TMI Blog2018 (10) TMI 1908X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Section 80HHC(3) are met as it is admitted by the assessee that its turnover is more than Rs ten crores . our decision is in line with decision of Hon‟ble Supreme Court in the case of Topman Exports(supra) read in conjunction with provisions of Section 28(iiib), 28(iiid) and Section 80HHC of the 1961 Act . The AO shall allow relief to the assessee strictly in accordance with decision of Hon‟ble Supreme Court in the case of Topman Exports (supra) after considering assessee‟s factual matrix. We order accordingly. - I.T.A. No. 2073/Mum/2017 - - - Dated:- 5-10-2018 - SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For the Assessee : Shri. Manish Shah For the Revenue : Shri. D.G Pansari , DR O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, filed by assessee, being ITA No. 2073/Mum/2017, is directed against appellate order dated 02.12.2016 passed by learned Commissioner of Income Tax (Appeals)-39, Mumbai (hereinafter called the CIT(A) ), for assessment year 2001-02, the appellate proceedings had arisen before learned CIT(A) from order dated 30.08.2013 passed by learned Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned income of ₹ 42,03,010/-. Subsequently , the assessment was reopened by Revenue u/s. 148 of the Act on 28.03.2008 and re-assessment was completed on 26.12.2008 without any additions and the total income re-assessed remained unchanged at ₹ 61,72,060/-. The assessee filed rectification application u/s. 154 of the Act on 11.02.2013 with Revenue by relying on decision of Hon‟ble Supreme Court in the case of Topman Exports v. CIT (2012) 342 ITR 49(SC) praying for grant of deduction u/s 80HHC wherein the assessee pointed out that face value of DEPB is in the nature of cash assistance‟ u/s 28(iiib) of the 1961 Act and accordingly 3rd proviso to Section 80HHC(3) does not apply to the case of the assessee. The said rectification application was rejected by Ld. AO vide orders dated 30.08.2013 passed u/s 154 of the 1961 Act considering this as a debatable issue which cannot be rectified within limited mandate of Section 154 of the 1961 Act and as per AO there is no mistake apparent from record in an assessment order dated 26-12-2008 passed by the AO u/s 143(3) r.w.s. 147 of the 1961 Act which can be corrected within the limited mandate of Section 154 of the Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s 143(3) r.w.s. 147 was required to be rectified u/s 154 in view of the decision of the Hon'ble Supreme Court in the case of Topman Exports v. CIT (supra) is not acceptable and, therefore, I did not find any infirmity in the order of the Id. AO. The ground is dismissed. 4. Aggrieved by the appellate order dated 02-12-2016 passed by learned CIT(A), the assessee filed an second appeal before the tribunal. The assessee submitted that deduction u/s. 80HHC as allowed by Hon‟ble Supreme Court in the case of Topman Exports(supra) to the extent of face value of DEPB be allowed as the same was held to be in the nature of cash assistance u/s 28(iiib) of the 1961 Act which is income derived from exports read with first proviso to Section 80HHC(3). The ld counsel submitted that profit on sale of DEPB is covered u/s 28(iiid) and deduction u/s 80HHC in accordance with Hon‟ble Supreme Court decision in the case of Topman Exports(supra) can only be allowed to the assessee provided conditions as are stipulated in third proviso to Section 80HHC(3) are met as turnover of the assessee is more than Rs. ten crores . It was submitted that the assessee be allowed deduction u/s 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law with effect from the date of its order and the law declared by the Supreme Court has effect not only from the date of the decision but from the inception of the statutory provision. It has been mentioned therein that the Board have been advised that the mistake arising as a result of subsequent interpretation of law by the Supreme Court would constitute a mistake apparent from record and rectificatory action under section 154 would be justified. The learned counsel for the assessee also drew our attention to the decision of Hon‟ble Supreme Court in the case of ACIT v. Saurashtra Kutch Stock Exchange Limited reported in (2008) 173 Taxman 322(SC). Our attention was also drawn to decision of the Mumbai-tribunal in assessee‟s own case for AY 2002-03 and 2003-04 in ITA no. 7341/Mum/2014 and 2309/Mum/2013 vide common order dated 06-09-2017 7. We have carefully considered rival contentions and perused the material on record including cited case laws. We have observed that The assessee had claimed deduction u/s. 80HHC of ₹ 1,68,58,026/- in the return of income originally filed with Revenue on 25-10-2001, which claim of deduction u/s 80HHC was allowed by Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date of enactment of the provision unless otherwise specified by the Hon‟ble Supreme Court in its judgment. The Hon‟ble Supreme Court do not enact law as it is the function of the Parliament to enact law but the function of Courts is only to interpret the law which existed in the statute enacted by Parliament . Once Hon‟ble Supreme Court declares the laws by interpreting the provisions of statute , then the law as interpreted by Hon‟ble Supreme Court is to be read from the date when the provision was brought into statute unless otherwise specified by the Hon‟ble Supreme Court in its judgement. Thus non consideration of the decision of Hon‟ble Supreme Court as well as subsequent interpretation of law by Hon‟ble Supreme Court and its non-consideration by Revenue in its order constitute mistake apparent from record which can be rectified u/s. 154 of the Act. The decision of Hon‟ble Supreme Court in the case ACIT v. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 173 Taxman 322 (SC) as well as circular of the department vide circular no. 68 dated 17.11.1971 binds the Revenue and supports the contention of the assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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