TMI Blog2019 (9) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... much rectifiable under Section 154 of the Act. We find that the issue of deduction under Section 80HHC of the Act on sale proceeds of DEPB license has been decided by the Hon'ble Supreme Court in the case of Topman Exports (supra). We accordingly direct the Assessing Officer to re-compute the deduction under Section 80HHC of the Act on sale proceeds of DEPB license in light of decision of Hon'ble Supreme Court in the case of Topman Exports (supra). Accordingly, the Ground raised by the assessee in appeal is allowed. - ITA NO. 4192/MUM/2012 - - - Dated:- 20-8-2019 - SHRI G.S. PANNU, VICE PRESIDENT AND SHRI RAVISH SOOD, JUDICIAL MEMBER For The Appellant : Shri Jitendra Sanghavi And Shri Amit Khatiwala For Teh Respondent : Shri Rajesh Kumar Yadav ORDER PER G.S. PANNU, VICE PRESIDENT The captioned appeal filed by the assessee is directed against an order passed by the CIT(A)-29, Mumbai dated 24.01.2011, which in turn, arises out of an order passed by the Assessing Officer under section 154 of the Income Tax Act, 1961 (in short the Act ) dated 04.02.2010 for previous year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary concerns together. Further, while computing the revised deduction under Section 80HHC of the Act, the Assessing Officer reduced 90% of the Duty drawback, Excise duty refund and DEPB from the profits of the business of the assessee and arrived at the deduction under Section 80HHC at ₹ 18,84,051/-. Aggrieved by the same, assessee preferred an appeal before CIT(A) for allowance of 100% deduction under Section 80HHC of the Act on account of sale proceeds of DEPB license. The CIT(A) upheld the action of the Assessing Officer in denying deduction under Section 80HHC of the Act on sale proceeds of DEPB license. On further appeal before the Tribunal, the Tribunal upheld the order of CIT(A). Thereafter, the Special Bench of Tribunal in the case of Topman Exports vs. ITO (OSD) 33 SOT 337 (SB) dated 11.08.2009 decided this issue in favour of the assessee. The assessee thus filed rectification application under Section 154 of the Act before the Assessing Officer. The Assessing Officer rejected the assessee s application under Section 154 of the Act vide order dated 04.02.2010 holding that the denial of deduction under Section 80HHC of the Act was rightly done in the order passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit of the legal heir, which reads as under:- .. 2. I say that the appeal against the order dated 24.01.2011 passed by the Ld. Commissioner of Income-tax (Appeals) -29, Mumbai, has been filed before the Hon ble Tribunal on 15.06.2012 for AY. 2003-04. The appeal is thus filed belatedly by 420 days before the Hon ble Tribunal. 3. I say that the Ld. CIT(A) has dismissed the appeal of the applicant because the Hon ble Jurisdictional High Court in the case of CIT vs. Kalpataru Colours And Chemicals [328 ITR 451] was against the issue involved in the assessee s case. 4. I say that I was advised by my Tax Consultant that no fruitful purpose would be served by filing an appeal before the Hon ble Tribunal since the Hon ble Jurisdictional High Courts was against the applicant and that the same was also binding on the Hon ble Tribunal. 5. I say that thereafter I was informed that the said judgement of the Hon ble Bombay High Court was reversed by the Hon ble Supreme Court in the case of Topman Exports v. CIT [ 342 ITR 49] (SC)]. 6. I say that I was accordingly advised by my Tax Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. As regards the observation of the Assessing Officer that denial of the deduction under Section 80HHC of the Act on the sale proceeds of the DEPB license, which was allowed by the Hon ble Special Bench of the Tribunal in another case, cannot be said to be mistake apparent from the record under Section 154 of the Act and cannot be rectified under Section 154 of the Act, the learned Representative relied on the decision of the Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd., 173 Taxman 322 (SC) wherein it was held that the law has always been the same. The judges only interpret the law but do not make new law. Thus, the subsequent judgment does not make the new law but only interprets the old law which was already in existence. As such, it was argued that the law declared by the Hon'ble Supreme Court in the case of Topman Exports (supra) always existed and the order passed against the said law is a patent mistake apparent from record and was thus rectifiable under Section 154 of the Act. 8. On merits, the learned Representative relied on the decision of the Hon'ble Supreme Court in the case of Topman Exports (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2017 days in filing the appeal before it. In that case also, the assessee filed delayed appeal due to the subsequent decision of the Hon'ble Supreme Court. Further, in similar circumstance, in the case of Pahilajrai Jaikishin (supra), wherein also the assessee preferred appeal before the Tribunal on the issue of deduction under Section 80HHC of the Act based on the decision of the Hon'ble Supreme Court in the case of Topman Exports (supra) after a delay of 1598 days, the delay was condoned by our co-ordinate bench. 12. Since the facts of the present case and facts in the case of decision of the Kolkata Bench of the Tribunal in the case of Magnum Exports (supra) and in the decision of our co-ordinate bench in the case of Pahilajrai Jaikishin (supra) are identical, following the said decisions, we hereby, in the interest of the justice, condone the delay of 420 days in filing the appeal and admit the appeal of the assessee. 13. As regard the decision of our co-ordinate bench in the case of Kunal Surana (supra) relied upon by the learned DR, we find that the said case is distinguishable on facts in as much as in the said case it was observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A). Thus, any order passed in contravention of such legal position can be termed as a mistake apparent from record which can be rectified under Section 154 of the Act. 16. In the present case, there is no dispute with respect to the fact that the subsequent decision of the Hon'ble Supreme Court in the case of Topman Exports (supra) has decided the issue of deduction under Section 80HHC of the Act on sale proceeds of DEPB license in favour of the assessee. Once that is so, it can be safely inferred that the legal position on the issue of deduction under Section 80HHC of the Act on sale proceeds of DEPB license has been clarified by the Hon'ble Supreme Court and which decision has a retrospective effect. As such, the legal position clarified by the Hon'ble Supreme Court was existing at the time of passing of the order by the Assessing Officer and the CIT(A). However, the order passed by the Assessing Officer was in contravention of the legal position subsequently clarified by the Hon'ble Supreme Court. Thus, it can be said that the mistake was a patent mistake, and which was apparent from the record. Accordingly, it can be termed as a mistake apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
