction of the jurisdictional High Court. We direct and order accordingly.
6. In the result, the appeal filed by the assessee is treated as dismissed.
Order pronounced in the open court on this 07th day of June, 2013. X X X X Extracts X X X X X X X X Extracts X X X X
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