TMI Blog2017 (9) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... , we also directed the AO to recompute the deduction in respect of DEPB profit and accordingly, the assessee’s appeal is allowed - ITA No. 2309/Mum/2013 And ITA No. 7341/Mum/2014 - - - Dated:- 6-9-2017 - SRI MAHAVIR SINGH, JM AND SRI MANOJ KUMAR AGGARWAL, AM For The Assessee : Shri Manish Shah, AR Revenue : Shri Suman Kumar, DR ORDER PER MAHAVIR SINGH, JM: These two appeals are arising out of the different orders of CIT(A)-XX CIT(A)-31, Mumbai, in appeal Nos. CIT(A)XX/IT-197/Addl.cit.20(2)/2005-06 CIT(A)-31/IT-204/ACIT 20(20)/13-14 dated 27-12-2006 24-09-2014. The Assessments were framed by ACIT, Mumbai for the A.Ys. 2003-04 2002-03 vide orders dated 20-02-2006 30-08-2013 under section 143(3) and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on his experience very rarely retrospective amendment in revenue laws is struck down by any Court. Furthermore, the Commissioner of Income Tax (Appeal) and Income Tax Appellant Tribunal being creature of the Act cannot decide the constitutional validity of such an amendment. He also opinioned that in view of aforesaid it is not advisable to litigate and he even opinioned that the argument that only profit is to be excluded and whole is against the assessee as is evident by the Commissioner of Income Tax (Appeal)'s order who has followed binding decision of Income Tax Appellant Tribunal. 6. I say that the argument on profit was also decided against the assessee by jurisdictional High Court in the case of CIT Vs Kalpataru Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit granted earlier to a class of assessee's and is accordingly violative for its retrospective operation. This decision was delivered on 16.08.2012. I say that these decisions of Supreme Court and High Court were not brought to our notice by anyone prior to February 2013. 9. I say that the firm relied on tax consultant's advice in taking a decision that due to retrospective amendment and binding Income Tax Appellant Tribunal decision not to challenge the Commissioner of Income Tax (Appeal)'s order on this issue. I say that striking down of the retrospective amendment and binding decision of Supreme Court in the case of CIT Vs Kalpataru Colours Chemicals (2010) 328 1W 451 reversing the earlier line of cases resulted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ground no. 1, the appellant submits that Bombay High Court in the case of Vijay Silk House (Banglore) Limited vs. Union of India Anr has accepted the decision of Gujarat High Court in the case of Avani Exports others vs CIT, wherein the court has held that the retrospective amendments to section SOHHC is not constitutionally valid. 5. We find that this issue is clearly covered by the decision of Hon ble Bombay High Court in the case of CIT vs Kalpataru Colours and Chemicals 328 ITR 451 (2010) (Bom) and also followed by Mumbai Tribunal In ITA No. 1398/Mum/2012 for the Ay 2004-05 vide order dated 28-08-2013, whereby Tribunal has directed the AO to recompute the deduction under section 80HHC of the Act in respect of DEPB profit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of DEPB income in the light of Judgment of Hon ble Supreme Court in case of Topman Exports Ltd (Supra). 6. As the issue is covered, we also directed the AO to recompute the deduction in respect of DEPB profit and accordingly, the assessee s appeal is allowed. 7. Similar is the issue raised by Revenue in ITA No 7341/Mum/2014 for the AY 2002-03, whereby the same ground is raised by Revenue against the order of CIT(A) which reads as under: - 1. On the facts and circumstances of the case and in, law, the Ld. CIT(A) has erred in directing the AO to rectify' the assessment wherein the original assessment, the AO disallowed part of the deduction u/s. 80HHC of ₹ 66,72,275/- being deduction on DEPB as per the proviso 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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