R.S. Syal, AM

1. This Miscellaneous Application u/s.254(2) of the Income-tax Act, 1961 has been moved by the assessee praying for the rectification of the order of the Tribunal dated 25.02.2011 in ITA No. 2584/Mum/2010. The learned AR contended that the Tribunal vide ex parte order has restored the matter to the file of A.O. for taking a fresh decision on the question of deduction u/s 80HHC on DEPB in the light of the judgment of the Honble jurisdictional High Court in the case of CIT v. Kalpataru Colours and Chemicals ((2010) 192 Taxman 432 (Bom.)). The learned A.R. contended that the said judgment has been reversed by the Honble Supreme Court in Topman Export v. CIT ((2012) 67 DTR (SC) 189). Copy of the latter judgment has been placed on record. It was, therefore, prayed that the Assessing Officer be directed to reconsider the matter in the light of the judgment of the Honble Supreme Court instead that of the Honble jurisdictional High Court. No objection was taken by the learned Departmental Representative on this issue.

2. Having heard the rival submissions and perused the relevant material on record it is noticed that the question of allowing deduction u/s 80HHC on DEPB was decided by the CIT(A) by relying on the Special Bench order in the case of Topman Export Vs. ITO ((2009) 318 ITR (AT) 87 (Mum.) (SB). When the appeal of the Revenue came up for hearing before the Tribunal, at that time the Special Bench order of the Tribunal in Topman Export stood reversed. That is how the tribunal restored the matter to the AO for deciding this issue in accordance with the judgment of the Honble jurisdictional High Court, which was binding on the tribunal at that time. Now, since the Honble Supreme Court has reversed the judgment of the Honble Bombay High Court, thereby restoring the Special Bench order in the case of Topman Export (supra), in our considered opinion, the matter is now required to be decided by the Assessing Officer in accordance with the law of the land i.e. the judgment of the Honble Supreme Court. As the matter has already been restored to the file of A.O., it is directed that he should consider the judgment of the Honble Supreme Court instead of that of the Honble jurisdictional High Court on the point. In the result, the Miscellaneous Application is allowed

Order pronounced in the open Court on this 16th day of March, 2012.