AGK 1 itxal388-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.388 OF 2010 The Commissioner of Income Tax – 1, Mumbai ..Appellant. Versus M/s.Uni Deritend Limited ..Respondent. Mr.Vimal Gupta for the appellant. None for the respondent. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 13 August 2010. P.C. : 1. The appeal arises out of an order of the Income Tax Appellate Tribunal for assessment year 2004-2005, dated 16 September 2009. The Tribunal dismissed the Appeal of the Revenue following the judgment of the Special Bench in the case of Topman Exports V/s. Income Tax Officer (Income Tax Appeal No.5769/Mum/2006 decided on 11 August 2009). 2. This Court has subsequently considered the issue in its decision AGK 2 itxal388-10 in Commissioner of Income Tax V/s. Kalpataru Colors and Chemicals (Income Tax Appeal (L) No.2887 of 2009). In these circumstances, we have issued a notice on 6 August 2010 to the assessee and directed that the notice shall indicate that the appeal shall be heard finally at the stage of admission. There is an office report to the effect that the assessee has been served. None appears for the assessee. 3. Since the assessee is not present before the Court though served, we are of the view that the ends of justice would be served if the impugned order of the Tribunal is set aside and the proceedings are restored to the file of the Tribunal for a fresh decision in accordance with law. The Tribunal shall, on remand have due regard to the judgment of this Court in Kalpataru Colors and Chemicals (supra). 4. The appeal is accordingly disposed of. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)