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TMI Blog2014 (7) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... ion had been made within the prescribed time limitation, the order of tribunal deserves to be rectified and we proceed to rectify the same by respectfully following decision of the hon'ble apex court in the case of Topman Exports v. CIT [supra] and decision Lakshmi Sugar Mills Co. Ltd. v. Asst. CIT (2012 (6) TMI 39 - DELHI HIGH COURT) as follows. - Decided in favour of assesse. - M. A. No 363 /Del/ 2012 (in I. T. A. No 5563 /D/ 2010 - - - Dated:- 1-7-2014 - SHRI P.M. JAGTAP AND DR. S.T.M. PAVALAN, JJ. For the Appellant : Ajay Mathur For the Respondent : Kejar Patel, Senior Departmental representative, ORDER Chandramohan Garg (Judicial Member).- This miscellaneous application has been filed against the order of this Tribunal vide order, dated December 16, 2011, passed in I. T. A. No. 5563/Del/2010, for the assessment year 2002-03. 2. The main contentions and submissions of the applicant-assessee are that the appeal was dismissed on the ground thus : The issue involved in the present case is now covered by the decision of the hon'ble Bombay High Court in the case of CIT v. Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. It is now an admitted position that the decision of the Spe cial Bench of the Income-tax Appellate Tribunal, Mumbai in the case of Topman Exports v. ITO [2009] 318 ITR (AT) 87 (Mum) [SB] on which reliance was placed by the assessee before the Assessing Officer, has been overruled by the decision of the hon'ble Bombay High Court in the case of CIT v. Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom), where it has been held that the entirety of the sale consideration of DEPB would fall within the purview of section 28(iiid) of the Act. Thus, the sale proceeds of DEPB including face value shall be treated as profit assessable under section 28(iiid) of the Act. The case of the assessee before the Assessing Officer that only the profit element in DEPB receipts is to be reduced from the profit for the purpose of computing deduction under section 80HHC on the basis of decision of the Special Bench of the Income-tax Appellate Tribunal in the case of Topman Exports [2009] 318 ITR (AT) 87 (Mum) [SB] is thus not maintainable. Further, it is admitted by the assessee that the twin conditions referred to in the third proviso to section 80HHC(3), i.e., (1) the assessee had an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this benefit of exclusion of a smaller figure from 'profits of the business' will not be available to an assessee having an export turnover exceeding ₹ 10 crores. In other words, where the export turnover of an assessee exceeds ₹ 10 crores, he does not get the benefit of addition of ninety per cent. of export incentive under clause (iiid) of section 28 to his export profits, but he gets a higher figure of profits of the business, which ultimately results in computation of a bigger export profit. The High Court, therefore, was not right in coming to the conclusion that as the assessee did not have the export turnover exceeding ₹ 10 crores and as the assessee did not fulfil the conditions set out in the third proviso to section 80HHC(iii), the assessee was not entitled to a deduction under section 80HHC on the amount received on transfer of the DEPB and with a view to get over this difficulty the assessee was contending that the profits on transfer of the DEPB under section 28(iiid) would not include the face value of the DEPB. It is a well- settled principle of statutory interpretation of a taxing statute that a subject will be liable to tax and will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. v. Asst. CIT in M. A. Nos. 48 to 50/Chd/2012 (in I. T. A. Nos. 926 to 928/Chd/2011 for the assessment years 2001-02, 2002-03 and 2003-04) where in the same factual matrix the Tribunal held as under thus : 4. The Tribunal vide its order dated November 21, 2011, decided the above grounds against the assessee following the judgment of the hon'ble Bombay High Court in the case of CIT v. Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom). It is observed that the hon'ble Supreme Court in the case of Topman Exports v. CIT reported in [2012] 342 ITR 49 (SC) has set aside the judgment and the orders of the hon'ble Bombay High Court in the case of CIT v. Kalpataru Colours and Chemicals [2010] 328 ITR 451 (Bom), Topman Exports and other connected appeals and the matter has been remanded to the Assessing Officer with certain directions and guidelines. Shri Subhash Aggarwal, learned counsel for the assessee submitted that the issue in respect to the claim of deduction under section 80HHC of the receipt of DEPB entitlement stands finally settled by the hon'ble Supreme Court in the case of Topman Exports (supra), therefore, the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court operates retrospectively and, therefore, it had to be regarded as it existed when the impugned order was passed by the Tribunal and, thus, a mistake has crept on the face of the record which could not be allowed to remain. We further note that the limitation for correcting mistake, that is imposed by the provisions of section 254(2), is only with respect to time and since the miscellaneous application in hand for rectification had been made within the prescribed time limitation, the order dated December 16, 2011, in I. T. A. No. 5563/Del/2010 deserves to be rectified and we proceed to rectify the same by respectfully following decision of the hon'ble apex court in the case of Topman Exports v. CIT and decision of the hon'ble jurisdictional High Court of Delhi in the case of Lakshmi Sugar Mills Co. Ltd. v. Asst. CIT (supra) as follows. Accordingly, we rectify our order dated December 16, 2011, with respect to the sole ground of the assessee in I. T. A. No. 5563/ Del/2010 for the assessment year 2012-13 by holding that the issue is squarely covered by the ratio laid down by the hon'ble Supreme Court in the case of Topman Exports. Hence, we remand the issue to the fi ..... 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