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OJMCA/64/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.
CIVIL APPLICATION No. 64 of 2008
In
TAX
APPEAL No. 859 of 2007
======================================
THE
COMMISSIONER OF INCOEM TAX - Applicant
Versus
INDO
SWISS EMBROIDERY INDUSTRIES LTD. - Respondent
======================================
Appearance
:
MR MANISH R BHATT for
Applicant.
None for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE R.H.SHUKLA
Date
: 17/07/2008
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Revenue has filed this Misc. Civil Application pointing out that
following four questions were proposed by the Revenue in Tax Appeal
No. 859 of 2007 :-
Whether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that income of Rs.2,40,667/-
from duty draw back should not be excluded from the profits eligible
for deduction under Section 80IB, though it has not been ?Sderived
from?? manufacturing activity carried on by the assessee ?
Whether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that the payments of PF
amounting to Rs.10,638/- made before filing the return are eligible
for deduction without considering the fact that the due dates in the
respective Act for the said payments is 15th every month
?
Whether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that the amendment to the
proviso to Section 43 B by the Finance Act, 2003, w.e.f. 01.04.2004
is retrospective nature ?
Whether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that the employees contribution
to the P.F. Is to be allowed in view of amendment to the proviso to
Section 43B by the Finance Act, 2003, w.e.f. 01.04.2004 even though
the omitted proviso is related to the employers contribution ???
As
a matter of fact, Question Nos. A & B were intended to be
admitted by the Court. However, question No. C was formulated by
this Court which is as under :-
?SWhether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that the amendment to the
proviso to Section 43 B by the Finance Act, 2003, w.e.f. 01.04.2004
is retrospective nature ???
Mr.
Manish R. Bhatt, learned Senior Standing Counsel appearing for the
revenue has submitted that this is a mistake apparent from the
record and hence, the order is required to be rectified. He has
further submitted that question Nos. B, C & D pertains to only
one issue and the question formulated by this Court will take care
of question Nos. B, C & D. However, first question proposed by
the revenue is a substantial question of law and as a matter of
fact, in large number of cases, this Court has formulated this
question. He has also submitted that even the Court record supports
the submission of the revenue that question No. A was intended to be
formulated.
We
have perused the record of Tax Appeal No.859 of 2007 and we have
also considered the submissions made by Mr. Bhatt. We are of the
view that question No. A proposed by the revenue is a substantial
question of law and it has been referred to in many other cases.
Not only this, at the time of admission of Tax Appeal No.859 of
2007, this Court was also inclined to admit the appeal in terms of
question No. A. However, at the time of passing the order, the said
question was not found in the order. It is, therefore, apparent
that through inadvertence, the said question was not transcribed.
In
the above view of the matter, question No.1 is required to be
formulated by the Court and accordingly, Tax Appeal No.859 of 2007
is also admitted in terms of the following question, over and above
the question which is already formulated by this Court vide order
dated 14.12.2007 :-
?SWhether
on the facts and circumstances of the case and in law was the
Appellate Tribunal right in holding that income of Rs.2,40,667/- from
duty draw back should not be excluded from the profits eligible for
deduction under Section 80IB, though it has not been ?Sderived from??
manufacturing activity carried on by the assessee ???
This
application is accordingly disposed of.
Sd/- Sd/-
[K. A. PUJ, J.] [R.H.
SHUKLA, J.]
Savariya
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