For claiming deduction under sec 80HHC condition are not compulsory and CIT can direct the AO to recompute the deduction

IN THE INCOME TAX APPELLATE TRIBUNAL

MUMBAI BENCHES “H”, MUMBAI

BEFORE SHRI B. RAMAKOTAIAH (AM) AND SHRI S.S. GODARA (JM)

ITA No.5710/M/2010

ASSESSMENT YEAR: 2003-04

Deputy Commissioner of Income

Tax-1(1)), Room No.579,

Aayakar Bhavan,

M.K. Road,

Mumbai – 400 020.

(Appellant)

Vs.

M/s. Hindustan Unilever Ltd.,

Hindustan Lever House,

165/166, Backbay Reclamation,

Mumbai – 400 020.

PAN: AAACH1004N

 (Respondent)

Appellant by: Shri Goli Srinivas Rao (CIT, DR)

Respondent by: Shri Percy Pardiwala/NishantThakkar

Date of hearing: 17.4.2012

Date of pronouncement: 2.5.2012

O R D E R

PER S.S. GODARA, J.M:

The revenue has filed the instant appeal against the order of Ld. CIT (A)-1, Mumbai dated 3.3.2010 for the assessment year 2003-04.

2. In the instant appeal, there are total three grounds. Ground No. 3 is general in nature. Ground Nos. 1 and 2 raises the same issue. Both impugn the directions issued by Ld. CIT (A) to the AO to re-compute the deduction u/s 80HHC in accordance with the decision of Hon’ble Special Bench of ITAT Mumbai in the case of Topman Exports 318 ITR 87 in view of the fact that the above decision has been reversed by the Hon’ble Bombay High Court on 29.6.2010.

3. In the assessment order, qua the deduction claimed by the assessee u/s 80HHC, the Assessing Officer held that the assessee was having a turnover in excess of Rs. 10 Crores. Hence, the amount of entire DEPB of Rs. 1225.28 lacs regardless of the fact as to whether it is sold or unsold is to be removed out of the eligible profit since the assessee was not satisfying the conditions given in (a) and (b) of third proviso to sec. 80HHC.

4. In appeal, the Ld. CIT (A) after considering the arguments raised by the learned AR held that the same was covered by the Special Bench decision of ITAT Mumbai in the case of Topman Exports vs. ITO 318 ITR 87. Hence, the Ld. CIT (A) directed the AO to recomputed the deduction.

5. It is also not out of place to mention here that the Special Bench decision of ITAT Mumbai in the case of Topman Exports (supra) was overruled by the Hon’ble Jurisdictional High Court on 29.6.2010. Therefore, the revenue has filed the instant appeal before us only on the said ground i.e., order of the Hon’ble Jurisdictional High Court.

6. As already stated hereinabove, the main issue in ground nos. 1 & 2 filed by the revenue is that Hon’ble jurisdictional High Court has reversed the decision of ITAT Mumbai in the case of Topman Exports (supra).

7. During the course of hearing, both the learned representatives have very fairly stated that since the Hon’ble Apex Court has reversed the decision of Hon’ble jurisdictional High Court in Topman Exports vs. CIT, therefore, the issue involved is no more res integra as the Hon’ble Special Bench, ITAT Mumbai decision as 318 ITR 87 has been upheld.

8. Consequently, in view of the fact that the order of Hon’ble Bombay High Court has been set aside by the Hon’ble Supreme Court (supra), we are of the considered opinion that nothing survives in the instant appeal for further adjudication. Hence, we dismiss this appeal filed by the revenue.

9. In the result, the appeal filed by the revenue is dismissed.

Order pronounced in the open court on this 2nd day of May, 2012.

                                                             Sd/-                                  Sd/-

                                             (B. RAMAKOTAIAH)         (S.S. GODARA)

                                         ACCOUNTANT MEMBER   JUDICIAL MEMBER

Date: 2.5.2012

At: Mumbai

Okk

Copy to:

1. The Appellant

2. The Respondent

3. The CIT (A), Mumbai concerned

4. The CIT, Mumbai concerned

5. The DR “H” Bench, ITAT, Mumbai

// True Copy//

By Order

Assistant Registrar

ITAT, Mumbai Benches, Mumbai.