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TMI Blog2017 (9) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 under section 143(3) and 154 of the Income Tax Act, 1961(hereinafter 'the Act'). 2. At the outset, the learned Counsel for the assessee stated that this appeal is time barred by 2216 days and for the delay he has filed condonation petition along with affidavit stating the reason that the appeal by CIT(A) was disposed off vide order dated 27-12-2006 and in the said order the CIT(A) has followed the 3rd proviso under section 80HHC(3) of the Act and confirmed the action of the AO in reducing the deduction claimed by assessee under section 80HHC of the Act. It was claimed by the assessee that this appellate order of CIT(A) was received by him on 28-12-2006 and accordingly, the appeal was to be filed before Tribunal against this order on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT Vs Kalpataru Colours & Chemicals (2010) 328 ITR 451 on 29.06.2010, which was informed by our earlier tax consultant 7. I say that the assessee firm very recently in the month of February 2013 appointed Sudit K Parekh & Co., Chartered Accountants to review their tax files (Appointment letter is attached as Annexure - 1). On review of the files and after analyzing the facts related to the above mentioned assessment year, they have pointed out that as per Supreme Court decision in the case of Topman Exports Vs. Commissioner of Income Tax (2012) 67 DIR (SC) 185 the assessee firm would be eligible for deduction u/s 80NHC on the face value of DEPS which will be considered as "cash assistance" and would be taxable under section 28(iiib) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulted in the firm paying tax contrary to the provision of law. I say that on receipt of SKP's advice and reviewing legal position, the firm decided to file appeal belated by 2214 days. I say and pray that the facts constitute "sufficient cause" for delay in filing appeal." 3. The learned Counsel for the assessee filed copy of Tribunal order of Kolkata Bench in the case of Magnum Exports Vs. ACIT in ITA No. 1111/Kol/2012 for the AY 2003-04 wherein facts are exactly identical. The delay of 2078 days was condoned exactly on identical circumstances. We find that exactly identical facts and circumstances are here in the present case and hence, we condoned the delay and admit the appeal of the assessee. 4. Further, we find that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of judgement of Hon'ble Supreme Court in the case of M/s Topman Exports (2012) 342 ITR 49 (Mum) by observing as under: - "4. We have perused the records and considered the matter carefully. The dispute is regarding allowability of claim of deduction in relation to DEPB income. The special bench of Tribunal in case of Topman Exports Ltd.(33 SOT 337) had earlier held that face value of DEPB has to be considered as business income u/s 28(iii b) and in case of sale the excess of sale price over the face value has to be considered as business profit u/s 28(iii d) and deduction u/s 80HHC had to be computed accordingly. The said decision of Tribunal has however not been upheld by Hon'ble High Court of Bombay in case of CIT Vs. Kalpataru Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot permit DEPB rate profit a/s. 28(iii)(d) unless certain conditions are satisfied. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in considering decision of Hon'ble Supreme Court which was not in existence when the order was passed and treated as mistake apparent liable for rectification u/s. 154 of the I.T. Act." 8. As the Issue in this appeal of revenue is also exactly identical, and hence, taking a consistent view, we here in this appeal also confirm the order of CIT(A) and allow the deduction. This appeal of Revenue is dismissed. 9. In the result, the appeal of assessee in ITA No. 2309/Mum/2013 is allowed and Revenue's appeal in ITA No. 7341/Mum/2014 is dismissed. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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