TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 1128
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....s), which is accordingly upheld." 3. The assessee's representative further submitted that consequent to the decision of the hon'ble Supreme Court in the case of Topman Exports v. CIT [2012] 342 ITR 49 (SC) which has reversed the decision of the hon'ble Bombay High Court in the case of Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom) and held that the face value of the DEPB will fall under clause (iiib) of section 28 of the Income-tax Act, 1961 (for short "the Act") and the difference between sale value and face value of DEPB will fall under clause (iiid) of section 28 of the Act. The authorised representative further submitted that as per the above decision of the hon'ble apex court in the case of Topman Exports v. CIT [2012] 342 ITR 49 (SC), the face value of DEPB will fall under clause (iiib) of section 28 of the Act and the same is binding on the Tribunal as well. The authorised representative finally submitted that the ratio laid down by the hon'ble Supreme Court may kindly be applied for rectifying the order under section 254(2) of the Act. 4. Replying to the above contentions and submissions of the authorised representative, the learned Departmen....
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....sion scheme, and (2) rate of drawback credit attributable to the customs duty was higher than the rate of credit allowable under the duty entitlement pass book scheme being the duty remission scheme, are not satisfied in the assessee's case. The learned Commissioner of Income-tax (Appeals) has recorded a finding that the assessee has an export turnover exceeding Rs. 10 crores and has not fulfilled the conditions set out in the third proviso to section 80HHC and therefore, the assessee is not entitled to a deduction under section 80HHC on the amount received on transfer of DEPB in the proportion as the export turnover bears to the total turnover of the business carried out by the assessee. The issue involved in the present case is now covered by the decision of the hon'ble Bombay High Court in the case of Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom) referred to above and in the light of that decision, we do not find any reason to interfere with the order of the learned Commissioner of Income-tax (Appeals), which is accordingly upheld." 6. From a bare reading of the above order of the Tribunal we clearly observe that the Tribunal has followed decision of the hon&....
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.... of the taxing statute and if as per the words used in Explanation (baa) to section 80HHC read with the words used in clauses (iiid) and (iiie) of section 28, the assessee was entitled to a deduction under section 80HHC on export profits, the benefit of such deduction cannot be denied to the assessee. The impugned judgment and orders of the Bombay High Court are accordingly set aside. The appeals are allowed to the extent indicated in this judgment. The Assessing Officer is directed to compute the deduction under section 80HHC in the case of the appellants in accordance with this judgment." 7. The learned authorised representative has also placed reliance on the decision of the hon'ble jurisdictional High Court of Delhi in the case of Lakshmi Sugar Mills Co. Ltd. v. CIT [2013] 212 Taxman 118 (Delhi) (Mag) wherein is has been held that : "It is apparent from section 254 that a time limit of four years from the date of the order has been prescribed in respect of the exercise of the power of rectification of a mistake apparent from the record. There is absolutely no doubt that had an appeal or other....
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.... Topman Exports (supra), therefore, the order passed by the Tribunal deserves to be rectified as the mistake is apparent from record. Taking into consid eration the entire facts and circumstances of the present case as well as the settled legal position, we are of the view that the order of the Tribunal deserves to be rectified as the mistake is apparent from record. Accordingly, we rectify our order, dated November 21, 2011, with respect to common grounds Nos. 1 and 2 passed in I. T. A. Nos. 926 to 928/Chd/2011 relating to the assessment years 2001-02, 2003-04 and 2004-05 holding that the issue raised by the assessee is squarely covered by the ratio laid down by the hon'ble Supreme Court in the case of Topman Exports v. CIT reported in [2012] 342 ITR 49 (SC), and hence we remand the issue to the Assessing Officer with a direction to recompute the deduction under section 80HHC of the Income-tax Act, 1961 (in short 'the Act'), in accordance with law and in the light of the judgment of the hon'ble Supreme Court in the case of Topman Exports v. CIT (supra). The Assessing Officer is also directed to give an opportunity of being heard to the assessee in the matter. For s....